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And Now the Debates Really Begin

by Martha Minow - July 01, 2002

A look at some of the educational issues likely to arise in the wake of the Zelman decision.

The Supreme Court’s bottom-line—upholding vouchers redeemable by private, including religious, schools—did not surprise anyone who has followed the Court’s decisions in recent years.  The justices in the Court’s majority have been moving in recent years to replace the concern for separating government and religion with a concern for ensuring neutrality by government, neither favoring nor disfavoring religion.  As a result, prior decisions banning direct public subsidies for religious indoctrination fade in importance; indeed, a neutrality criterion might even find constitutional defect in a school voucher scheme that explicitly excludes only religious private schools. 


Recent Supreme Court decisions have also emphasized that private individual decisions to use public resources break the chain between government and religion, and parental decisions to elect religious programming insulate children from alleged government-sponsored coercion or pressure even when those programs make use of public resources.   Chief Justice Rehnquist’s majority opinion in Zelman v. Simmons-Harris embraces the Cleveland voucher scheme as neutral vis a vis religious schools, other private schools, and public school options; it also finds that the role parents play in choosing to direct public vouchers to religious schools is sufficient to sever any worrisome tie between religion and government. 


The majority seems remarkably untroubled by practicalities -- like the fact that some 96 percent of the parents chose religious schools with the vouchers --  in part because the majority emphasizes one realistic feature of the Cleveland scheme: Parents come to the voucher option as one of a range of schooling choices, including conventional public schools, new charter or “community” schools, and specialized public magnet schools.   The dissenters worry about what kind of neutrality or private choice could be involved to produce a 96 percent up-take of religious schools and what kind of divisiveness may now ensue as different religious groups compete for public resources and socialize children in potentially less-than-universalistic values.  


Legal observers will debate the fine points of the opinions, but for educational policy, the debate now begins in earnest.  Every state, including those that currently ban direct government expenditures to religious schools, will now face debates about whether to approve vouchers, and if so, with what conditions and details.   The intense state and local debates over vouchers will occupy lawyers, politicians, educators, and parents for years to come.   Communities facing no state constitutional prohibition against vouchers for religious schools will immediately face the question: now that there is the right under federal law to pursue such plans, is it the right thing to do?  This means assessing whether the diversion of resources—and families—from public schools offers more value not just to the students immediately affected but also to publicly financed education for everyone to warrant the loss of resources and participation in the project of the “common school.” 


Arguably, competition from private schools will inspire improvement in public schools as teachers and administrators in both settings try to attract students, experiment with curricular reforms, recruit new personnel, and generate measures for trumpeting success. Yet unless there are comparable measures, such as statewide assessments, real comparisons will not be possible.  Even in the best of circumstances some new start-up schools, whether public or private, will fail and some students will be stuck in failing schools until no such schools exist any longer.   Parallel to school choice, and probably more important to school improvement, has been the standards movement, carrying with it state-level assessments, prodded now by federal law.  Any new voucher programs should require participating schools to comport with the state assessment requirements, imperfect as they are, to permit meaningful comparisons between public and private schools.  And school choice plans should ensure protections against discrimination in school admissions both because of fundamental fairness and because otherwise there will be no fair competition to assess.


Deciding to include religious schools in a voucher plan raises the particular question of whether public funds should subsidize religious instruction or indoctrination.   Some communities will simply decide no, that is not what public resources should support.  They then will risk lawsuits charging non-neutrality with regard to religion.  Others will include religious schools but then face the tricky judgment about which religious schools to include.  Some criteria must be used.  Cleveland requires participating private schools to meet statewide education standards; to refrain from discrimination on the basis of race, ethnicity, national origin, or religion; and to agree not to advocate or foster unlawful behavior or teach hatred of any person on the basis of race, ethnicity, national origin, or religion.  Under these criteria, some teachings of some religions might seem problematic, as would required attendance at religious services or immersion in religious practices if these schools are truly to avoid discrimination on the basis of religion. What about discrimination on the basis of gender or disability?  Communities exploring vouchers will have to ensure that boys and girls have comparable educational opportunities and that students with disabilities receive the free appropriate education, with access to the general curriculum, assured by state and federal guarantees.


Policies that include religious schools and set the level of the voucher to match religious school tuitions but fall far short of secular private school tuitions will trouble many who want the neutrality commitment to be real.  Yet absent subsidies from religious congregations and institutions, secular private schools find it near impossible to charge comparably low tuitions.  In Cleveland, several such schools ended up converting into public “community schools” because it allowed them access to more public per-pupil funds. 


But finding a workable mix among private religious and secular schools and varied kinds of public schools will require consideration of not only finance but also social cohesion.   Little jeopardy to social cohesion follows if 5 or 8 percent of a population attends religious schools, but a different story emerges if 25 or 50 percent attend religious schools.  The public funding of religious schools in the Netherlands, Great Britain, and Canada may not have produced social conflict in the past, but increasing diversity within the populations in those countries has triggered new levels of disagreement and concern over precisely this issue.


The decision in Zelman will make it easier for publicly funded social service programs to use religious actors and may make it more difficult to exclude prayer from public schools.  The outcry against the Ninth Circuit decision striking down the Pledge of Allegiance seems more telling in this respect than the decision itself.   The meaning of neutrality toward religion will be tested over and over again as ostensibly even-handed practices bump up against communities where students come literally from all over the world.


Vigorous debate will -- or at least should -- emerge about whether and how to enlarge school choice to move across district boundaries, especially between urban and suburban areas.  For the fundamental fact to face is that America already embraces school choice -- for those who can afford to select where to live.  The high levels of quality and parental satisfaction with public suburban schools contrast sharply with the quality and satisfaction levels of public urban schools.  If voucher programs are meant to elevate quality and enhance equality, the urban school districts and low-cost urban private schools within them cannot do it alone.  Yet suburban communities do not favor vouchers.  So a probable topic for debate is whether decisions about school choice will remain at the local district level or move to regional or state-wide decisions.  Simply inviting the suburban schools to participate yielded a big zero for the Cleveland plan.


Meanwhile, voucher programs and competition between private and public schools will be deeply affected by the looming teacher shortage.   Competition for strong teachers will increase and perhaps a greater array of teaching settings will attract more people to enter the field, though increased salaries, improved quality of school environments, and professional support will be more significant factors.


Whether, when all is said and done, experiments with school choice will improve high school graduation rates, the quality of instruction, and the levels of student learning remains unknowable at this point.  These, along with a commitment to strengthening an inclusive, tolerant society offering opportunity for all, should be the guideposts for lively debates ahead.

Cite This Article as: Teachers College Record, Date Published: July 01, 2002
https://www.tcrecord.org ID Number: 10950, Date Accessed: 10/16/2021 9:11:49 AM

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About the Author
  • Martha Minow
    Harvard Law School
    E-mail Author
    MARTHA MINOW, Professor of Law at Harvard Law School, teaches Family Law and Civil Procedure. Her scholarship includes articles about the treatment of women, children, persons with disabilities, and members of ethnic, racial, or religious minorities. She serves on the boards of The Bazelon Center for Mental Health Law, the Covenant Foundation, the W.T. Grant Foundation, and she is an advisor to Facing History and Ourselves. She has served on the board of several child welfare agencies, the American Bar Foundation, and the Carnegie Corporation Task Force on Education in the Early Years. She is co-chair of an interfamily initiative, Children's Studies at Harvard.
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