Opponents Launch All-out Assault on School Choice Reform

Published September 1, 1999

While the passage of significant new school choice legislation this year in Florida and Illinois has provided encouragement to supporters of parental choice in education, this success also has provoked their opponents to launch an all-out effort to stamp out choice-based school reform.

Newly launched attacks on choice programs in Florida, Illinois, and Ohio are simply the latest in an ongoing assault on school vouchers, tuition tax credits, education savings accounts, donations for private scholarships, charter schools, contracting out, merit pay for teachers, and alternative teacher certification–almost every variety of choice-based or deregulation-driven reform initiative that has been proposed or implemented at the local, state, or federal level.

“The education establishment has a powerful vested interest in the current system regardless of the human cost, so litigation against school choice has become as inevitable as death and taxes,” Clint Bolick wrote recently in an online debate at IntellectualCapital.com. Bolick is litigation director for the Institute for Justice, which is leading the nationwide legal fight in support of school choice.

“Unfortunately, groups like the American Civil Liberties Union (ACLU) have fallen into lockstep with the teachers’ union and left-wing groups like People for the American Way (PFAW), whose interests are not civil liberties but preserving the status quo,” he added.

The ACLU and PFAW are part of an alliance of anti-school choice organizations that also includes the two teacher unions–the National Education Association and the American Federation of Teachers–and their state affiliates, the National Association for the Advancement of Colored Persons, and the American Jewish Congress.

The most prominent support for the anti-choice forces comes from the White House, where the First Family–although rejecting public schools for their own daughter’s education–routinely uses its “bully pulpit” to disparage school vouchers, tuition tax credits, and K-12 education savings accounts.

Local elected officials and some public school organizations have also joined the attack on school choice. The National School Boards Association, representing 95,000 local school board members nationwide, has filed a “friend of the court” brief urging the U.S. Supreme Court to strike down an Arizona ruling that allows taxpayers to receive a dollar-for-dollar credit of up to $500 for donations to charitable organizations that award scholarship to K-12 private schools. In Florida, the state PTA has joined a legal challenge against vouchers designed to help children in failing schools.

The attacks on school choice have dramatically increased the caseload of the Institute for Justice, which at one point earlier this year was involved in only three school choice cases–Arizona, Maine, and Vermont–after the Cleveland voucher program was invalidated on technical grounds. But by the end of July, Bolick and his colleagues found themselves facing the strong possibility that they would have nine cases by the end of the summer.

Charter schools, another reform involving parental choice, also came under attack in July. In Philadelphia, Barry Lynn, of Americans United for the Separation of Church and State, made the startling announcement that his organization was now officially opposing charter schools as well as vouchers. In St. Louis, the city school board filed suit to have the new African_American Rite of Passage Charter School declared unconstitutional, a move that could close 16 other new charter schools in Kansas City.

Although efforts to crush school choice initiatives have been largely successful at the federal level, the picture is mixed at the state level. The Pennsylvania State Education Association was successful in beating back voucher legislation recently, but reform candidates favoring school choice won election in Milwaukee and Los Angeles, despite strong opposition from the teacher unions and PFAW.

Florida Vouchers Attacked

On June 22, just one day after Governor Jeb Bush signed the bill authorizing Florida’s new opportunity scholarships, voucher opponents led by the state teacher unions filed a lawsuit to challenge the law, charging that the program violated state education policy and constitutional guarantees of church_state separation. The American Federation of Teachers filed a second suit in July.

The Florida measure is the nation’s first statewide voucher program, empowering parents with the financial means to take their children out of the state’s worst public schools and place them into private or religious schools. Although Florida ACLU director Howard Simon had recently promised that the ACLU would challenge the program only on religious establishment grounds, the court challenge in fact alleges that the program violates the state constitution’s guarantee of a high_quality public education.

“The plaintiffs have it exactly backwards,” responded Bolick, who is representing families eligible for the scholarships. “This program puts meaning for the first time behind the constitutional guarantee of a high_quality education.” If the ACLU is concerned about harming public schools, he said, “the real culprit is in the mirror.”

Bush’s general counsel, Donna Arduin, agreed, noting that none of the challengers has a child in a failing school. “None . . . must suffer the consequences directly when their child leaves school unprepared to meet the demand of life in contemporary society,” she told Orlando Sentinel reporter Linda Kleindienst.

Cleveland Vouchers Attacked–Again

Although the Ohio Supreme Court ruled without dissent on May 27 that the Cleveland voucher program did not violate constitutional provisions for the separation of church and state, school choice opponents wasted little time in filing a lawsuit in federal court on July 20 to try to halt a newly reauthorized voucher program approved by state legislators in June. The AFT filed a second federal suit a few days later.

The first suit alleges that Cleveland’s tuition voucher program__which provides up to $2,500 in publicly funded scholarships for low_income students to attend private schools, including religious schools__violates the U.S. Constitution’s provision for the separation of church and state. Noting that the suit was filed by the same groups__teacher unions, the ACLU, and PFAW__that filed a similar state_level lawsuit in 1995, the Institute for Justice’s Matthew Berry characterized the groups as “sore losers.”

In its May ruling, the Ohio Supreme Court had declared that “The primary beneficiaries of the School Voucher Program are children, not sectarian schools” because the voucher program’s tax dollars do not go directly from the state government to religious schools. Instead, “aid provided by the state is received by the parents and students who make independent decisions to participate in the School Voucher Program and independent decisions as to which registered nonpublic school to attend.”

“In sum, there is no credible evidence in the record that the primary effect of the School Voucher Program is to advance religion,” the Court concluded, ruling that the program satisfied the three prongs of the Lemon test and hence did not violate the First Amendment’s Establishment Clause.

Illinois Tax Credits Under Fire

It took barely six weeks for school choice opponents to file a lawsuit challenging Illinois’s new education tax credit law, which Governor George Ryan signed into law on June 3. A second lawsuit is expected.

After years of effort with little success, the governor’s signature heralded a major victory for supporters of parental choice in education in Illinois. Starting next year, Illinois families will be eligible to take a credit of up to $500 against their state tax bill for 25 percent of the expenses they incur in educating their children at public, private, and religious schools. Eligible expenses include tuition, book fees, and lab fees, but the first $250 of these expenses is excluded.

“This kind of reform fundamentally shifts control over a child’s education away from teachers’ unions and puts it back where it belongs–in the hands of parents,” said Berry.

Mo. Charter Schools Under Attack

Charter schools are public schools of choice that are privately managed and given a great deal more operational freedom than traditional public schools. The fact that they are public schools does not shield them from attack by opponents of school choice, as recent events in St. Louis have shown. There, an attack on one school has placed all charter schools in Missouri in jeopardy.

Since the passage of Missouri’s charter school law last year, some 16 charter schools were approved in Kansas City, but only one in St. Louis: The African_American Rite of Passage Charter School (AARP), whose 424 seats filled up rapidly. Then, on July 9, the St. Louis Post_Dispatch reported that the school’s sponsor/CEO Lamar Basil Beyah had gone to prison twice in the 1980s, once for mail fraud and once for drug problems. On the same day, the St. Louis School Board filed suit to block the charter school in an eight_count indictment.

“This suit illustrates how well_prepared opponents of school choice are,” noted Joy Kiviat, research director for Citizens for Educational Choice, a national organization based in St. Louis. “The provisions of this suit were most likely in the works even before the charter was granted to AARP, and the filing of the suit was timed to coincide with the revelation of AARP’s founder’s criminal background.”

Although the lawsuit targets only the AARP school, a ruling that the enabling law is unconstitutional would also halt operation of the 16 charter schools in Kansas City, which already have enrolled almost a quarter of the city’s students.

George A. Clowes is managing editor of School Reform News.