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Yesterday's Zelman v. Simmons-Harris decision is a crowning achievement for the school-choice movement, and cause for conservative celebration. Among the think-tank set, school choice has been a cornerstone of conservative education policy for more than a decade. It has not met with much popular success so far — ballot initiatives in California, Michigan, and elsewhere have lost by big margins — but the legal conditions for this to change are now firmly in place. Supporters of Zelman were quick to compare it to 1954's Brown v. Board of Education, which wiped out a legal regime of racial segregation in public schools, especially in the South. There is, of course, an important difference between the two: Brown required state and local governments to quit something they were doing; Zelman permits state and local governments to start something they aren't doing. The Brown comparison will be apt only if Zelman now inspires lawmakers around the country to approve school-choice programs — something they've been reluctant to do in the past, in part because the Supreme Court had not ruled on the matter. Many Republicans have been jittery about school choice, sensing that their suburban constituents don't much care for it because they've effectively exercised school choice in deciding where to live. When conservatives have pressed them to support school choice, they've been able to say, quite plausibly, that there's no sense in wasting precious political capital on something the Supreme Court might strip away within a few years. At the very least, Zelman neutralizes the argument for doing nothing. The political case for not backing school choice has lost a vital plank. Zelman accomplishes much more than this, too. Because Justice Sandra Day O'Connor embraced the majority opinion fully — she was viewed as a swing vote, and perhaps interested in blunting a sweeping decision — Zelman lays out a few firm precedents. Most important may be the term "true private choice," appearing in the majority opinion written by Chief Justice Rehnquist. It provides a clear roadmap for policymakers interested in creating school-choice programs and answers a few thorny questions, such as whether there can be a school-choice program in which too many kids opt for religious schools over secular ones. The answer is no: In Cleveland's school-choice program, which spawned the Zelman case, 96 percent of the participating children attend religious schools. Rehnquist said this rate is not too high, and in fact is irrelevant as long as parents and kids have other options available. The enemies of school choice surely won't back down. They may have to play a bit more defense than they have in the past, but they'll also stay on offense. In Milwaukee, which is home to the country's original and most vigorous school-choice program, the anti-voucher forces play hardball every year during state budget negotiations. If a couple of political races go the wrong way in Wisconsin — and this November may see the election of a hostile governor — school choice's Ur-program could be squelched. The good news for school choice — in addition to Zelman clearing the legal fog — is that a growing body of empirical data supports the longstanding conservative contention that vouchers will improve school performance. The Education Gap, a new book by William G. Howell and Paul Peterson, makes this case effectively; for a summary of its findings may be read here. Another good resource is Jay P. Greene of the Manhattan Institute, whose scholarship was cited four times in the Zelman decision; an index of his work may be found here. This accomplishment was made possible by pioneering education reformers in Milwaukee and Cleveland, plus a network of private philanthropists who have created what amounts to privately funded school-choice programs in a handful of cities. A final thought: Although Zelman displeases the anti-school-choice forces, it also hands them a potentially effective argument they haven't used before. Zelman lowers the wall separating church and state — which means it also lowers the wall separating mosque and state. A potential problem for school choice is that will enable quirky subgroups to establish quirky schools. For years, Afrocentrism was seen as a possible threat, though it must be said that nobody has yet founded a Leonard Jeffries School for Sun People in either Cleveland or Milwaukee. But what about jihad schools? Could radical Muslims, at some point in the future, exploit school-choice programs? The answer is probably not, though don't be surprised if school choice's foes start talking about how public schools are an essential feature of American unity. They'll drape themselves in flags, and say it's vital for poor kids to keep on attending lousy public schools, where they aren't supposed to recite that divisive Pledge of Allegiance. |
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day after federal judges declared the words "under God" in the
Pledge of Allegiance to be unconstitutional, the Supreme Court has ruled
that children can may receive publicly supported educational instruction
in classrooms with crucifixes on the wall, so long as school vouchers
are the funding mechanism. 
