High Court Decision Reflects True Spirit of the Constitution

This article appeared in the Milwaukee Journal Sentinel on July 6th, 2002.

The U.S. Supreme Court has resolved the pitched constitutional battle over Cleveland's school choice program, having kept parents and school reform advocates waiting until the last day of its annual session.

Supporters of choice were rewarded for their patience with the best decision they could have hoped for. Upholding Cleveland's program, the court clarified the law to make "true private choice" the touchstone of constitutionality. This decision is not merely a victory for school reform. It is also an important win for America's tradition of educational freedom.

School choice opponents argued in Zelman vs. Simmons that the Cleveland program - which offered low-income students scholarships to attend alternative private, charter or magnet schools - was an unconstitutional "establishment of religion" because many participating parents elected to send their children to parochial schools. The Supreme Court rejected that argument in a strongly worded 5-4 decision that will permanently alter the intellectual landscape of the education reform debate.

Looking carefully at a quarter century of its own church-state case law, the court found a clear boundary line between two types of cases. On one hand were cases where aid recipients, such as Cleveland's scholarship families, were allowed to make "genuine and independent choices" about where to spend the aid. On the other hand were the "direct aid" cases, where money passed directly from government coffers into religious institutions.

In every case where aid was spent at a religious institution as a result of the "independent choices of private individuals," the Supreme Court has upheld the program. They did so again in Zelman.

Just as Pell Grants may be used at religious or non-religious universities, just as Medicare patients may choose Catholic or municipal hospitals, parents of children trapped in failing public schools may constitutionally direct their education dollars to the alternative schools of their choice.

By placing true private choice at the centerpiece of its decision, the court not only resolved lingering confusion about church-state relations, but also paid homage to America's important tradition of educational freedom. The court has traditionally defended private educational alternatives against encroachment by the state, holding unconstitutional those laws that "unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of the children under their control." While the courts have thus protected the right of parents to seek out private schooling for their children, many Americans lack the resources to "pay twice" for education, once with their tax dollars, and a second time in the form of private school tuition. The Cleveland program and others like it are helping these families to take advantage of their educational freedom by redirecting their tax dollars to the schools they choose.

By enshrining the value of true private choice at the heart of its decision in Zelman, the court has helped to encourage future education reformers to offer parents and students a multiplicity of options. True private choice is now a safeguard against a constitutional challenge, and American children will be better off for it. Just as the right to speak freely has improved the level of American discourse, so the ability of all Americans to learn in freely chosen schools would improve the quality of both public and private education.

As Justice Clarence Thomas' concurring opinion in Zelman emphasizes, nowhere is true private choice more desperately necessary than in America's inner cities, now plagued with failing public schools that parents and children cannot leave.

"The promise of public school education has failed poor inner-city blacks," Thomas wrote. "Converting the (Constitution) from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in the greatest need."

The Supreme Court's decision in Zelman vs. Simmons is worthy of celebration not just because it reflects constitutional law, but also because it reflects constitutional spirit.

"As I stood at the school choice rally, I looked up the steps to the Supreme Court and saw 'Equal Justice Under The Law.' That's all I want for my children," said Cleveland school choice mom Christine Suma. "The court today gave me and so many other parents equal justice we have never enjoyed before."

The Cleveland school choice program is not just legal. It is a celebration of our freedom as Americans to choose our destinies. As Frederick Douglass said in 1894, "Education means . . . emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free."

By embracing true private choice as a constitutional touchstone, the Supreme Court has helped to secure a freer future for all American children.

Marie Gryphon

Marie Gryphon is an education analyst in the Center for Educational Freedom at the Cato Institute in Washington.