For the past decade, the school choice movement has fought to win the last remaining civil rights battle: to ensure that poor minority kids have access to decent and safe schools. First through private philanthropy, then by successfully pushing for publicly funded voucher programs in Cleveland and Milwaukee, the movement to give poor inner-city parents the power to choose their childrens schools has already liberated tens of thousands of minority kids from failing public schools.
But this year the crusade needed something more than activism and philanthropy: to protect and extend its gains, it needed the votes of at least five Supreme Court justices. In February, the Court heard oral arguments in Zelman v. Simmons-Harris to decide whether Clevelands six-year-old experimental voucher program squared with the First Amendment. The Cleveland initiative gave up to 2,000 of the citys poor children publicly funded vouchers, worth $2,250 each, that they could apply toward tuition for private schools, includingand here was the nub of the First Amendment challengereligious schools.
A favorable verdict would mark the first breach in the legal wall of separation between church and state that for decades has helped shield the nations public education system from outside competition. But a ruling that the program wasnt constitutional would be a devastating setback for school choice. Clevelands voucher kids, most of whom were in Catholic schools, would wind up back in what an Ohio official calls one of the most dramatically failing school systems in the countrywhere two out of three students fail to graduate, and only one out of ten passes the states eighth-grade proficiency test. The very future of school choicesince at present parochial schools are the private schools most likely to participate in inner-city voucher programswould be in doubt.
As everybody knows, on June 27, the Supreme Court ruled five to four that Clevelands program was constitutional. The school choice movement was alive and well.
Two big men in their seventies, listening to the oral arguments for Zelman from the front-row VIP seats, personified the conflict of visions and interests at the heart of the case. Since the Democrats lost the White House, Massachusetts senator Ted Kennedy, a longtime voucher foe, has been the public education industrys Number One defender. When asked why President George W. Bush has achieved so little of his school choice agenda, administration official Nina Rees bluntly responded, Two words: Ted Kennedy.
Kennedy never found a public school good enough for his own kids, so why was he there in the front row, signaling support for the teachers union lawyers trying to force Cleveland kids back into their dismal neighborhood schools? Kennedy supporters would say that he is a principled Jeffersonian, committed to maintaining the wall of separation between church and state. No doubt. But regardless of the First Amendment, Kennedy would still seek to maintain the Berlin Wall that protects the public schools from competition. After all, its good politics. The public education industry, with 5 million employees and $350 billion in annual expenditures, has become one of the key Democratic political constituencies, supporting through its powerful unions those candidates willing to keep the Wall in place and throwing its considerable weight behind other liberal policy goals such as national health insurance and affirmative action.
Sitting near Kennedy was David Brennan, the spirited, six-foot-five, Stetson-topped entrepreneur and industrialist from Akron, Ohio, whos been the prime mover behind the Cleveland voucher experiment. Like others in the school choice movement, Brennan joined up after some painful experiences with the public schools. During the 1980s, he discovered that many of the young workers in his manufacturing firms were functionally illiterate and innumerate. To help themand to improve his workforces productivityBrennan created learning centers at his facilities. These company schools quickly and inexpensively boosted the employees math and reading skills.
Knowing now what was possible, Brennan threw himself into efforts to improve the Ohio public schools, but he soon concluded that the existing system was hopeless. The 1990 election of Republican George Voinovich as Ohio governor gave Brennan the opportunity to try a different approach. The new governor made Brennan (an old friend and financial backer) the chairman of the Governors Commission on Educational Choice. The groups report boldly called for tuition vouchers for poor children in the states 12 largest school districts. The proposal went nowhere at the time, but it laid the political groundwork for the Cleveland voucher program, enacted by the State Legislature in 1997, after the state takeover of the citys dismal public schools. Providing seed money for two new voucher schools in the city, Brennan then helped nurture the program until it reached the high court.
The opposing camps that Brennan and Kennedy represented each could count certain justices in their corners. Brennans school choice proponents predicted that the courts conservative blocChief Justice Rehnquist, and Justices Scalia, Thomas, and Kennedywould go their way. These jurists held that the First Amendments establishment clauseCongress shall make no law respecting the establishment of religionprohibits government only from favoring any particular religion as the nations official creed, not all contact between church and state. Senator Kennedys anti-voucher side in turn believed that liberal justices Ginsberg, Souter, and Stevens would nix the Cleveland program. In earlier cases, these justices had embraced Justice Hugo Blacks creative appropriation, in the 1947 Everson decision, of Jeffersons wall of separation phrase, used in a letter he wrote long after ratification of the Bill of Rights. On this reading of the establishment clause, tax dollars going to religious schools would violate the law under almost any circumstances.
Four in favor, three against: the Cleveland programs lawyers had to win over at least one of the two remaining justicesStephen Breyer or, more likely, given her past opinions, Sandra Day OConnor. We knew we had to have OConnors vote, said ex-Whitewater prosecutor Kenneth Starr, who helped choreograph the pro-voucher camps legal strategy. Starr asked Stephen Gilles, a constitutional law professor at Quinnipiac University and, not coincidentally, a former OConnor law clerk, to write an amicus brief. Taking an approach that he felt would sway OConnor, Gilles argued that the Cleveland voucher program was neutral about the kind of school the eligible children could selectit could be a religious or secular private school, or even a public school in a different district. We tried to show that this was true private choice and that all schools were eligible for the vouchers, Gilles said. But we also thought OConnor would need something more. We had to prove that there was no pressure on parents to choose religious schools.
Gilles was right. In her concurring opinion upholding the Cleveland program, OConnor highlighted the neutrality argument and agreed that parents were making free choices. The program didnt establish religion.
How big a victory Zelman was for the school choice movement became clear the next day, when the Washington Post, a pillar of the liberal establishment, editorialized in favor of vouchers. The failure of many public school systems around the country to offer any semblance of an education to millions of children is not a matter of serious dispute, the Post wrote. Wealthy and middle-class people have an out: private schools or a move to a jurisdiction with better public schools. The poor often have no option. The Post understood, too, that vouchers could push public schools to do a better job for all children. In fact our quarrel with the Cleveland program would be that the vouchers are too small, the paper noted. Imagine how much competition might be generated, and with what respect poor parents might be treated, if they were given an $8,000 voucher for each child, and public schools really had to prove they were worth what society now spends on them.
The Posts endorsement of vouchers signaled that, after Zelman, the foundations of the public education monopoly had started to crack. To paraphrase Winston Churchill, it wasnt the end of the war over school choice, or even the beginning of the end, but it did seem to mark the end of the beginning.
Stung by the defeat, the teachers unions and their allies swiftly launched a political counteroffensive. The National Education Associations principal litigator, Robert Chainin, had already said that the union would keep on fighting vouchers, whatever the court decided. At a public forum in New York City, he bluntly acknowledged that, for his clients, opposition to vouchers wasnt ultimately about constitutionalism or educational philosophy; it was about union interests.
The $2 billion in dues that annually pours into teachers unions coffers will allow them to battle for those interests on many fronts. Witness the $3 million that the Florida Teachers Associationthe NEAs state affiliateshelled out in the first two months after Zelman for ads supporting the ultimately victorious candidate in Floridas Democratic gubernatorial primary. The FTA anointed relatively unknown Bob McBride over exattorney general Janet Reno after McBride told the union hed seek to repeal two recent laws that created the equivalent of vouchers for more than 20,000 Florida children. (One law gives corporations tax credits for contributions to scholarship funds for poor children switching from public to private schools; the other pays private school tuition for special needs childrenthe equivalent of special-ed students in other states.) You can bet that more teachers union millions will come McBrides way as he opposes Republican governor Jeb Bush in November. And around the country, union dues pay for a full-time union staff of hundreds who spend all their time on political lobbying and electoral politics.
As if the teachers unions war chest werent already overflowing, the American Federation of Teachers (AFT) authorized at its Las Vegas convention this summer an additional levy of $1 per month per member. That extra $12 million a year will support a special Solidarity Fund to thwart vouchers and other education reforms. Justifying the new dues, AFT vice president Herb Magidson warned the 3,700 convention delegates that there is a well-funded, extreme group of ultraconservatives led by millionaire ideologues who seek to do away with unions and, failing that, to bleed us dry. Translation: $2 billion a year isnt enough, because in the battle against vouchers, were up againstyou guessed itthe vast right-wing conspiracy.
Ive covered the school choice movement for years now, so I know something about the people the AFT calls dangerous extremistsin its eyes, I might qualify as a member of the conspiracy myself. This summer, I attended a conference in Jackson Hole, Wyoming, that the AFT would regard as Enemy Central. Sponsored by Children First America, an educational reform group, the meeting brought together over 70 school choice activists from across the country to determine how best to combine their efforts after Zelman.
The AFT would be right about one thingthere were a lot of millionaires, even billionaires, on hand. Contrary to AFT demonology, they are far from extremists. They have no ideological ax to grind, and they havent been trying to destroy the public school system. Theyre practical people who want to make our public schools fulfill the promise of real educational opportunity for all children. Many are businessmen whove run firsthand into David Brennans problem of undereducated workers, making them worry that the public schools arent preparing young people for a knowledge-era economy.
For the Jackson Hole reformers, public school failure results not from lack of resourcesthe conventional viewbut from the systems monopolistic nature. To these savvy businessmen, its just Economics 101: enterprises that never need to worry about losing customers and face no consequences for bad performance will usually deliver shoddy products. Instead of throwing yet more money at an unaccountable system, these reformers decided to bypass it entirely and give private school tuition to the inner-city families most victimized by bad public schools. This way, poor parents might have some choice over their kids education, just as richer families do. And if the state schools want to entice these students to stay, let them make the reforms needed to ensure quality education.
Many of the Jackson Hole philanthropists support publicly funded vouchers in principle. But until recently, they believed that public vouchers faced insurmountable political and legal obstacles. Even if state legislatures passed voucher programs, many assumed, state or federal courts would strike them down. By creating private voucher programs, funded by many millions of generous philanthropic dollars, they knew they could help many poor kids immediately, while building the constituencies and waging the legal battles that might eventually lead to tax-funded school choice.
Jackson Holes sponsor, Children First America, started out ten years ago as a clearinghouse for these private voucher programs. The organization began getting calls from business leaders and philanthropists eager to start their own scholarship programs. It now counts more than 115 private voucher programs at work in almost 100 communities, serving more than 60,000 students nationwide.
The prototype program, New Yorks Student/Sponsor Partnership, got under way in 1986, thanks to one of Jackson Holes millionaire ideologuesinvestment banker Peter Flanigan, CFAs ex-chairman. Earlier in the eighties, Flanigan had participated in tycoon Eugene Langs famous I Have a Dream project, adopting a class of poor eighth-grade public school students and promising to pay their college tuition if they worked hard for the next four years and graduated from high school. But, as he regretfully learned, his adoptees public high schools were so bad that many of the kids dropped out, squandering an extraordinary opportunity.
Flanigan found a better use for his time and money. His Student/Sponsor Partnership placed at-risk inner-city public school students in religious schools, most of them Catholic. Each students tuition came from an individual sponsor, who also agreed to act as his mentor. The results have been spectacular. The Rand Corporation found that Flanigans scholarship students far outperformed similar students enrolled in public schools in graduation rates, SAT scores, and college admissions.
Joining Flanigan at Jackson Hole was another millionaire private voucher innovator: a tall, middle-aged Texan named James Leininger. Like Flanigan, he joined the school choice movement after encountering firsthand the poor performance of inner-city public schools. Formerly a San Antonio physician, Leininger is founder and CEO of Kinetic Concepts, a medical-supply firm based in that city. One afternoon in the late eighties, his human resources officer sheepishly told Leininger that some of his employees were functionally illiterate, despite having high school diplomas. It became apparent to Leininger that San Antonios public schools were a disaster zone. After reading about a private voucher program in Indianapolis, he decided to start something similar in his own backyard. His initial offer of a few hundred tuition scholarships generated an overwhelming response. In the first three days after he announced the grants in April 1992, 3,000 applications poured in from poor Hispanic parents, desperate to free their kids from San Antonios public schools.
The teachers unions predictably tarred Leininger as a fanatic out to kill the public schools. He shrugs. Until then, he says, it never occurred to me that there was anything wrong with helping poor families educate their children.
Leininger and one of his colleagues, Hispanic businessman Robert Aguirre, used the popularity of this scholarship initiativenow one of the biggest in the countryto launch a statewide effort to get the Texas Legislature to pass a full-scale public voucher program. These grassroots political efforts may soon pay off. Over the last few years, the Legislature has come close to enacting several voucher bills. If the Republicans capture the state House of Representatives this fall and get to name the next speakerand the chances look goodthen expect publicly funded vouchers in several Texas cities in the near future. The Jackson Hole consensus was that Texas represents the school choice movements best chance for a quick victory in a big state, though choice initiatives in Colorado and Utah also look promising.
Any such initiatives will meet new legal and political attacks from the teachers unions and their allies, of course. In particular, the unions are counting on the Blaine Amendments in dozens of state constitutions as their next line of legal defense. These relics of nineteenth-century anti-Catholic hysteria, originally sponsored by hate groups like the KKK and the Know Nothings, strictly bar public funding of religious schools. Armed with Zelman, however, school choice lawyers will now argue that the amendments are inconsistent with the high courts reading of the establishment clause. The lawyers will also argue that the Blaine Amendments separately violate the religious freedom clause of the First Amendment. The Blaine Amendments morally squalid origins will help discredit them too. We will show the courts that the Blaine Amendments were the product of anti-Catholic bigotry, said the Institute of Justices Clint Bolick, one of the school choice movements top legal guns.
Now the school choice movement needs to become as politically well organized as its union opponents. The CFAs new chairman, Circuit City CEO Richard Sharp, and its new executive director, John Kirtley, will try to transform a decentralized grassroots movementwith virtually no professional staff, no clear national organization structure, no significant advertising budget, no paid political cadres, and no national headquartersinto an effective national political force for education reform. The $3 million that the teachers union spent in two months on one primary race in Florida is probably more than all the school choice groups combined have ever spent on organization and infrastructure.
Even so, Kirtley is banking on the powerful ideal of educational equality. We may be underfunded and underorganized, he says. But we can always get more funds and become better organized. What we do have that our opponents will never have is moral justification.
Nowhere is that moral justification clearer than in Milwaukee, where the school choice movement that began in the 1990s recalls the civil rights struggle of the 1950s and 60s. The citys battle for choice even had its own Rosa Parks: Polly Williams, a single mother of four and former welfare recipient.
During the mid-eighties, Milwaukee school authorities assigned Williamss daughter to a school across town. Seeing no point in exchanging a failing school that was close to home for a lousy school miles away, Williams resorted to civil disobedience. After school officials refused to transfer her daughter to a closer school, Williams stormed into the superintendents office and slapped a note down on his desk. It said: My daughter will stay home before I let her be bused. You may send the police to arrest me. She soon had her transfer request approved.
Energized by her experience, Williams entered politics, winning a state legislative seat and serving as Wisconsin chair of Jesse Jacksons 1988 presidential campaign. As a legislator, she proposed an education bill allowing Milwaukees black community to set up its own separate school district. Nothing could be worse for black children, she felt, than the status quo. Despite court-ordered busing and ever more money spent on the citys public schools, overall dropout rates were above 50 percentand higher still for black children. Some 70 percent of black kids couldnt read at grade level.
When the separatist option failed, Williams introduced a bill that would give a few thousand poor Milwaukee public school children tax-funded vouchers for private school tuition. The voucher bill passed with the support of Republican governor Tommy Thompson and many Republican legislators, despite heated opposition from the teachers union, state education officials, and most of Williamss fellow Democratic lawmakers. The first 1,000 voucher winners left the public schools and enrolled in private schools in 1991. Today, 12,000 kids are in the program. Research by Harvards Paul Peterson and the Manhattan Institutes Jay Greene has found significant test-score gains for the voucher students, compared with similar students in the Milwaukee public schools. Little wonder that the program is wildly popular with participating parents.
After Polly Williams moved on to other crusades, Howard Fuller, a sociology Ph.D., former college basketball star, and Milwaukees school superintendent during the early 1990s, took up her mantle. Fullers stance on most social and economic issues puts him in the Democratic partys left wing. But when it came to grasping why the Milwaukee public schools were failing black children, he had no patience with the usual liberal explanationlack of money. Instead, based on hard experience within the system, he blamed the teachers union, the entrenched city and state education bureaucracies, and the Democratic party politicians who took the unions campaign lucre. Reform, he began arguing when he resigned as superintendent in 1995, is hopeless without outside competition. Today, Fuller is chairman of the Black Alliance for Educational Options, a new national organization that seeks support for vouchers among Fullers fellow blacks.
At first, the voucher program seemed as if it might tear the city apart. In a well-financed campaign, the Milwaukee Teachers Association charged that the program undermined public education and democracy itself. The teachers union ran anti-voucher candidates for school board elections. The citys major newspaper, the liberal Milwaukee Sentinel Gazette, took a strong anti-voucher stance. People For the American Way and the American Civil Liberties Union set up shop in Milwaukee, determined to stop the voucher menace.
These anti-voucher forces worked tirelessly to convince the public that every tax dollar spent for vouchers meant one dollar fewer for the public schools, and that to support even minimal school choice was to abandon the public school ideal and fall prey to the vast right-wing conspiracy. In Milwaukee, though, this tactic flopped. As the examples of Williams and Fuller proved, key players in the voucher coalition were on the Left.
A notable exception was the conservative Bradley Foundation. In the mid-1990s, after a court issued a temporary injunction against using vouchers for religious schools, the foundation, practicing compassionate conservatism before George W. Bush coined the term, put up the money that allowed several thousand children to continue attending such schools. What helped persuade Bradleys then-president Michael Joyce to support vouchers was driving through some of the citys desolate minority neighborhoods every day on his way to work. I would see these black kids, standing at bus stops in the middle of winter at 6:30 or 7 AM, waiting for a bus to take them clear across town to a school in another neighborhood that the system had consigned them to, Joyce recalled. In the meantime, there were private schools with empty seats right there in the neighborhood, where those kids might have succeeded, but their families couldnt afford the tuition. It made no sense.
It took a decade of struggle before most Milwaukee citizens came around to Joyces viewbut come around they did. Today, teachers union propaganda about vouchers as the nefarious work of wealthy right-wing extremists gets laughed out of court. Theres virtually an across-the-board consensus in the cityit includes everybody from the Milwaukee Public Schools Board of Directors to the citys leading editorialists to Democratic mayor John Norquistthat school choice works. Even John Witte, the University of Wisconsin professor who studied the voucher program in the mid-nineties for the state education department and found few academic benefits, now thinks that its good for the kids and should continue.
The only groups still pining for the ancien régime are the teachers unions, People For the American Way, and the American Civil Liberties Union. What this reactionary old guard fears is that parents in other cities with terrible public schools will see what happened in Milwaukee, and lobby for change.
They have cause for worry. Ive always thought that if I were trying to convince someone that school choice is good for kids, I would bring him to see some of the schools that vouchers built in Milwaukee. Id first show him the Bruce-Guadalupe school, in one of the citys Hispanic neighborhoods, and Messmer, a mostly black Catholic high school in a low-income central Milwaukee neighborhood. Ive written warmly about these schools before (see The Schools That Vouchers Built, Winter 1999); everything Ive learned since confirms that theyre among Americas best.
Argentine-born Walter Sava headed up the local Hispanic community center when he decided to take advantage of tuition payments from the voucher program to resuscitate Bruce-Guadalupe, formerly a Catholic archdiocesan elementary school. As Sava had zero previous experience with K12 education at the time, the rigidly bureaucratic Milwaukee public school system never would have given him such an opportunity.
Nor would the system have allowed him to launch the innovative projects that have made the now-secular Bruce-Guadalupe an educational jewel. First Sava built a brand-new school building by raising funds from the business community. He made the school an integral part of the existing community center, enabling both institutions to cut costs by sharing the cafeteria, a medical clinic, and recreation facilities. To move as much of the voucher money directly into the classroom as possible, he used parent volunteers for some of the non-pedagogic jobs that soak up lots of the public schools budgets. Most important, Sava hired teachers based on their talent and dedication to kids instead of how many years they had spent on the job. The teachers have helped establish the schools orderly and serious atmosphere, and its culture deeply respectful of academic achievement.
No wonder the school has a long waiting list of families keen to enroll their childrenand it has grown only more popular since I wrote about it three years ago. Knowing that Milwaukees institutionalized voucher system ensured a steady funding stream, Sava added a middle-school building to the complex this year, expanding by several hundred the number of children the school could serve.
Halfway across town, Messmer High School stands as another beacon to the saving power of school choice. Like Bruce-Guadalupe, Messmer was an abandoned Catholic school, reopened and made into one of the nations premier inner-city high schools by a black Capuchin friar named Bob Smith, known to everyone in Milwaukee as Brother Bob. Like Sava, Brother Bob never went to ed school or received a license from the education monopoly.
He and his hardworking teachers performed miracles at Messmer with poor, at-risk black kids even before vouchers. But with the voucher money, Messmer could pay teachers more and take in more poor kids. Messmer enjoys so much support in the community that many parents begged Brother Bob to open an elementary school. In September 2000, he did: Messmer Elementary, enrolling 200 kids, 90 percent of them voucher recipients, opened its doors a mile and a half from the high school.
Milwaukees voucher success, in Bruce-Guadalupe, Messmer, and other schools, disproves the teachers unions hoary claim that vouchers will balkanize the community and will hurt the public schools by robbing them of students (and thus funds). Milwaukee public school enrollment has risen by 4 percent since the voucher program started, while inflation-adjusted spending per pupil has increased from $7,600 to $9,500. As for balkanization, theres now unprecedented partnership between the citys public and private schools. Across Milwaukee, public and private schools share space and work together on after-school programs; public school principals visit the private school down the street to see how student uniforms might work for their schools.
Far from hurting the public schools, voucher competition seems to have improved them. Since vouchers got into full gear in 1997, Milwaukee public student test scores, as measured against a national sample, went up in 12 out of 15 categories, and the four-year high school graduation rate increased 7 percent. Harvard economist Caroline Hoxby has shown that students in some of the Milwaukee systems poorest schoolsthose most likely to lose students to vouchersmade the greatest gains.
John Gardner, a former labor organizer and self-described radical democrat, isnt surprised. Probably the most pro-voucher member of the Milwaukee school board, he is also a firm believer in the public school ideal, having sent his own three sons to the Milwaukee public schools. During two winning campaigns for a school board seat, he staked his reputation on the claim that vouchers would make the public schools better.
Gardner rattles off positive public school reforms that he believes voucher competition encouraged. Before vouchers, the school system had one of the nations most onerous seniority clauses in its teachers union contract. The pressure of having voucher schools that hire on merit rather than seniority, Gardner argues, forced the union to make concessions, so that now almost every principal in the system can fill vacancies with the most qualified candidates, regardless of seniority. Thanks to voucher competition, too, Gardner adds, principals have more say in how to spend the money allocated to their schools.
Voucher competition has also led many Milwaukee public elementary schools to offer Direct Instructiona phonics-based reading program for early grades that has produced excellent results, particularly among low-income minority children. Previously, many public school principals snubbed phonics, using instead the discredited whole language approach favored by the progressive ed schools. But when they saw that most voucher schools not only were using Direct Instruction but also advertising it to parents, these principals quickly changed tack to avoid losing students. Now we have Direct Instruction in 46 schools, Gardner says.
The national teachers unions like to present themselves as the underdog in the fight over school reform. They are not. But with Zelman, with Children First America gearing up for battle, and with the demonstrable success of voucher schools in Milwaukee and Cleveland, the end of the beginning of the struggle may soon give way to the beginning of the end.