Freedom of Choice: From Brown To School Vouchers

Published June 1, 2004

The U.S. Supreme Court’s Brown v. Board of Education ruling created a divide in education policy that centers on the phrase “freedom of choice.” The Court’s decision overturned the “separate but equal” doctrine and freed the Court from the “burden of its history” of support for segregation. Nonetheless, in resisting Brown, many Southern policy makers identified an important private issue that was not explicitly about race: parental choice.

A parent has a constitutional right to decide whether a public or private school is best for her or his child. However, many Southern states abused the rhetoric of “freedom” and “choice” to circumvent integration efforts by using sham “school choice” programs. Those programs involved closing the public schools and providing tuition grants to finance the education of white pupils at all-white private academies.

This “fear-based choice” might have succeeded had it not been for several federal court decisions rendered between 1959 and 1969. In those cases, judges concluded fear-based choice was inconsistent with the Constitution. They also said tuition grants could not serve as a means to circumvent Brown or to promote racial discrimination in public or private education. Private school freedom of choice, in the form of direct aid, remained dormant for many years.

That changed in the 1990s as private school choice came into vogue again. But this time it came without racial separatism. The 1990s movement made parental decision-making and academic uplift its two most essential components.

Unlike programs of the fear-based choice era, freedom-based choice sought to remedy the disparities between rich and poor students by providing vouchers to children from low-income families of all races so they could attend better schools. The Supreme Court in 2002 upheld this type of “freedom of choice” in Zelman v. Simmons-Harris.

True, the private school freedom-of-choice movements of the 1950s and 1990s have some similarities. But those similarities pale compared with the ideological differences between them. Still, freedom of choice is debated because anti-voucher groups often lump the movements together to support their thesis that modern school choice is nothing more than a 1950s tuition grant clothed in a corporate suit rather than a white sheet. To these opponents, the only private choice beneficiaries are conservative white (male) elites, and black schoolchildren and their parents are choice victims once again.

Critics treat a 1950s tuition grant and a modern voucher as synonymous. They often misuse the “segregation academy” cliché to generate fear and racial mistrust. For example, Rev. Jesse Jackson has claimed, “The same ideology that supported Plessy, opposed Brown, and inspired the formation of all-White academies, is now behind the school voucher issue.”

Another example was in 1997, when ACLU legislative representative Terri Schroeder recalled the history of fear-based choice to predict that voucher programs, if widely implemented, would produce segregation-like effects nationwide: “These [segregated] academies [of the 1950s], which discriminated in admission based on race, allowed communities to continue de facto segregation. … The same could easily reoccur around the county if modern voucher plans are adopted.”

A third example comes from education activist Jonathan Kozol, who considers vouchers dangerous and claims voucher money could “be used for a David Duke School or a right-wing militia school or a Louis Farrakhan school.” However, anti-discrimination provisions in voucher laws prohibit spending public money at such schools.

In fact, unlike its counterpart during fear-based choice, America’s black community is clearly benefitting from freedom-based choice. It is more productive to look at private choice similarities and differences across time. If we do, our nation can approach this controversial policy issue in a way that will support, rather than corrupt, honest dialogue about how best to use vouchers to deliver educational services to Brown‘s grandchildren in big city America.

Gerard Robinson served as legislative liaison for the D.C. Public Schools District (1999-2000). This article is excerpted from his chapter in the new book, Educational Freedom in Urban America, Brown v. Board after Half a Century (Cato Institute, 2004).