The Constitutional Case for School Vouchers

GEORGE F. WILL

March 08, 1993|By GEORGE F. WILL

Washington. -- This month in Chicago an emancipation may begin. A judge will decide whether to hear a suit brought by some inner-city parents and children, charging that the state is failing to fulfill its education duty.

The suit seeks an empowering remedy -- vouchers, with a value of the pro-rata share of state funds allotted to the children's education. The vouchers would be redeemable at public or private schools.

Welcome to judicial activism of the sort advocated by the Institute for Justice, a Washington group of young libertarian lawyers. Their civil-rights suit for their Chicago clients charges that the children are being denied a benefit guaranteed by Illinois' constitution, and that the parents are being denied a liberty (''essential influence, control or choice over their children's education'') implicitly guaranteed by the U.S. Constitution.

Illinois' constitution asserts: ''The state shall provide for an efficient system of high-quality public educational institutions and services.'' No one can seriously say that is being done for Chicago's inner-city students, 80 percent of whom are black or Hispanic. So, is the constitutional language justiciable or meaningless?

The average graduation rate in Chicago's public schools is 43.7 percent, 43 percentage points below the statewide average. Less than one of every three Chicago public high schools has a graduation rate above 50 percent. About 70 percent of public-school students score below the national norm in standardized tests of basic skills, and substantially below statewide averages. Thirty-eight of the 64 high schools have ACT college-admission test scores in the bottom one -- yes, one -- percent of the nation.

Chicago's bureaucratized system expends $5,548 per pupil, about $750 more than the statewide average, but only 56 percent of the total budget goes for classroom instruction. The parents' brief notes that private schools provide better cognitive results at less per-pupil expense ''in the same neighborhoods as the city's worst public schools and draw from the same student population,'' and have ''extensive parental involvement.''

The suit's ''parental liberty'' claim goes like this. Children are subject to compulsory school-attendance laws. Parents are subject to compulsory taxation for public schools, to which children are assigned primarily by residence. The parents in this suit, like most Chicago school parents, lack the resources to move in search of better public schools. So, given the stark inadequacies of the public schools, it is germane that the U.S. Supreme Court has invalidated state action that ''unreasonably interferes with the liberty of parents . . . to direct the upbringing and education of children.''

The court has also held that ''providing public schools ranks at the very apex of the function of the state.'' But what recourse have poor inner-city parents when the provision constitutes an educational caste system that stunts the life chances of their children? In the words of the court's 1954 school-desegregation decision, when a state undertakes to provide public education, it ''is a right which must be available to all on equal terms.'' A voucher remedy would be egalitarian.

The parents' brief stresses that they ''do not seek to second-guess any legislative judgments, to displace any statutes, or to disturb bureaucratic discretion reasonably exercised.'' Rather, ''the focus of this litigation is not how the defendants should fulfill their duties . . . but instead whether they have fulfilled'' them.

Does the Illinois constitution's language constitute an educational ''guarantee''? That language says ''the state shall provide. . . .'' The Illinois Supreme Court has held that ''in construing statutory provisions . . . the word 'shall' is regarded as indicative of a mandatory legislative intent.'' Why would that not be true of constitutional provisions as well?

Both Illinois and federal courts have exercised judicial review regarding, for example, whether public schools have provided, as required by law, ''appropriate'' education for disabled pupils. Therefore, the brief argues, courts can decide whether Illinois clearly is not providing ''an efficient system of high-quality'' education. And the voucher response is within the court's remedial powers because it is analogous to the practice of ordering public payment of tuition for disabled pupils at private schools when public schools are unable to fulfill their obligations to such pupils.

The Institute for Justice has a similar suit on behalf of some residents of South-Central Los Angeles. In that city's unified school district fewer than 5 percent of schools report scores for ninth-graders above the 50th percentile nationwide in standardized tests. At two of the high schools attended by plaintiffs, scores rank in the bottom 1 or 2 percent in statewide math and reading tests. The 1990 dropout rate in Los Angeles public high schools (40.9 percent) was twice the statewide rate.

The graduation rate for inner-city private schools nationwide is about 97 percent.

As in Chicago, the issue is: Can a state entirely evade judicial review of whether it is performing constitutional duties? A particularly pertinent question, given that about half the Chicago public-school teachers with school-age children send them to private schools.

George F. Will is a syndicated columnist.

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