The Supreme Court's Zelman ruling is plainly good for poor children in Cleveland. It also proves beyond dispute that policymakers can, if they want to, craft a school-voucher program that will pass (federal) constitutional muster. Somewhere in America, there are bound to be a few legislators who had been wavering on the voucher issue who will now lend it their support. But because the constitutional fig leaf has been ripped away, the ensuing politics will likely be more naked than ever before.
I'm struck, too, by how the constitutionality of vouchers has now been entangled with other education policies and other kinds of choices. The Supreme Court's ruling hinged on whether the voucher program provides Cleveland families with a "true choice" among various kinds of schools, including but not limited to church-affiliated parochial schools.
Here is how one of the early news accounts summed it up: "Key to the court's reasoning...was that children in the Cleveland program have a theoretical choice of attending religious schools, secular private academies, suburban public schools, or charter schools run by parents or others outside the education establishment. The fact that only a handful of secular schools and no suburban public schools have signed up to accept voucher students is not the fault of the program itself, Ohio authorities say. The court majority agreed."
The four dissenters disagreed, asserting that the program's constitutionality was undone by the fact that, in Justice Souter's words, "There is...no way to interpret the 96.6 percent of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers.'' By contrast, it was the existence of a "free and genuine choice" within the program that persuaded the Court majority, led by Chief Justice Rehnquist, that it passes First Amendment muster.
Many people will be commenting on this important decision and parsing the Court's words. What strikes me hardest is that the crucial factors shaping whether a voucher program is or isn't constitutional are now, indisputably, factors within the power of policymakers and educators to shape, control and alter. Which means they now become more vulnerable to politics than to judicial interpretation. Let me illustrate:
*One reason that Cleveland parents have multiple choices available to them is Ohio also has charter schools. That's the result of a separate state policy decision, but it's also vulnerable to legislative rollback and, especially, to another round of litigation that the teacher unions are spearheading to get the Ohio charter-school program declared unconstitutional on completely different grounds. We must assume that the unions and their allies will interpret yesterday's ruling as a broad hint that, if the charter school program were to die, the voucher program might perish along with it. I hope that "charter people" and "voucher people" now see that they need each other.
*One reason that Cleveland parents have relatively few PUBLIC schools
(other than charters and urban magnets) to choose among is that, while the voucher program ostensibly allows them to attend suburban public schools, the suburban school systems around Cleveland won't let them in. Whether this is due to snobbery, racism, a political plot to minimize the voucher program, or some simpler reason (such as overcrowded suburban classrooms), we must nonetheless note that it's within the power of suburban school boards and superintendents to second-guess the choices that the legislature sought to make available for urban youngsters. By constraining those choices, they also cast a cloud (now dispelled) over the voucher program's constitutionality. The legislature, of course, could change this in a flash by mandating participation by suburban public school systems. But that's heavy-duty politics, too.
*One reason that most Cleveland voucher-users wound up in parochial schools is because the voucher level (about $2250) is too low to pay the freight at other private schools, much less to make it worthwhile for education entrepreneurs to open or expand other (secular) private school options. Putting it simply, at so meager a funding level, only a Catholic school with empty seats can "afford" to take a voucher kid. This is another problem that the legislature could easily correct (as has happened in Wisconsin), simply by boosting the voucher's value closer to the true cost of educating a child.
In sum, the Court's decision had more to do with the specific facts of the program than with abstract theories or immutable principles. Those facts, however, are creatures of policy and politics. Which means, as we somehow already knew, that the big question on many minds-will vouchers now spread-will also be answered through policy and politics. The Court has, in effect, remanded this issue to voters and legislators-and the many interest groups that seek to sway them, mostly, alas, to sway them away from giving poor children more educational options.
