A child and a choice

National | Cleveland parents take the case for vouchers to the Supreme Court, hoping for a landmark ruling

Issue: "View from the Axis," March 9, 2002

in Washington-Standing at the steps of the Supreme Court on Feb. 20, a crowd sang "We shall overcome" through cheap, crackly speakers that dropped out in mid-chorus. Hundreds of parents and children, mostly black, chanted "Choice! Choice! Choice!" The cause in question wasn't voting rights or abortion, but a program that gives low-income parents in Cleveland some choices other than keeping their children in sub-standard public schools. Across the street, school-choice opponents held a smaller rally, with green signs demanding "public money for public schools" and liberal pastors who warned that vouchers erode religious liberty. When lawyers, who had been arguing what may become a landmark case on vouchers, streamed out of the courtroom, voucher foes crossed the street and the groups traded slogans as the TV cameras rolled. This battle commenced because Cleveland's public schools were so bad that a federal court in 1995 ordered the Ohio government to take control of them. The state embarked on an experiment: a pilot program in vouchers for low-income students to determine whether competition from private schools would improve public schools. The program pays 90 percent of participating students' private-school tuition, up to $2,250 per student per year. About 4,300 Cleveland children now attend private schools with vouchers. But 46 of the 56 schools participating are religious schools, so the public-education union sued, arguing that government aid to religious schools violates the Constitution. In December 2000, a federal appeals court ruled in their favor, creating confusion and doubt, since state supreme courts in Wisconsin and Ohio had approved voucher experiments in Milwaukee and Cleveland. Lawyers for the Cleveland parents are "cautiously optimistic" that the Supreme Court will rule to preserve the vouchers. Court watchers place four justices generally in favor of allowing more public space for religion, and four against, making Justice Sandra Day O'Connor the crucial swing vote. Many observers took note when Justice O'Connor argued that parents in the Cleveland program have choices beyond religious schools, including charter schools and subsidized tutoring programs within the public-school system. "Why should we not look at all the options open to the parents in having their children educated?" she asked National Education Association (NEA) lawyer Robert Chanin. Recent Supreme Court opinions also encourage voucher supporters:

  • In the Witters case of 1986, the Supreme Court unanimously upheld the use of college benefits by a blind student in the state of Washington to study for the ministry at a divinity school.
  • In the 1993 Zobrest decision, the justices upheld the use of a publicly funded interpreter by a deaf student in a Catholic high school. The interpreter translated religious as well as secular lessons.
  • In 1997, the high court's Agostini vs. Felton decision overturned two Supreme Court precedents and allowed the use of public-school teachers to provide remedial instruction inside religious schools in New York.

Anti-school-choice forces argued that the Cleveland program unconstitutionally advances religion, since the overwhelming majority of voucher students attend religious schools. (Voucher supporters note that suburban public schools choose not to accept students with vouchers.) Liberal activists also often quote from the mission statements of voucher-accepting schools to make the case that vouchers advance religion. In its rejection of the Cleveland program, the appeals-court majority noted that the brochure of St. John Nottingham Lutheran School declares "the one cardinal objective of education to which all others point is to develop devotion to God as our Creator, Redeemer, and Sanctifier." Roberta Kitchen, whose daughter Toshika Bacon attends St. John Nottingham through the voucher program, objected to that argument. "Why is it these people worry more about a cross on the wall than the drug dealers on the block or the prostitutes up the road?" she asked. "Am I supposed to be angry at the religious schools that have opened the doors to my children? What about the public schools in the suburbs that have kept their doors closed?" But school-choice opponents often portray such parents as mere funnels for improperly draining government funds from public schools. Jaws dropped during oral arguments when Mr. Chanin, the NEA's lawyer, suggested the parents' role in their children's education was "ritualistic." Liberal activists have been even more forceful. Barry Lynn, executive director of Americans United for the Separation of Church and State, recently declared that with vouchers "the parent is nothing, literally nothing, but a pipeline from the treasury of the state to the bank account of the private school." Parents in Cleveland, however, have made it clear that they're not planning on being "literally nothing" as they sing about overcoming deficient public schools that threaten to hold back their children.

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