Narrowing the definition of what constitutes "public" education.
By Barbara Miner
WASHINGTON, D.C.: For 50 years, the history of public education - despite our schools' many problems and unfulfilled promises - has been one of legally expanding the definition of what constitutes "public."
Ever since the 1954 Brown decision outlawing "separate but equal" schools, various popular movements have upheld a vision of public schools as essential to democracy and have demanded legal protections for those previously marginalized - from Title IX prohibitions against gender-based discrimination (which in turn helped spawn the revolution in women's sports), to the right to a bilingual education, to the inclusion of students with disabilities in public school classrooms, to the demand that public schools respect the rights of gay and lesbian students.
The Supreme Court debated a case Feb.20 that could lead to an about face on this half century of struggle.
The justices heard oral arguments on the constitutionality of a school voucher program in Cleveland in which public tax dollars pay for tuition at private schools. This year, roughly 4,300 Cleveland students receive vouchers and 99.4 percent of them attend religious schools. A similar program exists in Milwaukee with about 10,800 students, and Florida has a small pilot program.
The case's significance goes beyond vouchers to whether public education will be replaced by a marketplace system where the role of the public is limited to making an individual "choice" to attend a particular school. The case also holds enormous potential to further President Bush's "faith-based" initiative promoting religious groups in the redefinition and privatization of the public sector.
The legal heart of the Cleveland case is whether the program violates the U.S. Constitution's "Establishment Clause," which prohibits government endorsement of religion. The justices are sharply divided, with Sandra Day O'Connor seen as the crucial swing vote. A decision is expected by the end of June.
Many observers expect the Court to issue a narrow decision on the specifics of the Cleveland case. But even a narrow ruling would have broad political ramifications.
Vouchers have been a bedrock of the conservative agenda to privatize public education and provide public dollars for private religious education. The ability to move that agenda forward, however, has been hampered by the legal cloud over vouchers.
To gain support, voucher supporters have fostered the image that vouchers are merely about providing options to low-income minority parents trapped in failing urban schools. Yet legally, it is insignificant that vouchers go mostly to low-income parents. If the Court accepts the pro-voucher argument that there is no government endorsement of religion because the voucher goes to parents, that reasoning can extend to all parents regardless of income. It can also extend to social services beyond education.
Voucher opponents generally have been unsuccessful in exposing the voucher movement's cynical use of low-income parents to build pressure for an agenda whose ultimate goal is universal vouchers for all parents - regardless of whether they are rich or poor, urban or suburban. (As a 1998 strategy paper for the Milton and Rose D. Friedman Foundation wrote, vouchers for low-income families are a "beachhead" in "the long march to universal school choice.")
Should the Cleveland case pass constitutional muster, one of the immediate issues facing the voucher movement is how to negotiate the move to universal vouchers without jeopardizing the political capital it has gained by seeming to befriend low-income minorities.
And while the perception is that the Cleveland voucher program is targeted toward African Americans, the reverse is true. African Americans constitute 71 percent of the students in the Cleveland public schools, yet they account for only 53 percent of voucher students. Whites, meanwhile, make up 19 percent of Cleveland public school students but 29 percent of voucher students. Recent research also has found that only 21 percent of voucher students had attended a Cleveland public school in the year before enrolling in the voucher program.
For voucher opponents, a Supreme Court decision upholding the constitutionality of the Cleveland program will move the battle from the courts into the policy arena. Two issues that will immediately come to the fore are money and accountability.
The money issue is simple. Taxpayer support for education is limited, particularly during recessionary times, and the money that goes to private schools will inherently reduce taxpayer willingness to fund public schools. This in turn will undercut the movement for funding equity for urban public schools and reduce money for all-important reforms such smaller classes, improved teacher quality, and reducing the achievement gap between whites and African Americans and Latinos.
School vouchers also inherently undermine the calls for greater accountability. If the government tries to impose the same accountability measures on voucher schools as on public schools, it runs the risk of excessive "entanglement" in religion, violating church/state separation.
Voucher advocates are well aware that private voucher schools can never be truly accountable. As voucher attorney Clint Bolick has argued, regulation of voucher schools "should be limited. It should not include any state oversight of curriculum, personnel or administration. Any program that creates extensive involvement by the state in the schools' internal affairs is likely to be found an unconstitutional Îexcessive entanglement.'"
In Milwaukee, home to the country's oldest and biggest voucher program, accountability is so lax that no academic data has been collected from voucher schools for more than six years. As a result, no one knows how students in voucher schools are performing academically. Furthermore, the voucher schools do not have to provide the same level of services for special education students or students who do not speak English. Because constitutional rights such as due process are not applicable in private schools, voucher schools can suspend or expel students at will.
Many people have not always appreciated the threat from vouchers, for understandable reasons. Who can disagree that public schools, particularly in urban areas, fail too many students? But it would be short-sighted to abandon public education and accept the myth that vouchers and privatization are the answer to our schools' shortcomings.
Public schools fundamentally are about trying to fulfill our vision of a more democratic America, with public instutitions reponsible to and controlled by the public at large. The voucher movement betrays that vision. It treats education as nothing more than an individualized consumer item, and asks us to settle for the "choice" to apply to a private school that in the end can do the choosing.