Voucher Decision Opens Pandora's Box

By Barbara Miner

The day the U.S. Supreme Court decided to uphold school vouchers - and shortly after a federal appeals court had banned the Pledge of Allegiance in schools - my mother called. "I don't get it," she said. "One court says we can give all this money to religious schools, no strings attached, and another says we can't even say the Pledge in our schools. I'm confused."

"Don't worry, mom," I said. "We're all a bit confused."

My mother's bewilderment increased on Aug. 5 when a Florida court struck down that state's voucher program, based on state constitutional grounds.

Some had hoped that the U.S. Supreme Court, in taking up whether Cleveland's voucher program violated the separation of church and state, would settle the contentious issue of public dollars for private religious schools. While the June 27 decision removed the cloud of federal constitutional doubt, it certainly didn't settle the legal and policy issues swirling around vouchers.

On the legal level, the majority of states have stricter definitions of church/state separation, which leaves voucher programs open to legal challenges at that level. Perhaps more important, the Supreme Court did not address the overarching controversy: Are vouchers good public policy? Will they help or hurt our public schools?

One thing is certain, however. The court decision was a serious blow to supporters of public education and a boon to the voucher movement. Anyone who tells you different is either a masterful spin doctor or an incurable optimist.

LEGAL REPERCUSSIONS

Legally, the decision's legacy may have less to do with education and more with church/state issues, in particular President Bush's faith-based initiative. Bush's plan - an attempt to funnel public dollars to religious groups that combine proselytizing with social services such as welfare-to-work and substance- abuse programs - had been languishing even though it remained a rhetorical cornerstone of Bush's domestic agenda. The Supreme Court's decision breathed new life into the faith-based path to privatize the public sector. As Michael Joyce, former head of the conservative Bradley Foundation and current leader of a faith-based advocacy group in Washington, crowed on the day of the decision, it is now possible for "a whole host of social services" be to voucherized.

As if fulfilling Joyce's prediction, in July a federal district judge in Wisconsin cited the Supreme Court decision as she upheld public funding of Faith Works Milwaukee, a program combining "evangelistic outreach" with substance- abuse counseling.

While the decision received scant public attention, voucher advocates and constitutional scholars took note. "This is the first case to come down after the Cleveland voucher decision," said Jeff Figgatt, director of Faith Works Milwaukee, of the July ruling. "This is a ground-breaking case that takes the school voucher case and expands it."

In its school voucher decision, the U.S. Supreme Court laid out a blueprint for constitutional voucher-type programs that fund religious institutions. First, the money must pass through an individual who makes a "true private choice" to use that money at a religious institution, and second, there must be an array of religious and non-religious choices. In the Cleveland case, the 5-4 Court majority ruled that even though more than 99 percent of Cleveland vouchers go to religious schools, parents have an array of educational options, including traditional public schools, magnet schools, and charter schools. Thus, the court reasoned, the voucher program does not favor religion. And because the vouchers go to parents, not directly to a religious school, they aren't a government endorsement of religion.

While Justice David Souter wrote a sharp critique of the majority's view, in the end the conservative justices had the necessary votes.

With the federal issue resolved, legal challenges will center on the states. Most immediately, pro and anti-voucher forces are focusing on state constitutions that incorporate so-called Blaine Amendments, named after Rep. James Blaine, a Maine legislator and Speaker of the House who in 1875 spearheaded a movement to amend the U.S. constitution to more strictly prohibit government aid to religious institutions. The amendment failed on the federal level, but the stricter wording was adopted by more than 35 state constitutions, such as in Florida.

Voucher supporters have promised to go on the offensive to strike down such amendments, saying they infringe upon religious freedom. And voucher opponents hope to use Blaine Amendments to patch up the crumbling wall separating church and state.

POLICY IMPLICATIONS

Policy issues will also play out mostly on the state level.

While voucher supporters boast that as many as 20 different state legislatures will take up voucher programs in the coming year, it is unclear how successful those efforts may be. The main stumbling blocks for vouchers have always been policy issues such as money, accountability, and whether vouchers undercut efforts to improve public schools.

In an Associated Press poll on vouchers in early August, people initially supported vouchers by a roughly 5-to-4 ratio. But when asked if they support vouchers if they take money from public schools, they opposed vouchers by a 2-to-1 ratio. And in the seven statewide initiatives since 1972 when voters have been asked to approve voucher plans, the initiatives have been roundly defeated by 2-to-1 margins.

After more than a decade of unrelenting focus on vouchers (and during an era of economic prosperity), the movement has only three voucher programs to show for its work - in Cleveland, Milwaukee, and Florida.

But that may change: The day of the Supreme Court voucher decision, House Majority Leader Dick Armey (RTX) introduced a bill to provide vouchers to low-income students in Washington, D.C. President Clinton vetoed a similar bill in 1997.

And then there's the accountability issue. Private voucher schools do not have to adhere to basic requirements such as releasing information on academic achievement, or suspension and drop-out rates, or even on the racial breakdown of students. Nor are they required to hire certified teachers or provide the same level of special education or bilingual services as public schools.

Perhaps most contentious: While public schools are being forced to take an ever-broader array of tests to prove academic effectiveness, the voucher schools are exempt from such testing. Even when they do give tests, voucher schools are not required to publicly release the results. In Milwaukee, which has the oldest and largest voucher program, after spending more than $156 million on the 12-year-old program, the public has no data on the academic performance of voucher students.

WHAT'S NEXT FOR THE VOUCHER MOVEMENT?

Clearly, the voucher movement has gained political capital by targeting vouchers to low-income families and portraying itself as sympathetic to African-American and Latino families in urban areas. Just as clearly, the strategic goal of the voucher movement is universal vouchers. Tensions exist between the movement's two wings, and it is too soon to tell how this fundamental contradiction will unfold. Significantly, there was nothing in the U.S. Supreme Court decision that limits vouchers to low-income parents.

For now, most predictions are that voucher supporters will move incrementally, proposing targeted programs until they gather enough political support to make a frontal assault and call for universal vouchers.

Voucher supporters currently are hoping to please both sides by pushing low income vouchers in some areas and tuition tax credits in others. As with most tax issues, tuition tax credits play to the middle class; they serve as subsidies to more affluent parents with children already in private schools.

So far, President Bush is emphasizing tuition tax credits over vouchers, as he's mindful that his voting strength lies with middle-class suburban voters. In visits to Cleveland and Milwaukee shortly after the Supreme Court decision, Bush endorsed state-based plans but stopped short of calling for federal vouchers. Rather, he called on Congress to adopt his $3.5 billion tuition tax credit plan as part of his 2003 budget.

As schools start this fall, the future of these various initiatives may lie as much in the economy as in education politics. State and federal budgets are being pummeled with growing deficits and the stock market continues its roller coaster ride, which makes legislators nervous about spending money on new programs. You can be sure the voucher controversy is not going away, but it's too soon to tell who will win the next round.

Barbara Miner is the former managing editor of Rethinking Schools.

Fall 2002