Legal landmines of school choice

Clint Bolick

February 28, 1991|By Clint Bolick

AMERICANS increasingly are turning to reforms that allow parents to choose the schools their children attend as the best solution to the nation's education crisis.

In New York City's East Harlem, for example, granting parents a choice of public schools has boosted that district's student achievement from last to 12th among the city's 24 school districts. Wisconsin last year passed legislation allowing 1,000 low-income Milwaukee youngsters to use state education funds for tuition in private schools. And Epsom, N.H., adopted the nation's first property tax cut to encourage parents to pursue private school options for their kids.

However, while support for choice programs is growing, so are the legal hurdles to such programs. The National Education Association and American Federation of Teachers, for example, both recently vowed to challenge parental choice plans both in Congress and the courts.

One of the major legal obstacles is federal anti-discrimination laws. Critics of educational choice charge that it promotes segregation. On the contrary, education choice programs help low-income minorities opt out of inferior inner-city schools. This is precisely what is occurring in New York City and Milwaukee.

The courts, of course, also present supporters of school choice with opportunities to advance their cause. In Kansas City, Mo., a federal court imposed costly coercive measures to achieve racial balance among students. But a group of students filed suit, TC demanding the right to use tax dollars to attend private schools. If the case succeeds, it would provide the first voucher remedy in a school desegregation context -- helping students achieve through educational choice what decades of forced busing have not achieved.

The other major legal barrier to parental choice is the Constitution's "establishment" clause, which restricts government involvement in religion. Critics wave this flag frequently when private schools -- many of which are religiously affiliated -- are included in choice programs. The U.S. Supreme Court's rulings on the clause have been contradictory, creating confusion over what kind of aid would involve the "establishment of religion."

The court has established three tests for school choice legislation: It must serve a secular purpose, its "primary effect" must neither advance nor inhibit religion and it must not foster "excessive entanglement" between government and religion.

The first test is easily satisfied by the government's interest in a well-educated citizenry. But the other yardsticks often collide in what Supreme Court Chief Justice William Rehnquist calls a "Catch-22" of the court's own making. "Aid must be supervised to ensure no entanglement, but the supervision itself is held to be an entanglement," Rehnquist says.

It is almost certain that any ambitious education choice plan that includes private schools will be challenged vigorously in the courts by the education establishment. A successful choice program, then, should adhere to the following principles:

Place the decision of where the funds are used in the hands of parents and students. Create no financial incentive to attend religious schools. Limit government regulation to ensuring that secular educational goals are accomplished. And require schools receiving public funds to observe non-discrimination policies.

Clint Bolick, director of the Landmark Legal Foundation's Center for Civil Rights, is representing inner-city Milwaukee parents in their court battle to save Wisconsin's experimental choice program.

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