Victory for Vouchers

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THE COMMON GOOD

VOUCHERS: A Victory for Parents, the Poor and for Political Participation

By: Keith A Fournier © Third Millennium, LLC

CATHOLIC CATECHISM, PARAGRAPH 2229:

"As those first responsible for the education of their children, parents have the right to choose a school for them which corresponds to their own convictions. This right is fundamental. As far as possible parents have the duty of choosing schools that will best help them in their task as Christian educators. [38] Public authorities have the duty of guaranteeing this parental right and of ensuring the concrete conditions for its exercise"

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Like millions of Americans I have followed with great interest the ongoing movement toward what is referred to as "school choice" and "vouchers" in our educational system. As a public interest lawyer, I also worked on this issue for years.

As a long time public policy activist, I have been deeply concerned over the issue of education and have had a role in helping to frame the current debate. One of the joys of my eclectic legal career was the privilege of serving as an advisor to the Presidential campaign of Steve Forbes.

Mr. Forbes was (and still is) an ardent supporter of parental choice in education. I helped to frame the language for this and other positions for the candidate during his campaign.

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I would always encourage him to speak of such "vouchers" as "parental vouchers" and to speak to the broader issue as "parental choice." The reason was more than semantics.

The words strike at the heart of the real issues raised by this effort. Among them, whose children are they? Their parents or in the words of another Supreme Court case "mere creatures of the State" Who should be making this choice? Whose money is the money in the public treasury? What does "public" actually mean? There are many others.

One of the problems with the use of the phrase "school choice" is that it is not "schools" making the choice but parents. Through the return of tax money directly to parents, in the form of vouchers, they are empowered to extend their teaching duty outside of the first school, the family, and to choose from an array of options; from among a full array of options including public, private, charter or religious or parochial schools.

Through a well designed "voucher" or "credit" system, poor parents can make that choice, no matter what their financial means. They are the ones who understand their children's needs the best.

As a father, I know how vitally important this issue truly is. I have raised (or am still in the process of raising) five children. Each of them has been the recipient of a fine education at both private (parochial) schools and public ones. They have also been the victim of poor education. Fortunately, I have had a choice.

I am also the product of both types of schools. I have experienced poor teaching and excellent teaching, poor leadership and effective leadership at both.

There is nothing as frustrating to any parent than to have to keep their children in a poor school. The very experience which should extend their parenting outside of the first schoolhouse of the home becomes instead often an adversary to their own parental mission. Leaving their children trapped in a failed system and a culture that undermines their parental role and deepest longings for their children is unjust and does not promote the common good.

THE COURT CASE

A recent United States Supreme Court decision, being hailed by many as a landmark "Church-State" decision, entitled ZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, et al. v. SIMMONS-HARRIS et al., has changed the entire landscape of American education for the better.

In that opinion the Supreme Court of the United States ruled, by a five to four majority that an Ohio "voucher" program was constitutional. That legislation allowed inner city parents in Cleveland to choose to use "vouchers" in order to send their children to the school of their choice, including other public, private or parochial schools. The Court found that it was constitutionally sound and did not constitute a "de-facto" subsidy for church-run schools in violation of the so-called "establishment clause of the First Amendment to the U.S. Constitution.

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I join the throngs of those who welcome this clearly reasoned opinion as a victory for parents and children, the poor and for robust political participation. Contrary to the entrenched interests of some of the bureaucrats who predict the end of the public educational system as a result of this decision, I believe that it will in fact result in better public schools and spawn much needed reform. Additionally it removes one more impediment to the flourishing of religious institutions and the equal access of those institutions in the public square.

The decision is constitutionally correct, socially just and promotes authentic freedom and opportunity for all children - regardless of their socio-economic status, geographical location or circumstances in life. However, some of those who so vociferously decry the opinion are correct in insisting that it will have a huge impact on our educational system. It is, in its potential impact on education, similar to Brown v. Board of Education, the landmark education opinion that struck down the notion that "separate but equal" was equal In fact; it is cut from the same cloth.

In Brown, a case initiated by members of the local NAACP chapter in Topeka, Kansas, thirteen parents filed a law suit arising out their exclusion from schools. In 1950 these parents attempted to enroll their children in local schools for the upcoming school year. They wanted the best schools for their children. They were refused admission and their children were compelled to attend one of the four schools for African Americans. The case was filed in February 1951. The U.S. District Court ruled against the parents but accepted psychological evidence that African-American children were adversely affected by enforced segregation.

These findings later were quoted by the U.S. Supreme Court in its 1954 opinion where the Court found that the "separate but equal" educational system was not equal.

The Ohio legislation in this case gave parents and low-income families the freedom of choice between secular and religious education, neighborhood schools, charter schools or any participating schools that would provide the best education to their children.

In Zelman the Court ruled that if in making the choice, parents decided that a religious school was preferable, that did not constitute an "endorsement" or "establishment" of religion in violation of the trajectory of decisions construing the so called "establishment" clause of the First Amendment.

Chief Justice William H. Rehnquist, the author of the majority opinion stated:

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"[T]he Ohio program is entirely neutral with respect to religion," "It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."

THE IMPACT

There is almost uniform consensus that this decision has dramatically altered the debate concerning "vouchers" being waged in State legislatures across the country. It has removed one of the "strongest" arguments raised by those who opposed any voucher system, that such an educational approach would constitute a violation of the constitutional prohibition against the establishment or endorsement of religion.

This kind of an approach to forcing poor parents to keep their children in failing schools if they could not afford a "religious" or private alternative. Those opposed to vouchers for the poor have argued that any even incidental benefit to a religious institution is "suspect" under the so-called Establishment Clause. They have also argued that giving tax money to poor people in order to let them have the same choice as those with more money would somehow threaten the public educational system.

For over twenty years, the so called "establishment clause" (properly understood as an "anti-establishment clause" in that it was intended to prevent the erection of a national church) has been interpreted as erecting a kind of "high wall" against religious faith and religious institutions.

Many (myself included) have argued that such an interpretation does an injustice to the Constitution, was not the intent of the founders, violates the free exercise of religion in the same amendment and actually ends up being hostile rather than accommodating to religious faith, religious institutions and religious people. This opinion confirms this analysis and levels the playing field.

This case has almost single-handedly changed the "church state" landscape. It has re-opened the public square for religious institutions to compete on an equal footing with their secular counterparts and restored parents to their rightful role as the first decision makers, first teachers and proper custodians of the education of their children.

Because this particular system placed into effect by the particular legislation passed in Ohio placed the vouchers in the hands of parents, the Court rightly ruled that there was no public endorsement of religion. No public money went directly to a religious institution.

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The "Wall of Separation" meant to prevent a national church and erected as a metaphor in a letter from Thomas Jefferson to the Danbury Baptists, had become a barrier and an impediment to religious freedom in some past cases. This decision has gone a long way to bringing this approach to an end.

With this decision the establishment (or "anti-establishment") clause is once again interpreted as a protection against a State enforced religion and not as a bar against parents, a barricade against religious institutions or an excuse for inefficient public educational bureaucracies. The decision will result in better public schools, more educational alternatives, happier families, better educated children and a healthier nation.

THE FACTS

The Cleveland City School District was in deep trouble. The children stuck in many of the failing schools, were not receiving the education they deserved and the kind of overall educational experience that their parents desired. A law enacted by the Ohio legislature in 1995 to cope with the near-breakdown of Cleveland's public schools provided a maximum of $2,250 each to the families of about 3,700 mostly low-income students.

Based upon their parent's choice, they could attend religious or secular private schools.

The bill also made aid available for paying tuition at suburban public schools other than the ones that had failed the students but no suburban public schools agreed to accept voucher students from Cleveland.

The legislation was entitled the "Pilot Project Scholarship Program" and it gave families in any Ohio school district under state control pursuant to a federal-court order the opportunity to do something better. Cleveland was in that very situation. Key to the constitutionality of this kind of legislative approach was the fact that parents were given the "vouchers", based on financial need, and parents made the choice. Sixty percent of the students who participated were from families at or below the poverty line.

THE LITIGATION

Backed by teachers unions and civil liberties organizations, some Cleveland residents who opposed the program sued to block it as a violation of the separation of church and state. They argued that it violated the "Establishment Clause" of the Constitution because money, originally collected as taxes, could go to a religious institution.

They were originally successful. The Federal District Court granted them summary judgment, and the Sixth Circuit affirmed.

Clint Bolick, of the Institute for Justice, a public interest legal organization, had led the efforts to support this parental choice initiative in the Courts below. He was woefully outspent by powerful unions and subjected to the worst kind of media hostility. He worked extremely hard and deserves a commendation by all those who favor vouchers. Many who support parental choice were deeply dismayed at the loss at both the Federal District and Appeals Court level.

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THE APPEAL TO THE SUPREME COURT

A "Writ of Certiorari" or "Writ for Extraordinary Review" was filed at the United States District Court. Hundreds of interested groups filed "friend of the Court" (Amicus) briefs. The grant of the "Writ of Certiorari" by the United States Supreme Court upset the opponents of Vouchers and set the stage for the most watched Church/State case in years.

The argument of voucher opponents was that to allow poor parents to use vouchers that MAY result in a parental choice of 'religious" schools and that very action somehow violated the "Establishment Clause" of the United States Constitution. Led by teachers unions, they also considered the choice a severe financial threat to the public school system.

The argument of the proponents of the voucher approach was that it empowered parents to make the choice, saved the children from failing schools and did not amount to an endorsement of religion. Further, that precluding religious schools from being chosen by parents was in fact hostile to religion and undermined parental authority.

In its own syllabus (summary) the Supreme Court explained the heart of the legal analysis of the decision:

"Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U.S. 203, 222--223. This Court's jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice."

THE IMPLICATION AND THE OPPORTUNITY

This vitally important decision lays the groundwork for a sustained effort in every State to open up the educational system. It can and will constitute a new day and an advance for parents, for the poor, and for authentic freedom only IF Catholics, other Christians, other religious people and all people of good will, engage in effective citizen participation around this vital issue.

Political participation lies at the heart of good citizenship. It also flows from understanding the Catholic teaching on participation in the "civil" order as a part of our baptismal obligation and our commitment to authentic social justice and promoting the common good.

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Once again, Catholic citizens have an extraordinary opportunity and an obligation. There is a wealth of teaching found in the social teaching of the Church that must not only be read but incarnated and made the basis for effective social action.

This decision from the United States Supreme Court has great implications but presents only an opportunity. Only a new and effective form of Catholic action can translate opportunity into a reality.

Parents have a right to choose and public authorities have a duty to insure that right. Now it is up to us make it happen.

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Rev. Mr. Keith A Fournier, the founder and president of "Common Good", is a constitutional lawyer. Long active in political participation, Fournier was a founder of Catholic Alliance and served as its first President. He is a pro-life and pro-family lobbyist. He was the first Executive Director of the ACLJ (American Center for Law and Justice). He also served as an advisor to the presidential campaign of Steve Forbes. Fournier holds a Bachelors degree (B.A.) from Franciscan University of Steubenville in Philosophy and Theology, a Masters Degree (M.T.S.) in Sacred Theology from the John Paul II Institute of the Lateran University, a Juris Doctor (J.D.) from the University of Pittsburgh and an Honorary Doctor of Laws (L.L.D.) from St. Thomas University. Fournier is the author of seven books on issues concerning life, faith, evangelization, ecumenism, family, political participation, public policy and cultural issues.