School Choice Victory!

August 1, 2002

By Clint Bolick

It was the Super Bowl for school choice—and the kids won.

Culminating a litigation effort that lasted 12 full years—and every day of the existence of the Institute for Justice—the U.S. Supreme Court on June 27 vindicated the right of parents to choose their children’s schools. That was the day that the constitutional cloud that has hovered over school choice was replaced by sunshine.

At the foot of the Supreme Court, Clint Bolick fields questions from reporters after the 5-4 victory in Zelman v. Simmons-Harris.

The immediate impact was to secure precious educational opportunities for 4,000 economically disadvantaged children attending private schools in Cleveland. Sharing their victory were school choice families around the nation and many others who hope to secure such opportunities in the future.

Defeated were the powerful array of special interest groups, led by the ill-named National Education Association and People for the American Way, who lost one of their most potent weapons in their ends-justifies-the-means campaign to stifle school choice.

Although we were optimistic since the February oral argument, we expected the margin would be close, and it was: 5-4. But also we knew that even if we won, the majority might not be able to agree on a single constitutional standard, thereby leaving lingering doubt. Happily, the majority was united behind a strong and emphatic opinion that leaves no doubt that a broad range of school choice programs are constitutional.

Our main emphasis throughout the litigation was on showing the Court that the issue was education, not religion, and it was clear that the Court majority agreed. As it has for two decades, the Court set forth two principles to determine whether aid that ends up in religious institutions is valid: first, the choice of where to spend public funds must be made by parents or students, not the state (“true private choice”); and second, there must be a broad array of choices that do not favor or disfavor religion (“neutrality”).

The majority opinion by Chief Justice William Rehnquist found that the Cleveland program easily meets those standards. The program “provides benefits to a wide spectrum of individuals, defined only by financial need and residence,” the Court declared. “It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”

Justice Clarence Thomas wrote a passionate concurring opinion, declaring that despite the constitutional command of equal opportunity, “[t]oday many of our inner-city public schools deny emancipation to urban minority students.” School choice programs, he said, “address the root of the problem.” Any attempt to convert the Constitution “from a guarantee of opportunity to an obstacle against education reform,” he concluded, “distorts our constitutional values and disserves those in greatest need.”

The only discordant note was the vitriol of the dissenting justices. Their opinion was summed up by school choice nemesis Barry Lynn of Americans United for Separation of Church and State, who charged that the Court’s decision took a “wrecking ball” to First Amendment religious establishment prohibition.

The only thing the decision took a wrecking ball to was the public school monopoly, and not a moment too soon. Policymakers now are permitted, under the federal Constitution, to look outside the public schools to fulfill the goals of public education. And parents rather than bureaucrats are now empowered to control essential educational decisions.

But, to paraphrase Winston Churchill, the Supreme Court triumph is only the end of the beginning. It establishes only the baseline for educational freedom and parental autonomy. Much work remains, and the defenders of the status quo are not about to give up.

Yet the victory allows IJ to shift most of its efforts from defense to offense. Already we are seeking voucher remedies for educational deprivations in a path-breaking Arizona lawsuit. We will turn our attention to challenging, as a violation of the federal guarantee of neutrality, state constitutional provisions that discriminate against religious options. And we will continue to support our allies as they work to expand school choice through vouchers, tax credits or other means.

IJ Vice President for Communications John Kramer, left, and President Chip Mellor celebrate the school choice victory on the steps of the Supreme Court minutes after the release of the U.S. Supreme Court decision.

But first, we will take a moment to savor sweet victory, a vindication of IJ’s ecumenical, humane brand of freedom litigation. From IJ’s first day, we promised to defend every school choice program until the constitutional cloud was removed. We thank and congratulate our friends, allies and supporters, without whom this never could have happened.

When the Cleveland litigation first was filed six years ago, the American Federation of Teachers characterized the school choice parents as “inconsequential conduits” for the transmission of aid to religion. Those were fighting words.

Inconsequential? Only in the eyes of the public school establishment. And, emphatically, inconsequential no longer. The parents are in charge of their children’s education now.

It’s time to celebrate—and to renew our commitment to the hard work that lies ahead.

Clint Bolick is IJ’s vice president and national director of state chapters.

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