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 children’s 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 Cleveland’s six-year-old experimental voucher program squared with the First Amendment. The Cleveland initiative gave up to 2,000 of the city’s poor children publicly funded vouchers, worth $2,250 each, that they could apply toward tuition for private schools, including—and here was the nub of the First Amendment challenge—religious 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 nation’s public education system from outside competition. But a ruling that the program wasn’t constitutional would be a devastating setback for school choice. Cleveland’s 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 country”—where two out of three students fail to graduate, and only one out of ten passes the state’s eighth-grade proficiency test. The very future of school choice—since at present parochial schools are the private schools most likely to participate in inner-city voucher programs—would be in doubt.

As everybody knows, on June 27, the Supreme Court ruled five to four that Cleveland’s 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 industry’s 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, it’s 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, who’s 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 them—and to improve his workforce’s productivity—Brennan 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 Governor’s Commission on Educational Choice. The group’s report boldly called for tuition vouchers for poor children in the state’s 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 city’s 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. Brennan’s school choice proponents predicted that the court’s conservative bloc—Chief Justice Rehnquist, and Justices Scalia, Thomas, and Kennedy—would go their way. These jurists held that the First Amendment’s establishment clause—“Congress shall make no law respecting the establishment of religion”—prohibits government only from favoring any particular religion as the nation’s official creed, not all contact between church and state. Senator Kennedy’s 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 Black’s creative appropriation, in the 1947 Everson decision, of Jefferson’s “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 program’s lawyers had to win over at least one of the two remaining justices—Stephen Breyer or, more likely, given her past opinions, Sandra Day O’Connor. “We knew we had to have O’Connor’s vote,” said ex-Whitewater prosecutor Kenneth Starr, who helped choreograph the pro-voucher camp’s legal strategy. Starr asked Stephen Gilles, a constitutional law professor at Quinnipiac University and, not coincidentally, a former O’Connor law clerk, to write an amicus brief. Taking an approach that he felt would sway O’Connor, Gilles argued that the Cleveland voucher program was neutral about the kind of school the eligible children could select—it 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 O’Connor 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, O’Connor highlighted the neutrality argument and agreed that parents were making free choices. The program didn’t “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 Post’s endorsement of vouchers signaled that, after Zelman, the foundations of the public education monopoly had started to crack. To paraphrase Winston Churchill, it wasn’t 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 Association’s 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 wasn’t 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 Association—the NEA’s state affiliate—shelled out in the first two months after Zelman for ads supporting the ultimately victorious candidate in Florida’s Democratic gubernatorial primary. The FTA anointed relatively unknown Bob McBride over ex–attorney general Janet Reno after McBride told the union he’d 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” children—the equivalent of special-ed students in other states.) You can bet that more teachers’ union millions will come McBride’s 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 weren’t 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 isn’t enough, because in the battle against vouchers, we’re up against—you guessed it—the “vast right-wing conspiracy.”

I’ve covered the school choice movement for years now, so I know something about the people the AFT calls dangerous extremists—in 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 thing—there 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 haven’t been trying to destroy the public school system. They’re practical people who want to make our public schools fulfill the promise of real educational opportunity for all children. Many are businessmen who’ve run firsthand into David Brennan’s problem of undereducated workers, making them worry that the public schools aren’t preparing young people for a knowledge-era economy.

For the Jackson Hole reformers, public school failure results not from lack of resources—the conventional view—but from the system’s monopolistic nature. To these savvy businessmen, it’s 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 kid’s 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 Hole’s 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 York’s Student/Sponsor Partnership, got under way in 1986, thanks to one of Jackson Hole’s “millionaire ideologues”—investment banker Peter Flanigan, CFA’s ex-chairman. Earlier in the eighties, Flanigan had participated in tycoon Eugene Lang’s 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 student’s tuition came from an individual sponsor, who also agreed to act as his mentor. The results have been spectacular. The Rand Corporation found that Flanigan’s 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 Antonio’s 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 Antonio’s 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 initiative—now one of the biggest in the country—to 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 speaker—and the chances look good—then expect publicly funded vouchers in several Texas cities in the near future. The Jackson Hole consensus was that Texas represents the school choice movement’s 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 court’s 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 Justice’s Clint Bolick, one of the school choice movement’s top legal guns.

Now the school choice movement needs to become as politically well organized as its union opponents. The CFA’s new chairman, Circuit City CEO Richard Sharp, and its new executive director, John Kirtley, will try to transform a decentralized grassroots movement—with virtually no professional staff, no clear national organization structure, no significant advertising budget, no paid political cadres, and no national headquarters—into 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 city’s 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 Williams’s 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 superintendent’s 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 Jackson’s 1988 presidential campaign. As a legislator, she proposed an education bill allowing Milwaukee’s 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 city’s public schools, overall dropout rates were above 50 percent—and higher still for black children. Some 70 percent of black kids couldn’t 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 Williams’s 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 Harvard’s Paul Peterson and the Manhattan Institute’s 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 Milwaukee’s school superintendent during the early 1990s, took up her mantle. Fuller’s stance on most social and economic issues puts him in the Democratic party’s 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 explanation—lack 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 union’s 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 Fuller’s 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 city’s 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 Bradley’s then-president Michael Joyce to support vouchers was driving through some of the city’s 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 couldn’t afford the tuition. It made no sense.”

It took a decade of struggle before most Milwaukee citizens came around to Joyce’s view—but come around they did. Today, teachers’ union propaganda about vouchers as the nefarious work of wealthy right-wing extremists gets laughed out of court. There’s virtually an across-the-board consensus in the city—it includes everybody from the Milwaukee Public Schools’ Board of Directors to the city’s leading editorialists to Democratic mayor John Norquist—that 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 it’s 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. I’ve 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. I’d first show him the Bruce-Guadalupe school, in one of the city’s Hispanic neighborhoods, and Messmer, a mostly black Catholic high school in a low-income central Milwaukee neighborhood. I’ve written warmly about these schools before (see “The Schools That Vouchers Built,” Winter 1999); everything I’ve learned since confirms that they’re among America’s 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 K–12 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 school’s 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 children—and it has grown only more popular since I wrote about it three years ago. Knowing that Milwaukee’s 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 nation’s 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.

Milwaukee’s 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, there’s now unprecedented partnership between the city’s 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 system’s poorest schools—those most likely to lose students to vouchers—made the greatest gains.

John Gardner, a former labor organizer and self-described “radical democrat,” isn’t 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 nation’s 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 Instruction”—a 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.


City Journal is a publication of the Manhattan Institute for Policy Research (MI), a leading free-market think tank. Are you interested in supporting the magazine? As a 501(c)(3) nonprofit, donations in support of MI and City Journal are fully tax-deductible as provided by law (EIN #13-2912529).

Further Reading

Up Next