In Zelman v. Simmons‐Harris, the Court lifted the federal constitutional cloud from school choice programs that allow families to direct their funding to private as well as public schools. The decision culminates a 12‐year litigation campaign by the teachers’ unions and their allies to squelch school choice through any means possible. Yesterday was the Super Bowl, and the kids won.
As Chief Justice William Rehnquist wrote for the Court’s majority, the program “provides benefits to a wide spectrum of individuals, defined only by financial need and residence .… It permits such individuals to exercise genuine choice among options public and private, secular and religious.” For those reasons, it is “a program of true private choice.”
The bedrock principle the Court recognized is that school choice is not about establishing religion, but expanding educational opportunities for children who need them desperately. In the Cleveland City Public Schools, a child has less than a one in 14 chance of graduating on time with senior level proficiency‐and greater than one in 14 chance of being a victim of crime inside the schools.
Two years ago, the system satisfied none of the State’s 28 school district performance criteria.
The choice program creates a safety net, allowing up to 4,000 economically disadvantaged students to receive a fraction of their state aid to attend private or suburban public schools. Private schools must accept $2,500 as full payment of tuition and accept students on a random selection basis.
Every private school in Cleveland agreed to participate in the program‐but no suburban public schools did so, even though their reimbursement would have been about $6,000 per student. The U.S. Court of Appeals for the Sixth Circuit struck down the program on the grounds that the overwhelming majority of children were attending religious schools, suggesting a perverse rule of law that because not enough schools threw these children an educational life preserver, then none would be allowed to do so.
The U.S. Supreme Court applied a more common‐sense standard, which sustains aid programs if religious schools are one choice among available options (“neutrality”), and if aid is directed not by the state but by parents or students (“true private choice”). All school choice programs, whether school vouchers or tax credits for tuition or scholarships, easily meet those criteria.
Consequently, the Zelman decision should have immediate real‐world impact, as policymakers at the federal and state level seek to create options for families mired in failing public schools and to create a competitive incentive for public schools to improve. They now may do so with the knowledge that such programs pass constitutional muster.
But don’t expect the defenders of the status quo to give up easily. In addition to their federal constitutional challenges, the unions have challenged school choice programs on state constitutional grounds.
In particular, three dozen states have “Blaine Amendments,” which provide more explicit restraints against religious establishment. Those amendments trace back to the late 19th century, when anti‐Catholic activists inserted them into state constitutions in an attempt to preserve Protestant hegemony over public schools. At least 12 states have interpreted their constitutions to forbid the use of aid by religious school students, in effect discriminating against religion.
In Florida, where the question is unresolved, the unions are invoking the Blaine Amendment to block the nation’s first state‐wide voucher program, which allows students in failing public schools to shift their education funds to private or better‐performing public schools. The program has helped students escape failing schools and prodded public schools to boost their performance. It is unquestionably valid under the federal constitution, but faces a stiff challenge under a state constitution that, ironically, also guarantees a quality education for every child.
The Zelman decision for the first time allows school choice litigators to switch from defense to offense. Blaine Amendments now can be challenged as a violation of the neutrality principle under the federal constitution. And parents can seek voucher remedies for failure of states to fulfill educational obligations under their own constitutions. In terms of policy, the debate can now shift from concerns about where a child is educated to whether a child is being educated.
So the long battle continues, with much unfinished business. While lawyers and policymakers try to move the ball forward, school choice families can savor their victory. For 12 years, since the first urban school choice program was launched in Milwaukee, special interest groups have tried to pry economically disadvantaged children out of the only good schools they ever have known.
They failed in spectacular fashion. And in the process, they unwittingly established a rule of law that with luck will guide America henceforth: that parents, not bureaucrats, have the right to make essential decisions regarding their children’s education.