School Choice, Not an Echo: After the Supreme Court's decision, the future of the movement

For more than a dozen years, Clint Bolick of the Institute for Justice had dreamed of the day the Supreme Court would hand down a blockbuster verdict on school choice. He'd been litigating the issue for that long, and on the morning of June 27, when the Court was scheduled to rule in Zelman v. Simmons-Harris, Bolick found himself in the shower trying to memorize a short speech -- acknowledging defeat.

"I just wanted to be prepared," he says. As it turned out, Bolick didn't need the concession speech: In a 5-4 decision, the Court delivered a broad ruling, written by Chief Justice William Rehnquist, saying that school choice is constitutional.

Within a few days, President Bush was pronouncing Zelman "a great victory" and calling it "just as historic" as the Brown v. Board of Education ruling, which ordered an end to school segregation in 1954. "The Court," remarked Bush, "declared that our nation will not accept one education system for those who can afford to send their children to a school of their choice and [another] for those who can't."

Actually, the Supreme Court said no such thing. Zelman does not present a mandate; it merely permits school choice to exist as an option. In another sense, it's a stay of execution. It was the opponents of school choice who brought the case -- against a program that gives vouchers to about 4,500 poor kids in Cleveland -- but the stakes weren't as high for them as they were for school-choice supporters. Zelman surely invigorates the movement, but at bottom it simply lets the debate go on.

Contrary to the president's claim, the nation will, in fact, accept two systems of education. We've been doing it for a long time. There are about 54 million school-age children in the U.S., and only about 20,000 of them participate in a genuine school-choice program -- roughly one out of every 2,700 kids. There would have been more, but for school choice's miserable political performance. Ballot initiatives were crushed in California and Michigan in 2000. The National School Boards Association reports that 28 state legislatures have considered school choice over the last two years; nowhere did it become law. If the future has never looked brighter for school choice, it may be because its prospects recently have been so dim.

Zelman creates the conditions for positive change. The decision removes an important obstacle that has bedeviled school choice for years -- the claim that education vouchers used at parochial schools violate the First Amendment. The Court now says they don't. Yet plenty of legal hurdles remain, as well as even tougher political ones.

One of the most important remaining opponents of school choice is a former Republican presidential nominee: James G. Blaine, who was the GOP nominee in 1884. (Grover Cleveland beat him.) Blaine's campaign is best remembered for a supporter's colorful putdown of the Democratic party -- "whose antecedents have been rum, Romanism, and rebellion."

Back in those days, there was a big constituency for anti-Catholic politics, and Blaine tried hard to exploit it. Catholics were beginning to seek state aid for their schools, and Blaine wanted to make sure they didn't get it. He introduced a constitutional amendment prohibiting aid to explicitly religious schools. It won the necessary supermajority in the House before falling just short in the Senate. Because it commanded a majority in Congress, however, lawmakers were able to impose their will on states seeking admission to the Union, including southern states seeking re-admission: Their constitutions were made to include "Blaine amendments," and today about three dozen states have them.

"They're the next big legal problem for school choice," says Bolick. Zelman may allow school choice, but these relics of anti-Catholicism -- whose prohibitions also apply to non-Catholic religious schools -- will continue to muck things up until they, too, are defeated in court. This probably will happen in many of the places where challenges are brought -- the Arizona supreme court recently defanged the state's Blaine amendment, calling it "a clear manifestation of . . . bigotry." But total victory, or anything approaching it, will take a long time and cost a lot of money.

A top political priority for school-choice supporters must be to protect the gains they've already made. In Ohio, there's hope that the Cleveland program will expand in size and perhaps spread to other cities. But in Milwaukee, whose program is the oldest and largest, school choice is under constant pressure. The Wisconsin government currently faces a $1.1 billion budget deficit, and Democrats proposed to make ends meet, in part, by hacking $24 million from school choice. They abandoned this position late in June, but may pursue it more aggressively next year if a member of their party wins the governorship in November -- a very real possibility.

Protecting gains, of course, won't be enough. "The Zelman decision lets us move from defense to offense," says Robert Enlow of the Friedman Foundation. That will require more cooperation within school choice's uncertain constituency of conservatives and the urban poor. The suburban voters who elect conservatives aren't keen on school choice -- they've already exercised a form of it in picking where to live, see their property values tied to school-district boundaries, and remain basically satisfied with their public schools. The urban poor are stuck in a limbo where they tend to support school choice, but their political leaders don't.