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are undoubtedly familiar with the events by now: With the operation
teetering on the brink of collapse, insiders continued to profit,
seeking additional investment to prop up the floundering behemoth.
The rank-and-file — most of whom did not have viable exit options
— saw their futures sacrificed in exchange for false promises.
When the bottom finally did fall out, legislative and legal action
predictably followed. The failure of an energy giant? No, the Cleveland
school-choice case argued before the United States Supreme Court
today — a case which has far more in common with recent corporate
misfortunes than you might think.
The Cleveland
school-choice case arose in 1995, when the Ohio legislature began
offering partial tuition vouchers in response to a federal court
order requiring the state to take control of the school district.
The situation in Cleveland public schools leading up to the court
order was dire: Despite spending significantly more per student,
Cleveland public schools had a dropout rate that was twice the state
average. Those who did stay in school had little to show for it:
Only 9 percent of ninth graders passed proficiency exams, and only
7 percent graduated and passed the 12th-grade proficiency exam.
Perhaps most troubling is the fact that students were statistically
more likely to fall victim to crime at school than of actually graduating
on time with 12th-grade-level proficiency. Given these conditions,
the Ohio legislature passed the Pilot Program, providing tuition
assistance to low-income parents which could be used at participating
private religious and nonreligious schools.
The response
to the Pilot Program was phenomenal. In its first year, more than
6,400 parents applied for 1,700 vouchers. New schools — religious
and non-religious alike — were formed to participate in the
program, and philanthropists such as the Wal-Mart Foundation contributed
half-a-million dollars to support these new ventures. Opponents
warned that the schools would skim off the best students, but many
of the schools opened their doors to all, taking in the poorest
and most educationally disadvantaged students in the district. Even
with these open-door policies, studies by Jay P. Greene and his
colleagues at Harvard's Program on Education Policy and Governance
found that these schools had improved student test scores, greater
parental satisfaction, and higher levels of racial integration than
their public-school counterparts.
Parents were
happy, students were learning, and the schools were better integrated
— it was only a matter of time before someone brought a lawsuit.
Indeed, no sooner was the ink dry on the legislation than a collection
of special interests led by the teachers' unions sued challenging
the program as a violation of the Establishment Clause of the Constitution.
Unions claim
that public funds spent for religious schools violate the separation
of church and state. In reality, however, union opposition to religious
schools is less about nuanced and unsettled legal questions, and
more about settled law that exempts church-run schools from the
statutory requirements of collective bargaining. To put it more
plainly, union opposition to school choice is aimed at reducing
competition, not protecting the Constitution.
For example,
in 1996 the Jersey City Teacher's Association threatened a boycott
of Pepsi products because the company offered scholarships for low-income
students to attend private schools. There was no constitutional
question here — Pepsi is not the "state" and can
support religion all it wants without raising constitutional questions
— but the union still fought tooth-and-nail to defeat the philanthropy
and to protect their monopoly at the expense of the students. Another
common theory used to explain union opposition is that choice schools
are not "common schools," or are somehow inferior to public
schools. Again, this does not appear to accurately reflect the motivations
of the unions: in a State of the Union address prior to his death,
former American Federation of Teachers President Al Shanker stated
that charter schools could indeed get union blessing, so long as
they were open to unionization. Unlike the sometimes-murky tests
used by the courts, the unions' test is perfectly clear: If the
choice schools add to union coffers, they are permissible; but if
choice schools add competition to the union, they should be forbidden.
While there
is certainly no prohibition against profiting from constitutional
claims, the position of the unions is unabashedly self-serving and
contrary to the public interest. To better illustrate this point,
imagine that Arthur Andersen brings a complex constitutional challenge
to legislation aimed at cleaning up accounting laws in the wake
of Enron bankruptcy, claiming all the while that they are acting
in the public interest. Undoubtedly, the public would be skeptical.
If, however, Andersen claimed that the legislation would be unlawful
because it would permit more efficient firms to provide better service
at a cheaper price for consumers, then skepticism would turn to
outrage. Yet this is precisely what is happening in the school-choice
case. The lower court accepted the theory that the Pilot Program
was impermissible because the religious schools operate more cheaply
and therefore are more capable of participating in the program under
the restrictive budget caps. Thus, the program was undone because
the private schools did not suffer from the high, unionized public-school
costs.
Thankfully,
the question for Establishment Clause purposes is not whether religious
schools are too competitive or too successful, but whether the government
program is neutral regarding religion, and whether the government
funds are used for religious education as the result of the parental
choice. This test applies even when the schools in question teach
religion as part of their curricula, for the Supreme Court has previously
upheld the use of government funds to train pastors and missionaries,
where the decision to spend the money at the seminary is the recipient's
and not the government's. Applying this test, the Pilot Program
is clearly neutral: Religious and non-religious schools can and
do participate. Furthermore, parents have genuine choice: Not a
single parent who sought to send their child to a non-religious
private school in the program was turned away.
The sole counterargument
offered is that the level of religious-school participation and
the number of students at religious schools is too high to represent
individual choice. This assertion contains a none-too-subtle hostility
to religion, but is weak on facts. This claim assumes without foundation
that parents on average will not choose religious schools if they
have other options. There is simply no empirical basis for this
claim (indeed the actual results in Cleveland suggest otherwise)
and the constitutionality of the Pilot Program should not rest on
such assumptions.
After years
of suffering in failing school system, low-income parents finally
have a choice which provides their children genuine educational
opportunity. For the unions, however, the solution to public-school
failure is the same as the one offered by Enron executives before
the crash: Trust us, invest more money in the failing system, and
don't worry about the little people who can't get out. We shouldn't
have trusted Enron, and we shouldn't trust the unions either.
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