What’s Next For School Choice?

IN A LONG-ANTICIPATED RULING, on June 27 the Supreme Court upheld the Cleveland school choice program against a federal constitutional challenge and made it extremely unlikely that any such challenge could prevail against similar choice programs in the future. In its landmark opinion, the Supreme Court removed one of the unfortunate obstacles that opponents of choice have attempted to use to stop the growing spread and success of choice programs nationwide. The high court ruled definitively that allowing parents to use state scholarships for private schools, even if they include religious schools, does not violate the Constitution.

The need for parental choice in schooling has never been greater. In many of America’s large and medium-sized cities, the public school systems feature crumbling, violent, and academically abysmal schools. Poor families in these areas usually have no choice regarding their children’s education because the kids are trapped in whatever failing and sometimes violent school to which they are assigned. The only hope for many such families is passage of an educational choice program that gives parents other schooling options in the short run and creates proper incentives for the public school system to improve in the future.

Unfortunately, the dream of giving poor parents a meaningful choice for their children is opposed by the prominent teachers unions and their ideological brethren, who fight tenaciously to protect the public monopoly. The teachers unions and their allies use a variety of false and emotional arguments against granting parents a choice, and they support endless and baseless legal challenges to any choice proposal that is advanced. In Ohio, the legislature overcame such obstacles and enacted an educational reform statute that gives poor parents a variety of choices whenever a school system has become so dysfunctional that the courts take it over for its failure to meet the basic educational needs of its students. Thus, the Ohio legislative choice program became available for parents in Cleveland, whose school system has been in judicial receivership for about seven years.

The Cleveland choice program authorized by the Ohio legislature provided increased spending for 23 new magnet schools and for new “community schools,” which are similar to charter schools elsewhere. It also provided a stipend for many parents to employ tutors if they kept their children in their current schools. Finally, it provided “choice scholarships” for some parents to help send their children to participating private schools or suburban public schools. When no suburban public school would accept the inner-city children, the parents who exercised this last option selected from a number of participating private schools, including non-sectarian schools, nondenominational religious schools, and religious schools of various denominations. (For more detail about the Cleveland program, see http://www.schoolchoiceinfo.org/.)

The National Education Association (NEA) and others opposed to giving poor parents any private school choice filed suit to kill this vital aspect of the legislative program. The NEA’s principal argument was that if any parent was permitted to use the tuition assistance scholarship at a religious school that would amount to an “establishment of religion” in violation of the First Amendment. Although federal courts have increasingly rejected this desperate legal gambit, the U.S. Sixth Circuit Court of Appeals ruled in favor of the NEA. The Supreme Court granted review, enjoined the Sixth Circuit’s ruling, and overruled that decision.

The Supreme Court’s landmark ruling lifts the cloud of litigation over the Cleveland school choice program and should also remove the threat of federal litigation from almost every other choice program that permits the parents to choose the school for their children. The Court ruled that when parents make the final choice, there is no reason for anyone to think the state endorsed that choice and, thus, no possible state “establishment of religion.” The Court ruled that it did not matter that government indirectly facilitated a particular choice or indirectly aided a religious institution. Nor did it matter what percentage of parents might ultimately choose a religious school (even if it is 96 percent, as in the current Cleveland program), as long as the program involved “true parental choice” and the choice plan was enacted for a valid secular purpose, such as improving educational opportunities for poor children.

The victory for choice supporters will have a striking legal, practical, and psychological impact. The likely legal effect of the ruling will be a shift in the type of challenges that are brought, from desperate arguments to despicable ones. Opponents of choice will no longer be able to bring a federal constitutional challenge to similar choice programs in good faith, although these opponents are expected to shift their legal tactics to rely on many state statutes and constitutional provisions that themselves are an outgrowth of historical religious bigotry. These new challenges should also fail, in part because the state provisions (e.g., Blaine Amendments) are invalid under the First Amendment.

The more dramatic and immediate effect of the victory will be its practical and psychological boost for the choice movement. Already, there are 10 states that have publicly sponsored private school choice programs, from vouchers to tax credits. With a green light from the high court, the possibilities for new programs are endless. While the hard work of creating new programs remains, the door is open to legislators to extend school choice to families seeking a better education for their children. For the over 50 percent of all poor children scoring below the grade level on our national tests, it is imperative that legislators act on their behalf. For the families of the 4,000 children in the Cleveland program, the impact of the Court’s decision is clear: They can return to their schools this fall.

Mr. Gaziano is Senior Fellow in Legal Studies at The Heritage Foundation. Ms. Kafer is Senior Policy Analyst for Education at The Heritage Foundation.