Opening Argument – A Vote for Choice–And for Diversity

National Journal

No, this isn’t about abortion. Or affirmative action. It’s about saving some poor inner-city kids from their dreadful public schools by using tax dollars to give them the option of escaping to better private schools, including religious ones.

Specifically, it’s about whether such tuition "voucher" programs are either 1) an unconstitutional "establishment of religion," as U.S. District Judge Solomon Oliver Jr. of Cleveland suggested on Aug. 24; or 2) a threat to American educational ideals, to the public schools, and to poor children themselves, as President Clinton and many liberals argue.

Judge Oliver, a Clinton appointee, issued a preliminary injunction suspending a voucher program in Cleveland that pays up to $2,250 in tuition costs for low-income elementary school children. Acting on the day before many schools started their fall term, Oliver said the program was probably unconstitutional because more than 80 percent of the money goes to religious schools.

The most moving response was that of Maria Silaghi, a 34- year-old Cleveland house cleaner who is fearful that her 10-year- old son, Anthony, might have to leave his Roman Catholic grammar school:

"Please don’t take this away from us," Silaghi told The New York Times on Aug. 25. "My son needs this. . . I can’t afford to move to the suburbs. . . I’ll work 10 jobs before I send him to the public schools."

On Aug. 27, amid a public outcry, Judge Oliver allowed the program to continue during the first semester for 3,200 students who had received vouchers last year. But he blocked vouchers for 600 to 800 new enrollees, mostly 5-year-olds. And he indicated that he would probably strike the entire program down for good, after a trial in December.

Does Anthony Silaghi’s voucher violate the Constitution? The courts are badly split. A federal appeals court and the Maine Supreme Court (as well as Judge Oliver) have barred the use of vouchers in religious schools; the high courts in Ohio, Wisconsin, and Arizona have gone the other way. The U.S. Supreme Court’s precedents on public aid to religious schools are a muddle. And while the Justices seem likely to tackle the voucher issue at some point in the next two years, nobody knows how they will rule.

The current nine Justices would probably split 5-4, along liberal-conservative lines, with the outcome turning on Justice Sandra Day O’Connor, who holds the swing vote. O’Connor-watchers consider her likely — but far from certain — to uphold vouchers.

That’s what she should do. The reason is not that we need more religion in schools. The Court’s ban on state-sponsored school prayer, for example, is clearly correct, as is its rule against governmental preferences for religious institutions.

The reason is that making vouchers equally available for use at secular and religious schools would be true to the principle at the core of the Court’s church-state jurisprudence: Governments must be neutral as between religion and nonreligion, and they must avoid discriminating either in favor of religion or against it.

Justices across the ideological spectrum, including liberals such as the late, great Justice William J. Brennan Jr., have embraced this broad principle of neutrality. And although there is much dispute over how to apply it in the messy world of real cases, the Court has become more receptive in recent years to programs that provide public benefits on a nondiscriminatory basis to religious and nonreligious institutions alike.

Thus, in 1997, in Agostini vs. Felton, O’Connor explained that "we have departed from the rule… that all government aid that directly aids the educational function of religious schools is invalid." She wrote approvingly of programs that create "no financial incentive for parents to choose a sectarian school," because "the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis."

That is how voucher programs work in places like Cleveland, Milwaukee, and Florida. It’s true, as Judge Oliver stressed, that religious schools may, in practice, be the only private-school choices available to some families, since 80 percent of private schools are religious. But those families can always stay in (secular) public schools. So they have no financial incentive to choose religious schools. And in the long run, if parents prefer secular private schools, more will be created.

The fundamental question in the voucher cases, in the words of law professor Eugene Volokh of the University of California (Los Angeles), is this: "Does the Constitution require discrimination against religious schools and against parents who choose them?"

That is a question that should answer itself. Nobody suggests that it violates the U.S. Constitution to provide poor families with vouchers to send their kids to secular private schools. The neutrality principle argues for giving the same opportunity to those who prefer religious schools.

While this means using tax dollars to finance religious (as well as secular) instruction, that’s not state sponsorship of religion, because the money flows to religious schools (in the words of a 1986 Supreme Court decision) "only as a result of the genuinely independent and private choices of aid recipients" — here, of parents like Maria Silaghi.

Some argue that the Constitution bars any use of tax dollars for religious instruction. But that cannot be right, for such a rule would strike down many long-established programs of unquestioned validity. These include the GI Bill and Pell grants, which help many college students pay their tuition at religious colleges, as well as tax deductions for donations to religious charities.

So voucher programs do not violate the Constitution. But are they wise educational policy?

That’s certainly the view of a lot of low-income parents. In Cleveland and Milwaukee, thousands have moved their kids to private schools because they think they will be better off there. The sketchy research to date on student performance in voucher programs offers some (inconclusive) support for this hope. And if voucher schools don’t perform, parents can always send their kids back to the public schools.

Some critics of vouchers suggest that they know better than these parents what’s best for their children. Others stress that even if the minority who get vouchers are better off, the public schools and the students left in them will be worse off, drained of dollars and of their most motivated families.

This seems wrong as far as dollars are concerned. A well- designed voucher program for poor families frees up more money per pupil for those who remain in public schools, because each departing student’s voucher costs less than it would cost to educate him or her in public school. Beyond that, voucher programs that compete for students create strong incentives for calcified public schools to improve.

The policy case against vouchers thus comes down to what a Clinton Administration report calls the risk of "creating a two-tier educational system in which the motivated, pro-active families and students — those who have the potential to make the school system better — would attend private schools and the less- involved families and students would attend the public schools."

That’s hardly a vote of confidence in the public schools’ abilities to compete in the pursuit of educational excellence. It’s also an unlikely scenario. It won’t happen as long as voucher programs are used only to provide impecunious children with an escape route from failed public schools — not to help affluent families pay for costly alternatives to the good public schools. And it won’t happen to public schools that can show they are worth saving.

At any rate, how defensible is it for the government to require poor kids to damage their chances for personal betterment based on the conjecture that their sacrifices will, some day, help the worst public schools get better?

How many of the Democratic politicians, ACLU lawyers, and others who attack vouchers — most of whom can afford to live in places with good public schools, or to pay for private schools — would choose to sacrifice their own kids to inner-city schools? President Clinton certainly wouldn’t — in fact, he didn’t, choosing to educate his daughter, Chelsea, in a Washington private school.

In short, vouchers serve four ideals that Democrats purport to hold dear. The first is freedom to choose what’s best for oneself and one’s family. The second is nondiscrimination between religion and nonreligion. The third is diversity in education. And the fourth is creating better opportunities for poor children.

The mystery — except to cynics who see the Democrats as unprincipled lackeys of the teachers’ unions — is why so many of them are on the wrong side of this issue.