If a welfare recipient uses his government check to purchase cheese, does it matter what kind he buys? What if in this person's particular neighborhood, 90 percent of the cheese for sale is Swiss? Would the government be establishing Swiss cheese as the state cheese?
In a way, that's the question the Supreme Court is being asked to decide in Zelman v. Simmons-Harris, which went before the court for oral arguments on Wednesday. Unfortunately, the litigating combatants in this case aren't irate cheese-makers and huffy separation of cheese and state activists -- that, at least, would be amusing. Instead, the issue is deadly serious. The foes are parents and teachers squaring off over the fate of the 4,456 children in Cleveland's Pilot Project Scholarship Program.
As you may have heard, this is the case that could make or break the school choice movement in America. Cleveland's pilot voucher program is in many ways the perfect test case. Started in 1995 to help children from low income families escape Cleveland's train-wreck of a school system (which was declared an emergency in 1995 by a federal judge and ordered taken over by the state of Ohio) the program gives $2,250 vouchers directly to parents to spend as they choose.
The nut of the problem is that some of these taxpayer-funded vouchers go to religious schools -- in fact, somewhere between 96 to 99 percent of them do. Opponents of the program claim that this amounts to an unconstitutional state establishment of religion. However, the religious/secular breakdown has little to do with the design of the program. The vouchers are neutral and could go to secular private schools, or even suburban public schools. It just doesn't happen very often. Only nine of the city's 51 private schools are nonreligious; and the suburban public schools have boycotted the program, refusing to accept any of the students.
So now the Supreme Court will have to decide whether the program is constitutional, or whether it fails because, basically, Cleveland doesn't have enough kinds of cheese for sale. If the court decides the latter, it could sound the death knell of the school choice movement.
The teachers' unions, needless to say, would love that. While it would certainly be possible to test other school choice programs that specifically prohibit vouchers from going to religious schools, such schools tend to be the only ones with cheap enough tuition and enough of an interest in educating poor children to make the political calculus work. While more secular private schools might pop up in a market where vouchers are already in use and have created an increased demand for private education (this has been the case in Milwaukee, which has its own voucher program), it is tough to get a program off the ground without enough private schools in the picture at the beginning.
Of course, to the NEA-types the religious side of the equation is just a fig leaf. Teachers' unions are happier than the Pope on Christmas that the vast majority of Cleveland's private schools are Catholic and Christian. It allows them to bring in the ACLU, People for the American Way, Americans for the Separation of Church and State and the like to raise a fuss about the Constitution while they stealthily tighten their grip on tax dollars and children without the means to escape.
The fact is they oppose any money going to private schools, even private money (they have loudly objected to private scholarship funds sending poor kids to private schools). One will often hear from teachers' unions of "precious resources" (are these anything like "precious bodily fluids"?) being "sucked away" from our nation's public schools. It could be argued, however, that it is the public schools that are doing the sucking.
Parents in Cleveland might certainly make that argument. It is almost physically painful to look at the statistics. Last year, the Cleveland public schools passed three of the 27 state-measured standards for student performance -- that is up from zero last year (that's right, 0, zip, zilch, nada, < 1). One-in-fourteen children in Cleveland public schools graduates on time, reading and performing math at grade level. The same number of students are victims of crimes.
But these numbers shouldn't matter to the Supreme Court. Yes, public schools in this country are a disgrace. But that doesn't affect the Constitutional issue at hand. And neither does the fact that most of the schools participating in the Cleveland program are religious -- if these are the only schools answering the call to save poor children from dying schools, so be it.
The issue, as a matter of law, is simple. As long as the parents are directing the voucher money, the state is not supporting religion.
Luckily, the court has been moving toward adopting this position in the last few years. It has recently upheld subsidies for computers and tutoring at parochial schools, and has ruled that public schools cannot ban religious groups from using school facilities after hours.
Even more encouragingly, Justice Sandra Day O'Connor, widely perceived as a swing vote in this case, indicated in her questioning that she is giving significant weight to the fact that parents have options other than religious schools, even if they are not as numerous.
Furthermore, the opposition's arguments are sounding pretty weak. Justice Breyer offered this nugget of insight: "The irony is that the better the parochial schools, in a sense the less freedom of choice there is." The Justice explained, saying that if he had children in Cleveland's public school system, he would feel compelled to send them to parochial schools to save them from the state-run mess. Just to reiterate, this was an argument against upholding the program.
A decision in the case is expected by June. If the program is upheld, it could mean a huge expansion of the idea of vouchers, which are currently only in use in Cleveland, Milwaukee, and Florida. It has the potential to be as big an advancement for education as Brown v. Board. If the program is struck down, however, children across the country will be locked up even tighter inside our juvenile detention, er, public school system.
Swiss cheese, Gouda, cheddar -- it shouldn't matter what parents choose, so long as there's a choice. It's when there's no choice that people get hurt. That's when they get stuck with government cheese.
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