The Institute for Justice announced on June 9, 1992 the filing of two lawsuits that have the potential to reshape the landscape of American public education.
The Institute represents low-income parents and their children who are consigned to inadequate schools in inner-city Chicago and Los Angeles. The lawsuits seek to obtain for the parents the share of state education funds allotted to their children, to empower them to obtain a quality education outside the public schools—in essence, a “voucher” remedy. These lawsuits are the first to seek a voucher remedy for violations of state constitutional guarantees. Arguing these cases both in the courtroom and in the court of public opinion, the Institute for Justice plans literally to place defective inner-city public schools on trial, and to demonstrate that parental choice is an essential part of the solution to the crisis of inner-city education.
The Tragic Status Quo
The conflagration in south central Los Angeles in late April 1992 demonstrated vividly the depth and urgency of problems in America’s inner cities. 1
Low-income people in large cities often lack the most basic opportunities that most Americans take for granted: to walk safely on the streets, to obtain police protection for their lives and property, to shop in their neighborhoods, to pursue homeownership, to obtain jobs or open businesses, and sometimes even to obtain equal justice in the courts. More significantly than anything else, most low-income parents in inner cities cannot obtain a decent education for their children in a safe environment. Unlike people with greater economic resources, low-income parents often cannot afford to move to communities with good schools, or to send their children to private schools. As a practical matter, their children are consigned to educational cesspools that reinforce the cycle of poverty and despair.
The Los Angeles Unified School District (LAUSD) and the Chicago Public Schools are the second and third largest school systems in the United States. For low-income youngsters in the worst schools within these districts, the odds of dropping out, winding up on public assistance, or being victimized by (or arrested for) serious crimes are far higher than the odds of graduating and going on to college or a productive livelihood.
The Chicago Public Schools enroll 410,000 students, and have an annual budget of $2.33 billion. More than three-fourths of the children come from families with incomes below the national median. Approximately 52 percent of the students are black and 28 percent are Hispanic. LAUSD enrolls 610,000 students and has an annual budget of approximately $3.9 billion. More than 85 percent of its students are from ethnic minority groups.
Chicago expends $5,548 each year per student, more than $750 per year more than the statewide average. LAUSD spends about $5,000 per pupil. Of these amounts, however, barely more than half ever reaches the classroom. Much of the remainder is consumed by huge central administrative bureaucracies. LAUSD has more than 160 employees on its payroll who are paid more than $90,000 per year. Recently the school district spent a quarter million dollars on a public relations campaign, despite program cutbacks and severely overcrowded conditions in the schools.
The dropout rates in both school districts are twice as high as other districts in their respective states. Of students entering high school, in LAUSD fewer than 60 percent graduate; in Chicago, fewer than 44 percent graduate. Fewer than one in three Chicago public high schools has a graduation rate over 50 percent. Dropouts have few marketable skills and huge unemployment rates. The jails in these cities are disproportionately populated by high school dropouts.
The abysmal quality of education in the worst public schools is shocking. Thirty-eight of Chicago’s 64 public high schools — more than half — report college admission test scores in the bottom one percent of the nation. On standardized tests measuring reading, mathematics, and language arts, the Chicago public schools the plaintiff youngsters attend routinely report scores for every grade level in the 100s on a 500-point scale. Fewer than five percent of the LAUSD schools reported standardized test scores for ninth graders above the 50th percentile nationwide.
The schools these youngsters attend are often crime-ridden, drug-infested, and dangerous. In LAUSD in 1989, there were reports of nearly 11,000 attacks and assaults, 639 attacks with a deadly weapon, 570 sex offenses, 2,877 seizures of weapons, and nearly 2,000 cases of substance abuse. In the first five months of the 1990-91 school year, Chicago police seized 282 guns in the public high schools.
The school systems in the two cities are heavily regulated and politically influenced. Within these impersonal systems, politically powerless low-income parents have little control, influence, or choice over the direction, content, or quality of their children’s education.
In the same neighborhoods in which the public schools are failing so miserably, community private schools provide superior educational opportunities to low-income children in safe and wholesome environments, usually for a portion of the cost of public schools. Catholic and other religiously affiliated schools in both cities provide a good education to hundreds of thousands of low-income youngsters, many of whom are not members of the church. Likewise, many nonsectarian schools, including some with a particular ethnic focus, provide good educational opportunities with heavy parental involvement in economically distressed communities.
Holy Angels School, a Catholic school in one of Chicago’s worst south side neighborhoods, offers education for $500 per year per family. All its more than 1,000 students are black and from low-income families. The school is safe and orderly, with a high level of parental involvement. More than half its students score above the national median on standardized tests in reading, mathematics and language arts at every grade level. Public schools in the same area report fewer than 20 percent of their students scoring above the national median (at one nearby public school, Donaghue, only 4.1% of eighth graders score above the national norm in reading skills). Westside Preparatory School on the west side has drawn international acclaim for its success in teaching supposedly “irremediable” youngsters from poor families with a program that instills a love of learning based on the classics.
In the Hyde Park area of Los Angeles, about 400 students are enrolled in the Marcus Garvey School, which emphasizes African-American heritage. The school provides an advanced academic program with strict discipline and plentiful homework, and has an annual tuition of less than $4,000. Sheenway School in Watts offers excellent academic programs in a multi-cultural setting. Since establishing a high school, every single one of Sheenway’s graduates have gone on to further education.
Unfortunately, many low-income parents lack the financial resources to send their children to these schools. By contrast, in Chicago, 46 percent of the public school teachers send their own children to private schools. There are some good public schools in all big cities, including Los Angeles and Chicago, but not nearly enough for all the children. Most often it is the children who need educational opportunities the most who are left out.
The only immediate and effective solution is to give the parents of the most disadvantaged youngsters greater power over their children’s destinies, starting with school choice. Choice would allow youngsters who are currently consigned to inferior schools to obtain a better education, and would create a competitive incentive for bloated public school bureaucracies to improve their school systems.
Thirty-nine years have passed since Brown v. Board of Education established the constitutional imperative of equal educational opportunities. But for millions of economically disadvantaged youngsters, basic educational opportunities are more out of reach than ever before. It seems we have tried every possible solution: forced busing, massive tax increases and spending equalization, and myriad school reforms. But for children in the worst schools, these reforms have helped little if at all. The reason is that these reforms have left power over basic educational decisions in the hands of government bureaucrats and the education establishment. What is essential now is the transfer of power from bureaucrats to parents.
A little revolution took place in Wisconsin in spring, 1990: the state legislature created the nation’s first true voucher program, allowing up to 1,000 low-income youngsters to use their share of state education funds in private nonsectarian schools. The Milwaukee Parental Choice Program commenced that fall, with several hundred economically disadvantaged youngsters opting out of inadequate public schools and crossing the threshold to an excellent education. Moreover, the creation of competition for low-income youngsters has prompted reform of public schools in Milwaukee. In March 1992, after a ferocious two-year court battle with the teachers’ union, school choice proponents prevailed when the Wisconsin Supreme Court upheld the program against challenges under the state constitution. 2
No other reform offers the potential for immediately expanding educational opportunities for those who need them most. A recent Brookings Institution study found that the defects of large urban school districts are so intractable that meaningful reform within the system is impossible. 3
Choice provides needed competition to bloated public school systems, which are motivated to improve by the potential loss of state funds. Choice is especially vital for low-income youngsters, whose families cannot afford to purchase homes near good schools or to pay for private schools.
School choice proposals abound. Two of the most comprehensive are a California initiative that would provide choice among private and public schools and allow for deregulation of public schools, and a proposed legislative pilot school choice program for Chicago. Public opinion polls show strong support for school choice, particularly from members of minority groups (90 percent of Milwaukee’s blacks support the choice program there). But all private school choice proposals are vigorously opposed by the education establishment and its allies, with massive special interest resources at their disposal. Our strategy is designed to enhance choice efforts by mounting an offensive in the courts.
Educational liberty is deeply embedded in our constitutional heritage. 4
However, in the decades since Brown v. Board of Education in 1954, the courts have focused on educational equality rather than liberty or opportunity as the constitutional touchstone and have imposed sweeping remedies to achieve racial balance or funding equalization. Our proposed remedy, conversely, is designed to obtain educational opportunities for children who are victimized by inadequate schools, by giving parents the power to choose the schools their children will attend.
In Jenkins v. Leininger, 5
the Institute for Justice represents more than 100 low-income parents and children in Chicago. The lead plaintiffs are John and Michelle Jenkins, who have struggled without much success within the labyrinthine Chicago Public Schools bureaucracy to obtain a decent education for their children, ten year-old Noreen and seven year-old John. In Arviso v. Honig, 6
the Institute represents more than 50 low-income parents and students in south central Los Angeles. The lead plaintiff, Susan Arviso, has four of her five children in public schools. Her children have experienced first hand the violence, overcrowding and lethargy L.A. public schools offer its students.
State laws require children to attend school and compel taxpayers to support public schools, and in turn many states, including Illinois and California, ensure a certain minimal quality of education. Article X, section 1 of the Illinois Constitution declares that the “state shall provide for an efficient system of high quality public educational institutions and services.” Article IX, section 1 of the California Constitution provides that “[a] general diffusion of knowledge and intelligence being essential to the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual . . . improvement.” This provision has been expansively interpreted by the California Supreme Court. 7
For low-income youngsters in many large cities, including Chicago and Los Angeles, these guarantees are not remotely fulfilled. Our lawsuits will seek to enforce these guarantees on behalf of more than 150 low-income parents and children in Chicago and south central Los Angeles County.
Moreover, within the construct of the huge inner city public school systems, low-income parents lack the most basic control, influence, or choice over the content, direction, or quality of their children’s education. We will argue that this state of affairs violates freedom of association, freedom of speech, and parental liberty protected by the state constitutions and the United States Constitution.
As the primary remedy for these violations, we seek an injunction transferring control over the students’ share of state education tax dollars from government officials to the parents, who may use the funds at any public or private school that satisfies state compulsory attendance laws.
The idea of a “voucher” remedy in education cases is not new, and support for the idea spans the philosophical spectrum. Stephen Arons has argued that the current public school laws impair fundamental civil rights, and has proposed an opt-out (i.e., damages) remedy. 8
Berkeley law professor Jack Coons has proposed a voucher remedy for desegregation lawsuits. In the area of education for disabled youngsters, state and federal courts have ordered remedies allowing parents to use their public funds in private schools where the public schools have failed to provide a “free and appropriate education” as required by federal law. 9
That is the same type of relief we are seeking in these cases for children in constitutionally deficient schools.
At trial, the principal issue in these cases will be the quality of education in the inner city public schools. We plan to make these cases “show trials,” presenting compelling testimony from parents and educational experts to demonstrate that 1) the public schools to which these low-income youngsters are consigned are educational cesspools, 2) these problems are systemic and cannot be solved without significant changes in the public school system, and 3) the only effective remedy is choice.
Beyond securing choice for the plaintiffs, we hope these cases will bolster significant public school reform efforts, including school choice, throughout the United States. 10
Clint Bolick, the Institute’s vice president and director of litigation, is leading the overall litigation effort. Bolick is a veteran public interest litigator who successfully defended the Milwaukee Parental Choice Program from the trial court through the Wisconsin Supreme Court, representing low-income parents. Bolick formerly headed the Landmark Center for Civil Rights in Washington, and served with the U.S. Department of Justice, Civil Rights Division, and with the U.S. Equal Employment Opportunity Commission. He received his law degree in 1982 from the University of California at Davis.
The Institute’s president and general counsel, William H. (Chip) Mellor III, was formerly president of Pacific Research Institute in San Francisco, and previously served as deputy general counsel at the U.S. Department of Energy, and vice president and senior attorney at Mountain States Legal Foundation. The in-house team also includes attorneys Dirk Roggeveen and Scott Bullock.
Outside counsel assisting the Institute on a pro bono basis include Mark Snyderman and Erin Mack from the Washington office of Gibson, Dunn & Crutcher; Daniel Kubasiak and Paul Castiglione of Joyce and Kubasiak in Chicago; and Manuel Klausner and Mark Kisicki of Kindel & Anderson in Los Angeles.
The Institute for Justice is working closely with community and educational reform activists in Chicago, Los Angeles, and around the nation.
The need for positive change is urgent: we simply cannot afford to sacrifice another generation of inner city youngsters, nor to continue increasing investment in education without results. We believe these school choice test cases have great potential to shake up the education establishment and lead the way toward choice, competition, and accountability in education.