Commentary

Happy Birthday, Zelman

By Marie Gryphon
This article originally appeared in the Brooklyn Daily Eagle & Daily Bulletin on July 14, 2003.
The end of the Supreme Court’s term this spring marked the first anniversary of Zelman v. Simmons-Harris, the historic Supreme Court decision upholding Cleveland’s school choice program. The occasion was little noted in the press, obscured as it was by a flurry of shiny new rulings on issues ranging from affirmative action to internet filtering software. But the date is notable, both because of how far the school choice movement has come and how far it has yet to go.

On one hand, the court’s decision upholding school choice has motivated legislators across the country to propose new choice programs. Colorado has already passed a new law authorizing vouchers for some low-income students in that state. The Heritage Foundation notes that in the past year more than 40 new voucher, tax credit, or charter school proposals were introduced in state legislatures. School choice plans are now under serious consideration in Texas and in the District of Columbia, where Congress may authorize a choice program directly.

States that already have school choice laws are likewise considering significant expansions of those programs. Florida is poised to double its corporate scholarship tax credit, while Ohio has recently expanded its voucher program to include Cleveland high school students.

However, school choice programs remain tiny and restrictive. Plagued by limited scholarship funds and enrollment caps, most school choice programs are oversubscribed. Families in Milwaukee and Cleveland must compete in annual lotteries for scholarships, with the losers relegated to waiting lists. Legislation proposed for the District of Columbia may similarly fund only a few thousand scholarships for students now enrolled in its disastrous public schools.

Moreover, many programs offer scholarships in amounts too low to provide students with the widest array of options. In Ohio, lottery winners may spend only $2,500. While it is a miracle of American generosity and thrift that over 50 Cleveland private schools have agreed to educate children for this amount, lawmakers must make a larger portion of education funding portable if these programs are to realize their potential.

Some choice programs, such as Florida’s Opportunity Scholarship program, apply only to children in “failing schools,” as determined by overall performance measures. No provision exists in Florida for an otherwise marginal school that is failing a particular child. As a result, many Florida children in need of choices do not qualify.

Finally, most school choice programs are geographically hobbled, applying only to urban centers. The Ohio program, for example, applies to any school district operating under federal judicial supervision. But Cleveland is the only district that qualifies for choice under this definition. The proposed District of Columbia program not only restricts the location of its beneficiaries, it restricts the location of their educational options. Participants will have to choose schools located inside the District itself, a nonsensical move that will bar students from excellent, cost-effective schools in its Virginia and Maryland suburbs.

Supporters of school choice hailed the Supreme Court’s Zelman decision as a victory. But it marked the beginning, not the end of an education reform saga. Although the teachers’ unions failed to eradicate school choice programs, they have leveraged ambivalent suburban attitudes toward choice and their formidable political clout to keep choice programs tiny, isolated and starved for funds.

Too many American families are still compelled to send their children to dangerous and dysfunctional public schools. Millions more are unhappily stuck with an otherwise passable school that has failed their particular child.

The Zelman decision capped 12 years of litigation over the constitutionality of school choice. But if the wheels of justice grind slowly, the pace of real social change is often slower still. Educational options have always been a prerogative of middle class families, who have resources to move or pay for alternative schooling in after-tax dollars. But lower-income families also deserve the liberty to choose. Existing programs in Florida, Cleveland, Arizona, and elsewhere have proven false opponents’ poisoned suggestions that lower-income parents are too foolish or inattentive to make good choices for their children. The success of these programs has bolstered a growing consensus that all families deserve educational freedom.

If the Supreme Court did not give American families the choices they are seeking, it did at least clear the way for those families to win their options in the political arena. School choice supporters should congratulate themselves on Zelman’s first anniversary, and then turn quickly to the struggles ahead.

Marie Gryphon, an attorney, is an education policy analyst at the Cato Institute, and the author ofTrue Private Choice: A Practical Guide To School Reform in the Wake of Zelman v. Simmons-Harris