Whatever it Takes: Clint Bolick

Published January 1, 2002

“You can never tell which case is going to be the precedent-setting case. And so our goal from the very beginning has been to do whatever it takes to get programs up and running and to keep them running.”

When Clint Bolick was ready to present arguments in support of the Milwaukee voucher program to the Wisconsin Supreme Court in 1991, he had expected to see many of the seats in the solemn courtroom occupied by children who were participating in the program. But they were not there.

Their bus had broken down en route. By the time they arrived, all the seats had been taken, and the children could not be admitted.

But when Bolick stood up to make his case, he saw the children though the courtroom’s glass doors, their faces pressed up against the glass. That image of the children “on the outside, looking in,” was, he said later, an apt illustration of where poor children stood in relation to good schools.

In 1998, Bolick helped win the landmark ruling in Jackson v. Benson when the Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program.

As vice president and litigation director of the Washington, DC-based Institute for Justice, Bolick leads a nationwide effort to defend school choice programs and also to challenge regulatory barriers to entrepreneurship.

He and fellow attorney William H. “Chip” Mellor formed the public interest law firm in 1991 to challenge the reach of the regulatory welfare state and to engage in constitutional litigation for the protection of individual liberty. Today, the Institute is the nation’s leading advocacy group on behalf of parental rights in education.

In addition to his involvement in defending the Milwaukee voucher program, Bolick has successfully defended school choice programs before the state supreme courts of Arizona and Ohio. He is currently defending choice programs in Florida, Cleveland, and Arizona from legal challenge.

Bolick received the Educational Freedom Award from Citizens for Educational Freedom in October 1999. The previous year, he published Transformation: The Promise and Politics of Empowerment, issued in August 1998 by the Institute for Contemporary Studies.

Bolick received his undergraduate degree from Drew University in 1979, planning to be a history teacher and gaining certification to teach in New Jersey. However, an interest in constitutional law took him to the University of California at Davis, where he received his law degree in 1982. He subsequently worked at Mountain State’s Legal Foundation in Denver, with Clarence Thomas at EEOC, and at the Justice Department in the Civil Rights Division.

After a recent move to Phoenix, Arizona to open the Institute for Justice’s first state office, Bolick spoke with School Reform News Managing Editor George Clowes.

Clowes: You’ve been involved in important court battles all across the country to defend school choice. How did it all start?

Bolick: That was in 1990, after I had opened the Washington office of Landmark Legal Foundation. I was ecstatic to read a small article in The Washington Times announcing that Milwaukee had the nation’s first school choice program for low-income youngsters.

I immediately tracked down the author of the legislation, Representative Polly Williams, and it took me nearly a week to reach her. When I finally did, I asked her, “Are you prepared for the lawsuit?” and she uttered the immortal words, “What lawsuit?”

Within weeks, we were in court, and we had to fight a two-front battle. The first was defending the program on behalf of parents and children, and the second was attacking a blizzard of regulations that had been imposed by the Superintendent of Public Instruction, Burt Grover. We had to win both of those battles over the course of the summer of 1990 in order for the program to open in the fall. We were successful, and we haven’t looked back.

Initially, it was a tiny program limited to a thousand children and non-sectarian schools. Yet, even then, the teachers’ union recognized that it had to fight every single school choice battle as if its existence depended upon it. No matter how small the program, it is a central assault on the monopoly of government schooling, and the teachers’ union regards every school choice program in that way.

That’s why, when Chip Mellor and I opened the Institute for Justice in 1991, we vowed to defend every school choice program, in effect taking the opposite perspective from the teachers’ union.

We also felt that we could not leave it up to state attorneys general to passionately and effectively defend school choice programs. You can never tell which case is going to be the precedent-setting case. And so our goal from the very beginning has been to do whatever it takes to get programs up and running and to keep them running.

Clowes: Which federal constitutional issues does school choice raise, and which ones are involved in the Cleveland voucher case?

Bolick: The only issue in the Cleveland case is whether a school choice program that includes religious schools constitutes an establishment of religion. It’s an establishment clause issue. The question presented to the U.S. Supreme Court is whether the fact that a large majority of children in a school choice program have enrolled in religious schools should render the program unconstitutional.

Our job before the court is to demonstrate that the primary effect of the program is not to advance religion but to expand educational opportunities.

We could see that the battle lines were drawn in exactly that fashion from the very first day of newspaper coverage.

One of the things that we will point out is that suburban public schools were invited to participate in the Cleveland choice program. Unlike private schools, which just receive the $2,150 scholarship, the suburban schools would receive the scholarship money plus the base amount of per-pupil aid provided by the state.

Out of two dozen suburban public school districts surrounding Cleveland, a whopping zero answered the call to participate. It was mainly Catholic schools that participated.

What the lower court decision amounts to is this: Because the only schools that were willing to throw an educational life preserver to Cleveland school children were mainly Catholic, then no schools will be permitted to throw a life preserver.

I’m hopeful that the court will recognize that is a tortured reading of the establishment clause. I’m optimistic that we will get a very clear road map for future school choice programs no matter what happens in this case.

Another reason that a high percentage of the voucher students in Cleveland are enrolled in religious schools is because the non-sectarian private schools there can become charter schools and then collect twice as much per-pupil aid from the state as they would if they were voucher schools. In fact, a number of private academies have transformed themselves from scholarship-redeeming private schools into charter schools.

Ohio is ground zero for the fight over charter schools, and we in the school choice movement really need to support them.

Clowes: What about that other aspect of religious freedom in the First Amendment, the “free exercise” clause?

Bolick: There are actually three other issues on the horizon. The free exercise issue is, in fact, present in the Cleveland program in an indirect way.

The free exercise guarantee is the flip side of the prohibition against the establishment of religion. The fact that there is a guarantee of the free exercise of religion informs any constitutional decision regarding the establishment clause. It also impels a reading of the First Amendment that obligates government to act with neutrality towards religion–neither to prefer religion, nor to discriminate against it.

That neutrality is the middle ground towards which the U.S. Supreme Court has been steering in recent years. That makes us very hopeful about the outcome because the Cleveland program does not provide any preferential treatment to religious schools. But to exclude them from the range of choice could in fact hinder the free exercise of religion.

Now, once this battle is over and–hopefully–successfully concluded, there will be three federal issues remaining.

One is to confront state constitutions that have erected obstacles to school choice. There, the free exercise clause is our strongest weapon. We will argue that state constitutions that prohibit religious schools from school choice programs in fact discriminate against religion. That will be a major wave of litigation that will have to be fought in a significant number of states.

Fortunately, we have won that battle already in Ohio, Wisconsin, and Arizona, where we had to get through the state supreme courts before we could even reach the U.S. Supreme Court. We are fighting that battle in earnest right now in Florida, and we will have to go state-by-state until that battle is won.

The other two federal issues that have not yet raised their heads but inevitably will are desegregation and the Individuals with Disabilities Education Act.

If the McKay Scholarship Program is challenged, then Florida may be the first place where the IDEA issue is raised. In the meantime, what people in Florida and elsewhere are finding is that school choice actually does expand opportunities for disabled youngsters. It does not contract them.

With respect to the desegregation issues, the NAACP and other groups contend that school choice diminishes educational opportunities for minorities. In the two dozen or so states that still have desegregation decrees, they would argue that it hampers school desegregation efforts.

We’re actually fighting that battle right now in the charter school context in East Baton Rouge, Louisiana, where a charter school was halted by the Justice Department in part because it was going to enroll too many black youngsters, which would upset the racial balance in the school district. It’s a perverse notion that the concept of desegregation can be used to thwart high-quality educational opportunities for minority children.

Clowes: How should a school choice program be structured so that it meets constitutional muster?

Bolick: There really are only three key elements. * First of all, the program should encompass as many choices as possible–including public school choices–to the maximum feasible extent. * Second, there should be no provision in the program that makes it more advantageous to choose a private school than a public school. * Finally, the funds should be directed to private schools only through the independent choices of the parents. If you have those three elements, in our view, you have a constitutional school choice program. Beyond that, it is essential that the design of the program be tailored to local realities. Local realities define the realm of the possible and taking them into consideration could make the difference between enacting a school choice program or not enacting one.

Clowes: What is the most shameless courtroom argument you’ve heard used against school choice?

Bolick: One that has made my blood boil more than any other came early in the Cleveland case when the Ohio Federation of Teachers argued that parents in school choice programs were “inconsequential conduits” for the transmission of aid from the state to religious schools, and that the idea of parental choice was a fig leaf for a “money-laundering scheme.” They argued that the program was a direct subsidy of religious schools and that the parents were used simply as pawns in this process.

I got up and said that the parents were not inconsequential conduits and in fact were consequential in the process for the very first time ever. In fact, I may pull that whole argument out of mothballs in the U.S. Supreme Court because it is so central to what all of this is about. But that concept inflamed me more than any other.

Clowes: Some school choice advocates are promoting tax credits over vouchers on the grounds that they’re less likely to be attacked. Since you’ve defended vouchers, tuition tax credits, and scholarship tax credits in court, do you see any difference in the levels of opposition to these different proposals?

Bolick: No. The education establishment is dead set against any type of school choice.

I think that they find vouchers more threatening because they represent a redefinition of public education and result in an immediate and tangible shift of funding from public schools to private schools. But it’s only a marginal difference, and we have seen tenacious opposition to tax credits as well.

It’s also premature for us to be picking and choosing among school choice programs. Although the school choice movement has progressed dramatically over the last 10 years and has matured into an amazingly effective movement, our approach must be ecumenical. If we start dissolving into battles amongst ourselves, then we will be aiding and abetting the education establishment and the status quo.

When someone asks, “Do you support tax credits or vouchers?” the only correct answer is, “Yes.” Some day we will have the luxury of debating which school choice program is superior, but not yet.

Clowes: My last question has to do with the rationale for school choice. Should school failure be the reason for providing school choice, and superior academic results be the reason for keeping it?

Bolick: Ultimately, I think that school choice should be the right of every school child in America. I am much more ambivalent about how we get there.

As a result, I have been very supportive of any type of program that would introduce the concept of school choice. But in the design aspects of school choice programs, we have to be very careful not to set the programs up for failure.

To give an example, most of the students who enter school choice programs are in a downward trajectory. Simply arresting that trajectory is an achievement in itself. We have to be careful not to demand rising test scores for school choice, because it may take a couple of years to get to that point.

Beyond that, I think that the broader the program, the better. If we have to start with failing schools as a means to deliver school choice and to enforce the states’ guarantee of high-quality educational opportunities, I’m all in favor of it. I think it’s worked very well in Florida in terms of prodding public schools to improve their product, which is part of the overall goal.

The concluding point along those lines is that choice begets choice. Once we introduce the concept of school choice, it will only grow. Our objective has to be to get the seed planted. Whatever that seed looks like in the beginning, it’s going to grow into a beautiful flower over time.

We’re at a tremendous point in the movement’s history in the U.S. Supreme Court, but it’s critical for people to understand that we could not be there, and we could not be in as good a position as we are, if it were not for a very broad, passionate, dedicated, and ecumenical movement. This is an effort that goes far beyond the handful of lawyers that is involved.