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Overview
In
the 1980’s and early-1990’s public school systems began to
explore new ways to promote and expand school choice. Magnet
schools, open enrollment schools, theme schools, alternative
schools, charter schools, and other options were created. In
some states student opportunity scholarships and other tuition
assistance programs were put in place to make choice both
attractive and financially possible for many parents. The
expectation was that school and program options (mostly within
public school systems, i.e., intra-district) would meet
the needs, abilities, and interests of children. Moreover, it
was hoped that new options would correct inequities where they
existed.
As
public education moved into the early 2000’s the public’s
interest in school choice remained in tact.
At the federal
level the newly enacted No Child Left Behind Act
contains specific requirements for establishing school choice
options. For example, where a school fails to make adequate
yearly progress toward meeting specific student academic
progress goals for two years, parents must be given notice that
they can send their children to another higher performing school
in the school district. In addition, school systems must enact
policies allowing students who either attend a school that is
dangerous or who are the victims of violent crime at school to
transfer to another school within the school system.
At
the state level,
fueled by statewide legislative initiatives to hold individual
schools (administrators and teachers) accountable
for student academic progress, school choice (coupled with
proposals for scholarships, tuition vouchers, and tax credits)
became a subject of heated debate among policy makers. At the
same time, many parents looked to school choice as a way to move
their children out of
“low performing” schools and into “high
performing” schools. School choice, said these parents, will
create “equal access to quality educational opportunities for
all children.”
Emerging
Issues
More
often than not, today’s debate regarding school choice focuses
on ten basic questions.
These questions are (1)
Is school choice defined narrowly or broadly (e.g., will
choice options include private schools)? (2)
Are religious schools eligible to receive students? (3)
Are all students in a school district eligible to participate in
a choice program, and on what criteria is eligibility
determined? (4) Will
students who choose to leave their neighborhood school have
access to free transportation? (5)
How will parents pay for tuition and other costs? (6)
Do federal, state, and local taxes support school choice
programs? (7) Will
money be directly distributed to parents, on what criteria will
accountability for spending be based, and who will be
responsible for the auditing process? (8) Are participating schools required to automatically admit new
“choice students?” (9)
How will school choice impact on special education students? (10) Will choice programs create constitutional and/or legal problems
in the states where they are initiated?
The
above questions also raise a number of potential policy issues,
especially where school choice is linked to public
money-supported assistance (e.g., student scholarships
and vouchers) for students transferring from public to private
schools (including religious schools). On June 27, 2002, the
United States Supreme Court took an opportunity to address some
of these issues when it decided Zelman,
et al. v Simmons-Harris, et al. (2002).
Zelman
v Simmons-Harris
(2002)
The State of Ohio established the Ohio
Pilot Scholarship Program as a part of a broad effort to enhance
educational opportunities of students. More specifically, the
intent of the Pilot Program was to create school choice by
providing tuition aid (up to $2,250) for students enrolled in
the Cleveland City School District. The funds were made
available to parents according to financial need, and could be
spent at eligible public or private schools (both religious and
non-religious). For students who decided to remain in the
Cleveland City Schools the tuition aid money could be spent on
tutorial assistance, or they had the option of enrolling in a
community school or a magnet school in the District.
In
the 1999-2000 school year, none of the public schools adjacent
to the Cleveland City School District participated in the Pilot
Program. Fifty-six private schools participated in the Program
of which forty-two were affiliated with a religious group. In
total sixty percent of the students who participated in the
Pilot Program were from low income families, and ninety-six
percent of the students who elected to leave the public schools
were enrolled in private schools with a religious affiliation.
The number of students in the Program was projected to double in
the 1999-2000 school year.
Initially,
a group of Ohio taxpayers filed suit in state court. Ultimately,
the Ohio Supreme Court held that the Pilot Scholarship Program
violated certain procedural requirements of the Ohio
Constitution. The state legislature immediately met, rectified
the procedural deficiencies, but left the substantive aspects of
the Program in tact.
Plaintiffs
next took their case into a federal district court where the
primary focus changed from school choice to school vouchers. In
federal court plaintiffs claimed that the Pilot Program violated
the Establishment Clause of the First Amendment of the United
States Constitution, which requires separation of church and
state. This court granted a preliminary injunction, which was
stayed pending review by the United States Court of Appeals for
the Sixth Circuit. In December 1999, the Sixth Circuit affirmed
the district court decision, finding that the Ohio Pilot
Scholarship Program had a primary effect of advancing religion
in violation of the Establishment Clause. Subsequently the
United States Supreme Court granted certiorari.
The
Supreme Court Speaks
In
Zelman, the United States Supreme Court had to answer the
following question: Does the Ohio Pilot Scholarship Program have
a primary effect of either advancing or inhibiting religion? By
a vote of 5 to 4 the high court held that it did not. In an
opinion written by Chief Justice Rehnquist, the majority relied
on past decisions where issues of religion and public assistance
came together. Of particular importance were Mueller v Allen
(1983), Witters v Department of Social Services (1986),
Zobrest v Catalina Foothills (1993), and Agostini v
Felton (1997), wherein the Court sanctioned the concept of
“neutral educational assistance programs.”
In
crafting their analysis, the five Justices heavily relied on the
first two prongs of the three-pronged
Establishment Clause standard created in Lemon v Kurtzman
(1971). Prong one
of Lemon asks the following question: Does the program
have a clearly secular purpose? Prong
two asks: Does the program have a primary effect that either advances or
inhibits the free exercise of religion? To the majority, the
Ohio Pilot Scholarship Program is “one of true private choice,
consistent with the Mueller
line of cases, and thus constitutional. It is neutral in all
aspects towards religion…. It confers educational assistance
directly to a broad class of individuals defined without
reference to religion and permits participation of all district
schools religious and non-religious… The only preference in
the program is for low-income families.”
The Program was enacted for the sole purpose of providing
educational assistance to poor children enrolled in a “failing
public school system.” What
is more, in the Ohio Pilot Scholarship Program government money
reaches a religious school “only by way of deliberate choices
of numerous individual participants.” Thus, any advancement of
the recipient school’s religious mission is incidental, and
any endorsement of a religious message is perceived.
In
a concurring opinion, Justice O’Connor said that she did not
see the Zelman decision as marking a “dramatic break”
from the Court’s past Establishment Clause jurisprudence. In
her view the parents who take advantage of the voucher program
must show that their decision was truly an exercise of
“private choice,” and they have considered “all reasonable
educational alternatives to religious schools that are available
to parents.”
In
his concurring opinion, Justice Thomas saw Zelman as an
“emancipation’ decision. “Urban children,” he said,
“have been forced into a system that continually fails
them.” The Ohio Pilot Program gives them the educational
opportunity that they have been denied.
In
dissent, Justice Souter opined that the Ohio Pilot Scholarship
Program was far from neutral. The criteria used to select
eligible schools served as a disincentive for most private
schools, and favored church-related schools. Thus, parental
choice was not free choice. The selection available to parents
was limited to schools most of which had a religious
affiliation.
Post-Zelman
Court Action
On
August 6, 2002, The Palm Beach Press carried the
following story: “Judge Rejects School Vouchers.” Written by
Mary Ellen Flannery and Kimberly Miller, the piece reports that
a Leon County, Florida, Circuit Court Judge struck down
Florida’s school voucher statute. The statute requires rating
public schools on academic performance, and assigning each
school a letter grade (e.g., an “A”). Where a school
is labeled an “F” (failing) school for two years, a student
can transfer out of that low performing school to a higher
performing school.
In the
Judge’s opinion, the voucher program violates the Florida
Constitution, which does not allow public money to be spent on
churches or other sectarian institutions (which includes
religiously affiliated schools). The County Judge also banned
use of public money supported vouchers at all non-religiously
affiliated private schools as well, because these schools too
are a part of the same state program. The court decision was
stayed pending an appeal. It should be noted that as of this
date twenty-two other states are considering some form of
voucher plan.
Implications
for Policy
Building
sound public policy on one court decision, albeit a United
States Supreme Court decision, is risky. Educational policy
makers must proceed with caution and not over generalize the
applicability of the Court’s rationale in Zelman.
The case was narrowly focused on the issues raised by one
specific voucher program in the State of Ohio, an opportunity
scholarship program intended to enable non-affluent parents to
move their children out of “failing schools.” In this
writer’s opinion, Zelman is neither a “school
choice” case nor a “school voucher” case. It is not a
“religion” case. Zelman is best characterized as an
“enabling” case for parents, and an “equal access to
educational opportunity” case for students.
In
summary, four specific policy implications can be gleaned from
the Supreme Court’s decision in Zelman. As education
moves toward 2003, policy makers are encouraged to:
-
Establish
school choice and financial assistance programs clearly
intended and specifically designed to enable students
isolated in low performing public schools to move to more
effective schools.
-
Explore school choice programs that present parents with a
variety of alternatives (both public and private) from which
to freely select.
-
Not
automatically eliminate religiously affiliated private
schools from the alternatives available to parents.
Establish
school choice and financial assistance programs (vouchers,
opportunity scholarships) consistent with the constitutional and
legal requirements of their state.
Resources Cited
Agostini
v Felton,
117 S.Ct. 2010 (1987)
Mueller
v Allen, 103
S.Ct. 3062 (1983)
Witters
v Department of Social Services,
474 U.S. 481 (1986)
Zelman
v Simmons-Harris,
122 S.Ct. 2460 (2002)
Zobrest
v Catalina Foothills,
113 S.Ct. 2462 (1993)
No
Child Left Behind Act
(P.L. 107-110), 20 U.S.C. 6301 et. seq. (2002)
Flannery and Miller, “Judge Rejects School Vouchers,”
Section A, page 1, The
Palm Beach Press (August 6, 2002).
Richard S. Vacca
Senior Fellow CEPI
Note: The views and opinions expressed in this commentary are
those of the author. |
