Commentary

School Choice: It Works and It’s Constitutional

This article was first published in the Cleveland Plain Dealer, February 14, 2002.

Both sides are keyed up for today. For today the U.S. Supreme Court will hear oral arguments in Cleveland’s school choice case, Zelman v. Simmons-Harris, probably the most important case of the coming term. The broad question for the Court is whether vouchers for private and public schools that participate in the Cleveland program violate the Establishment Clause of the First Amendment. More narrowly, are church and state too closely intertwined if a large majority of voucher recipients select religious schools, as the students did in Cleveland?

For those who can’t wait for the Court to decide, here’s the answer: Cleveland’s program does not violate the Establishment Clause. Indeed, when parents and students — not the state — choose their own schools, that severs the connection between government decision-making and any benefits that flow to religious institutions. Without that connection, the Establishment Clause doesn’t apply.

But the Free Exercise Clause of the First Amendment does apply, and it dictates that religious schools not be treated in a discriminatory manner. That’s why the Cleveland program is vital. It counteracts a built-in bias against religion that is implicit in public, secular education. Rather than favoring religion, vouchers continue to provide greater funding for secular alternatives than for religious schools.

The Cleveland program works like this: Vouchers, each worth $2,250, are provided to approximately 4,000 children (grades K-to-8), who may use them at participating private or public schools. Not a single public school chose to participate. But more than 50 private schools accept the vouchers, payable toward full tuition, which is capped at $2,500.

Sadly, Cleveland’s monopoly public school system meets only three of the state’s 27 performance goals. A voucher program would shatter that monopoly — affording genuine choice of religious schools, other private schools, public schools with tutoring, magnet schools, and charter schools. Yes, the Cleveland program comprises mostly religious schools, and a high percentage of voucher students attend those schools. But that doesn’t mean participation in the program is somehow manipulated by the state. Those outcomes are a function of the private, voluntary choices of educational institutions and Cleveland parents.

Who could blame a parent for rejecting the Cleveland public schools? The evidence in favor of school choice is compelling and consistent. In June 1999, for example, Harvard researchers had this to say: “Parents of voucher recipients are more likely to be `very satisfied’ with nearly every aspect of the schools they attend than are parents of students in the Cleveland public schools. Test scores in math and reading have risen in…the two schools newly established in response to the [program].” In September 2001, the Indiana Center for Evaluation reported that a “statistically significant positive impact of the program on students’ academic achievement [in Cleveland] … is consistent with work in Milwaukee, New York, Washington, D.C., and Dayton, Ohio.”

Still, the usual suspects regurgitate the usual criticisms, three of which are especially misguided. First, vouchers are accused of spawning de facto segregation. But in Cleveland and Milwaukee — the two largest school choice programs — low-income voucher recipients, mostly Hispanic and African-American, get to attend private schools that might otherwise have been limited to more affluent white families. While racial integration increases at private schools, the public schools remain largely segregated and, if anything, they are becoming more so.

Second, voucher programs supposedly reduce public school budgets. Nonsense. In Cleveland, since vouchers have been available, general operating expenditures grew more than 20 percent, from $560 million to $663 million. Per-pupil expenditures are up more than 10 percent, from $7,970 to $8,814. In Milwaukee, public school spending per pupil skyrocketed to $9,417, an increase of 55 percent.

Third, voucher schools allegedly cherry-pick the best students. Wrong again. Selections are made randomly among the applicants. Moreover, thousands of students in voucher programs have learning disabilities. In fact, state and local governments often contract with private schools to educate problem students.

In short, vouchers are effective. And if they satisfy three criteria, as they do in Cleveland, then they’re also constitutional. Under the Cleveland program, parents or students decide which schools to attend. Vouchers for both religious and secular schools are available on a nondiscriminatory basis. And although the state can assure that educational, financial, nondiscrimination, health and safety goals are met, it exercises no day-to-day control over the curriculum, personnel, and administration of religious institutions.

The schools in Cleveland, like elsewhere, exist to serve the students, not vice versa. It’s time for voucher opponents to set aside the notion that the survival of a public education monopoly is paramount, despite its wretched performance.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute, which filed a friend-of-the-court brief supporting the Cleveland voucher program.