The Supreme Court ruled Thursday that the school‐choice program in Cleveland is constitutional. This is a great victory for America’s children, especially those children from poor and minority backgrounds who benefit the most from school choice. But while we chalk one up for freedom, we should not forget how hard the struggle has been and how many people have helped bring about this victory.
When the contemporary school‐choice movement started a dozen or so years ago, its leading protagonists probably could have met comfortably in a telephone booth. In an amazingly short period, it has grown into one of the most sophisticated, passionate, and ecumenical movements in American history. I’ve never encountered a group of people — activists, philanthropists, public officials, clergy, lawyers, parents — so motivated by good faith, willing to put aside ideological differences in pursuit of a common cause, even at enormous personal sacrifice. That is probably why the movement has come so far, so fast; and it is essential that we replicate that type of effort wherever we seek to expand freedom.
The school‐choice struggle has fought on many fronts. The decisive battles have come in the courtroom. Yet whatever the legal issues in a particular lawsuit, our core argument throughout has been that parents, not government, should have the primary responsibility and power to determine where and how their children should be educated. That we ever should have had to fight so long and so hard to establish such a basic principle is a testament to the determination and ferocity of the powerful reactionary forces dedicated to the status quo.
The education establishment and particularly the teachers unions are the most powerful special‐interest group in America. At the national level, they essentially own the Democratic party; at the state level, they wield enormous influence over elected officials in both parties; at the local level, they frequently control school boards (which is why the nostalgic cry among some conservatives for “local control” is a self‐defeating goal). The education establishment has dedicated itself and all the resources at its disposal to defeating meaningful school choice anywhere and everywhere it presents itself — as if its own pathetic existence depends on it. With luck, it does.
The enemies of school choice have fought freedom from the beginning. It started after, as one of a team of lawyers at the Landmark Legal Foundation, I first contacted Wisconsin State Rep. Polly Williams following the enactment of the Milwaukee Parental Choice Program in spring 1990. Since that conversation, my colleagues and I have litigated 16 school‐choice cases from California to Puerto Rico (I left the Landmark Legal Foundation in 1991 to co‐found the Institute for Justice but remained on the Milwaukee case).
With the first case, in Wisconsin, Polly Williams and the schools agreed to send a bus of parents and children to Madison. I flew directly to Madison so I could prepare. I would share argument time with the state’s lawyer, Warren Weinstein, and intended to hit hard on the equities.
The argument finally was held on a clear fall day in October 1992. I arrived early to take my place at counsel table alongside our local counsel, Anne Sulton. Polly was in the gallery, as were Dan Schmidt and Hillel Fradkin from the Bradley Foundation, my partner Chip, and other well wishers. But the parents and children from Milwaukee hadn’t yet arrived, and the seats were filling rapidly. Unbeknownst to me, the bus had broken down en route.
Weinstein rose to argue and was instantly interrupted by questions from all sides, particularly Justices Bablitch and Abrahamson. My adrenaline was pumping. Though I had been an insecure advocate earlier in my career, I had come to absolutely love oral argument, and I couldn’t wait for my turn.
Finally it came. As I walked to the podium, I glanced back to the rear of the courtroom, and saw that the children had arrived. But there were no seats in the courtroom, so instead I saw a row of noses pressed against the glass doors to the courtroom. I smiled and thought to myself: what a metaphor, those kids on the outside looking in. The image was the most potent fuel imaginable.
In my argument, I attempted to blend legal and equitable arguments. What this program was about was a transfer of power from bureaucrats — I gestured to the lawyers at the opposing counsel’s table — to parents, gesturing to the back of the room. The plaintiffs, I declared, wanted to wrench low‐income children out of the only good schools they had ever known; and nothing in the Wisconsin constitution — which itself, after all, guaranteed equal educational opportunities — would compel such an unjust result. Was there any principle that would limit the program to the special circumstances in Milwaukee, Justice Abrahamson wanted to know. The program was created as a tool for addressing the unique problems of large urban school districts, I replied, but there was no constitutional limitation. The Constitution obligated the state to provide a uniform system of public schools, I said, but it was free to go beyond that.
The court ruled in our favor. But it wasn’t over. There would be appeals. And there was more litigation to come. The Supreme Court’s ruling in the Cleveland case gives us great hope. But there is more to do.
The stakes are enormous. For the education establishment, the cause is about jobs and power. For the parents — and for society — the stakes are much, much higher. Nearly a half‐century after Brown v. Board of Education, nearly half of all black and Hispanic children do not graduate from high school. Poor children in inner‐city schools have much greater likelihood of winding up on welfare or in jail or than going on to college or productive livelihoods. That is because our K-12 system of education, especially in large urban centers, is a government monopoly much more responsive to special‐interest demands than in satisfying consumers. Until we alter the distribution of power, we will consign additional generations of children to educational cesspools. In climbing out from this morass, we should not worry about whether a particular reform proposal is too radical, we should worry about whether it is radical enough.
At its essence, the school‐choice movement is a civil‐rights crusade‐an effort to vindicate the sacred and unfulfilled promise of equal educational opportunities. It’s not just about ideas, but about the real lives of real people. Over the years, I’ve met hundreds of low‐income parents in cities across America. Many of them are single parents; few have high‐school diplomas let alone college degrees. But they know that in order for their children to succeed, they must somehow secure for them a high‐quality education. Unfortunately, the system has written them off — both the parents and their children. Too often, the public schools are hostile to low‐income parents and assume that they are part of the problem, not part of the solution. The schools assume the children are incapable of learning, and subject them to what President George W. Bush has characterized as the “soft bigotry of low expectations.”
But in private schools, both parents and children are transformed. The parents are not discouraged from involvement, they are required to play a role in the school and in their children’s education. The children are expected to behave, and expected to achieve‐and they do. I’ve now walked the hallways of dozens of inner‐city private schools, and the biggest difference is in the children’s faces: Regardless of the obstacles they face in their lives outside school, they are kids who are going somewhere. That look of self‐confidence, of determination, of earned pride: That is all the fuel, all the reward that my colleagues and I could possibly desire.