High Bark, Low Bite: A Perspective on the Possible Impact of the Supreme Court Cleveland Voucher Decision


by Arthur Levine - July 08, 2002

A view of the Zelman decision as an extension of existing practice.

In the days since the Supreme Court decision on the Cleveland voucher case, there has been an avalanche of opinion pieces, analysis articles, and expert evaluations on the subject. One of the most frequent observations is that this is a landmark ruling, the most important decision in education since the Supreme Court’s 1954 Brown vs. Topeka Board of Education decision.

 

That is a powerful statement. Brown mandated change.  In fact, it required a transformation -- a 180 degree shift -- in educational practice and policy. Brown declared the existing law of the land unconstitutional, and so the educational practices and social institutions rooted in the doctrine of separate but equal became illegal. These were laws, policies, and practices that the Supreme Court had found Constitutional in 1896, but saw fit to reverse in its unanimous opinion 58 years later. This is a truly profound Supreme Court decision.

 

Options and Extensions

Zelman vs. Simmons-Harris is not in this category. First, it does not mandate change. Rather, it allows a state to adopt a practice if it so chooses.  

Second, while it does extend existing practice, it does not represent a radical departure from it. The Zelman decision upholds an Ohio law giving tuition aid, or vouchers, to the families of children attending failing Cleveland public schools to attend public or private, religious or nonreligious schools of their choosing. The Ohio law also provides tutorial aid for students remaining in the public schools.

 

Given these two distinctions between Brown and Zelman, it is important to focus on the controversial elements, which have been called groundbreaking, in the Court’s recent decision.

 

Government Support for Religious Schools

   

The most commonly identified element of the Zelman decision is that it permits government money to support religious schools. This is not new. We already provide financial aid for students to attend religiously affiliated colleges and universities at the postsecondary level with programs like Pell grants and G.I. Bill funding. The extension in Zelman is in moving the policy from grade 13 to grade 12 and below.

 

In the same vein, several states offer tax credits for sending children to private schools. What Zelman does is extend this practice from a negative payment to the government by the taxpayer to a positive payment by government to the taxpayer. Although both represent government support of religious schools, tax credits are geared to more affluent populations. Direct payments represent an extension of the existing programs into lower-income populations.

 

Religious Alternatives to Public Schools

 

Zelman also allows children to attend religious schools rather than public schools at taxpayer expense. In this sense, it promotes the development of a heterogeneous educational system, composed of differing types of schools with a multiplicity of discordant and competing values and sponsorships. This is not new either. Though the overwhelming majority of children attend public school in the U.S., this country has an extraordinary array of educational choices and an extraordinarily diverse system of education. To begin with 23% of the nation’s schools are private. They include not-for-profit and for-profit, sectarian and nonsectarian, coed and single-sex, and progressive and classical schools.

           

Add to this the new breed of publicly, but also frequently privately, funded charter schools. These quasi-public schools, which have been legislated in 37 states, are intended to be free to hire their own teachers and administrators, design their own curriculums and create their own learning environments. Sponsored by community groups, non-profit organizations, and for-profit companies, depending upon the state law, there are now more than 2,200 charter schools in the United States and their numbers are rising quickly. For instance, Arizona alone has nearly 400.

           

Then there are for-profit schools. To begin with, more than 10 percent of charter schools are managed by for-profit companies. Edison, the best known of the for-profit school firms, in Spring, 2000 operated 113 schools, enrolling 57,000 students. This makes Edison the sixty-fourth largest school district in the United States out of 15,000.

           

On top of this, there is home schooling. No one knows the real number, but it is estimated at somewhere between a half a million and two million school-age children being educated at home, and anecdotally, these numbers are growing too.

           

Plus three states- Ohio, Wisconsin, and Florida- have vouchers of varying sorts and by federal law, public school systems are required to pay to send students with disabilities needing services unavailable at their schools to out-of-district public or even private schools.

 

Quite frankly, it is difficult to imagine a more heterogeneous school system. Zelman extends and formalizes this reality.

 

Democracy and Public Education

 

Zelman equilibrates the education a child receives at a religious school with the education a child receives at a public school. In this sense, the decision can be interpreted as violating America’s historic belief that public education is a pillar for maintaining a democratic society in which church and state are separate. Again we are long past this. The public schools in the inner cities of the largest urban centers are increasingly attended not by the greater public, but by the poor. In the main, as in Cleveland, these are schools in which student achievement is low and dropout rates are very high. The result is that affluent families who live in the cities are able to bypass the public schools and send their children to private schools -- secular and sectarian. The middle class have the option of leaving the cities and sending their children to the better performing suburban schools or enrolling their children in the lowest-cost inner-city private schools, most of which are religious.. Until Zelman, lower income groups were the only population without the choice of suburban and urban public schools and urban religious and nonreligious private schools.  Zelman extends more options to an excluded group.

 

Why the Hulabaloo?         

 

So, if so much of the Zelman decision represents merely extensions of existing practice, why the dramatic reactions by both champions and opponents of vouchers? It is certainly possible that the degree of change is believed by both sides to be sufficient to result in a change in kind. Certainly, there is fear of this on the part of the critics and a hope for the same by the advocates. But there is something more too.

           

Vouchers represent one of the most heated and divisive issues in education reform today. The Supreme Court decided this case by a 5 to 4 vote with one majority opinion, 2 concurrences, and 3 dissents. It is an issue that divides Democrats from Republicans, conservatives from liberals, and unions from for-profit educators. The rhetoric is white hot and rooted in competing orthodoxies. The positions are fixed and immutable. There is no middle ground and no room for compromise.

 

On one side, we have the voucher opponents who believe public education is essential for preserving a democratic society, and who are committed to maintaining the public schools, increasing their funding, and resisting any erosion in public support. On the other side, we have the voucher advocates, who see public education as ineffective and inefficient and are committed to its undoing under the equally American banner of choice, competition, and ending monopolistic practices. Each side regularly trots out its own “unbiased” research, usually of the same voucher experiments, yet with diametrically different conclusions proving that vouchers either critically improve or diminish American education.

 

The problem is that this battle has little to do with reality. The facts support neither position. The impact of the Zelman decision is likely to be less than the opponents expect or the champions hope.

 

The Impact

 

How much change will the Zelman extensions actually produce? I argue that the impact of the decision depends to a large extent on the larger political and economic context of the next decade.

 

Low Impact


If the political and economic climate of the country and the design of existing voucher programs remain largely as they are, the impact is likely to be low for at least six reasons. 
  • At the moment, the size of voucher payments is too small to attract many private schools to participate, other than religious schools, particularly Catholic schools, which have far lower tuitions than their peers. The smallness of the vouchers will also serve to discourage the for-profit sector from creating new schools. Elite private schools have shown a reluctance to participate in voucher programs as well. So there are not enough private schools to expand the programs substantially, and suburban school districts have been unwilling to take part. For them, it has been the equivalent of busing redux. And on top of all this, there is a severe teacher shortage in the country, so it could be difficult to staff a significant number of new schools.
  • The size of the populations being educated under the existing voucher plans is tiny and not likely to grow given the current economic condition of the country For instance, it is unlikely that many states, at a time in which 40 are running budget deficits due to declining tax revenues with significant cuts coming in education, are willing to allocate many additional dollars to new voucher programs. The federal government has a similar problem, plus a huge tax cut and a war against terrorism to support.
  • The public has regularly voted against voucher programs in state referenda and public opinion polls show that the public continues to oppose them.
  • The poor, to whom vouchers have been targeted, are less likely to take advantage of vouchers than more affluent families.
  • Research on voucher programs, even by advocates, does not show substantial gain in student achievement.
  • Vouchers are going to raise major questions for states and their political leaders; some of these questions are going to be very difficult and costly -- financially and politically -- to answer.  For instance, constituents will want to know: What is the purpose of a voucher program -- to improve student performance, to provide choice and an alternative to public education, to improve public education, to promote social equity and fairness, or to offer a sound bite for the media and a life raft in the politics of education reform? How should the success of a program be judged? How should voucher programs be regulated -- to insure quality, to guarantee there is no teaching of hatred or advocacy of illegal behavior, or to measure student performance? How much should a voucher program cost, and where should the money come from? How long should it last? Who should receive vouchers? How should the politics, which are going to be hot and heavy, especially in powerful union states, be dealt with?

 

High Impact

 

However, there are some changes that could be made in the design of voucher programs or that could occur in the political climate of the country that would potentially increase the impact of the Zelman decision substantially. For example,

 
  • Increasing the size of voucher payments to the average cost of educating students in the public schools would likely stimulate the creation of new schools by the private sector. (Though it is yet to be demonstrated that a for-profit company can make a profit at that rate. So, it is uncertain such schools could be sustained beyond an initial entrepreneurial burst.) It might also cause cash-strapped suburban school districts close to the inner cities to rethink their reluctance to participate, particularly if they could find a way to franchise their schools.
  • Government could choose to increase the numbers of students receiving vouchers substantially, close failing schools, and reallocate large numbers of public school dollars to voucher programs. This, of course, is dependent on the prior condition.
  • The religious right has been very effective in raising large sums of money. It might be possible in particular locations – e.g., targeted urban or rural areas – to create a critical mass of schools to shift the public/private school balance by establishing philanthropically subsidized, low-tuition schools.
  • The minority community could organize an advocacy campaign around the issue of vouchers. This is a group that has enormous voting power and has yet to fully exercise it. If urban blacks and Latinos had the capacity to swing Democratic or Republican, and vouchers was a litmus paper issue, this would put the topic front and center on the local, state, and national agenda.
  • The Supreme Court could extend Zelman even further, especially as the Court grows more conservative with the departure of older, more liberal justices such as Stevens or a swing justice such as O’Connor.

 

The New, New Thing

 

If I were forced to lay down a bet, I would put my money on the low impact scenario for three reasons. First, it is unlikely that there are enough inner city private schools to support broad-scale urban voucher programs, though there may be the occasional exception. For instance, the federal government may elect to make Washington D.C. a laboratory, putting together government and philanthropic dollars for a major voucher experiment. To this extent, vouchers are likely to have the same kind of impact on the American educational system as charter schools, which are somewhat random in who they enroll, variable in quality, and do not provide a comprehensive alternative to failing public schools. Second, the politics and cost of vouchers are likely to be too high for broad-scale adoption. Third, the results in terms of improvements in student performance owing to vouchers, particularly given the limited stock of private schools willing to participate, are likely to prove inadequate to justify the large investments they will entail.

 

It should be only a matter of time until the nation begins to search anew for the next best mechanism to insure that all of our children receive a quality education. We live in an age in which an education is a requirement for success. To send a child to a poor school is to deny him or her a future.  When such choices are based solely on a parent’s income, it is a sin. It is only a matter of time until we come to view an adequate education as a civil right. A court decision recognizing this would be the equivalent of the Brown ruling, declaring separate and unequal education for children of color in our inner cities and rural areas unconstitutional.

 

The next mechanism that promises comprehensiveness if enforced is for states to create the equivalent of an educational bill of rights, which guarantees all of our children such basic minima as a qualified teacher, appropriate learning materials, adequate facilities, a safe environment, and a record of academic achievement and school completion by the students attending a particular school. It would be the state’s responsibility to insure that these conditions were met. If the local schools were incapable of meeting these guarantees, it would be the state’s responsibility to create, locate, or provide the funding for children to attend schools where they could be met. This represents no more than an extension of federal practices mandated for disabled students to disadvantaged students attending inadequate schools. But this extension would be a difference in kind, rather than degree.

 


Cite This Article as: Teachers College Record, Date Published: July 08, 2002
https://www.tcrecord.org ID Number: 10960, Date Accessed: 10/26/2021 5:25:58 PM

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