Opponents and proponents of school choice debated their differing positions at the December 13 school choice conference in New York City, cosponsored by Mayor Rudolph Giuliani and the Manhattan Institute for Policy Research. The exchange took place during a panel discussion on the constitutionality of vouchers for religious schools.
Con: NEA and PFAW
Bob Chanin, legal counsel for the National Education Association, argued that the only schools generally available under choice programs are religious schools, because they are the only schools that will accept vouchers as full payment for tuition. So, he argued, vouchers are simply giving government money to religious schools, and not providing real choice.
The second choice opponent on the panel, Elliot Mincberg of PFAW, echoed Chanin’s argument that true choice was not available to parents in Cleveland because the value of the voucher was too low. Nevertheless, Mincberg opposed raising the amount of voucher.
Chanin admitted the NEA had lost key cases in state supreme courts in Wisconsin, Arizona, and Illinois, but noted they had won key decisions in federal courts. The question remaining to be answered is what the Supreme Court would do with one of the state choice programs that includes religious schools.
While Chanin noted that an individual could use government social services aid for secular counseling but not for religious counseling, he did not mention that it is permissible to receive the secular counseling from a member of the clergy.
According to Chanin, the NEA’s strategy is to use any arguments and any weapons it can to stop school choice, because, in the organization’s view, choice represents an “unsound approach” to solving the problem of poor educational quality. The NEA and other anti-choice groups are relying on the U.S. Supreme Court’s 1973 Nyquist decision to disallow voucher programs.
Pro: IJ and Harvard Law School
Clint Bolick, litigation director for the Institute for Justice, pointed out that Nyquist would not have to be overruled, since current programs are structured differently from the aid considered in that case. In today’s voucher programs, aid flows not to schools but to parents, and depends solely on parental choices. Bolick also argued that the Equal Protection Clause of the 14th Amendment was relevant, as per Brown v. Board of Education.
“Is the primary effect of school choice related to religion or education?” Bolick asked. “Clearly, it is education.”
Bolick discussed anomalies in the recent Sixth Circuit Appeals Court decision against choice in Cleveland:
- the low amount of the scholarships, which effectively eliminated participation by secular private schools;
- the singular prohibition against religious schools becoming charter schools;
- the failure of suburban schools to participate in the program–again, probably because of the low scholarship amount.
Bolick pointed out that only one Cleveland child in 14 completes his or her education on time, while a larger proportion than this are likely to become victims of crime in the city’s public schools. He accused the NEA and People for the American Way (PFAW) of hypocrisy in pushing the court to stop 4,000 low-income children from entering their voucher school just one day before school opened.
“The issue is power,” Bolick said. “With choice, parents have it, and the NEA wants it back.”
Charles Fried of Harvard Law School argued that so long as it is truly parents that are choosing, and not the government, then school choice is clearly constitutional. In his view, the key issue involved is “the principle of liberty.”