Several of the nation’s most gifted lawyers recently argued before the U.S. Supreme Court about the fate of the embattled Cleveland Scholarship and Tutorial Program. Attentive Justices peppered advocates with pointed questions about the religious establishment and sectarian entanglement — possible prayer in classes and state supervision of participating parochial schools. The hearing, like similar hearings in lesser forums before now, took on an odd, looking‐glass quality. Attorneys and their clients competed for victory in the high‐stakes education reform fight by pretending that the issue is religion.
Just outside the courtroom, the real issue in the case was clear. Zelman v. Simmons epitomizes the passionate tooth‐and‐nail struggle between parents of children in failing schools and the education establishment. Hundreds of parents crowded the steps of the Supreme Court during the argument, waving hand‐lettered signs with statements like “options today = options tomorrow.” “School choice is power,” said the rally leader, “and we want some.”
To understand the passion behind the demonstration, which continued for hours, it is necessary to understand how truly devastated the Cleveland public schools actually are. For much of the last decade, Cleveland’s public schools met a grand total of Zero out of 27 Ohio state standards for adequacy. These schools, where a child is more likely to become a crime victim on campus than to graduate on time with senior‐level proficiency, have been declared an “academic emergency” by the state. In 1996, fewer than 1 in 10 Cleveland eighth‐graders were testing at grade level in core subjects like reading and math.
Saving the children in these schools became a political hot topic, and the Ohio legislature created a program to offer children and parents a way out. The program allows low‐income participants to attend public magnet schools, charter schools, or participating private schools with up to $2,250 from the state. Sectarian and non‐sectarian schools have been taking in these kids, as well as raising extra funds on the side to cover the costs of their education.
Parents and students love it. Surveys show parents in the program are about twice as satisfied with their private schools overall. Christine Suma, a Cleveland scholarship parent who traveled to Washington, DC for the Zelman case, said at the rally, “When the school choice program began with the Cleveland Scholarship and Tutoring Program and I received spots for my children, I thought, ‘That’s the best lottery I ever won.’ ”
Across the street from the Supreme Court stood opponents of the Cleveland program. Strangely, little was said about religion in this group, though they are ostensibly asking the Court to hold the program unconstitutional as an establishment of religion. Protestors held identical signs announcing the true source of their worry — “public funds for public schools.” This group seemed terrified of allowing the low‐income parents on the opposite curb the power to take their education money and walk. Scholarship opponents include the NEA, the American Federation of Teachers, and other organizations dedicated to preserving the monopoly prerogatives of the public educational system in the last place they exist — neighborhoods where parents are just too poor to opt out. Already abandoned for private academies by well‐off city dwellers and jealously supervised by wealthy suburbanites who can spend $400,000 on a home in a public school district they will abandon tomorrow if performance slips, these ideological holdovers from the sixties’ ascendancy of state‐controlled everything are fighting desperately for the inner city schools that represent their last bit of turf. Should lower‐income families, who cannot afford to “pay twice” for education, win the right to direct their education tax dollars to the schools of their choice, the war for central control of American education will be over.
Having lost legislative battles against reform in troubled districts, opponents of choice must rely on a legal argument to halt the popular programs. They claim the programs must be terminated because they are an establishment of religion in violation of the First Amendment. In order to violate the Establishment Clause, however, a state program must have the promotion of religion as its purpose or primary effect. This, the Cleveland scholarship opponents cannot show.
The Cleveland program has been carefully tailored to provide a wide variety of choices to families who previously had none. Targeted to families with average household earnings of about $20,000, it evenhandedly offers participating families the right to choose non‐religious magnet schools, charter schools and non‐sectarian private schools, as well as participating parochial schools. The Court should uphold the Cleveland program precisely because it’s not about the promotion of religion as its purpose or primary effect. It’s about needed education reform for parents and children trapped in a “no exit” zone.