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June 28, 2002, 12:05 p.m. This One’s for the Children The Zelman ruling. By R. Ted Cruz

orty-eight years ago, in Brown v. Board of Education, a unanimous Supreme Court broke down the door of the schoolhouse for all children, insisting that race could no longer bar a child from a full and fair chance at a decent education. Yesterday, in Zelman v. Simmons-Harris, the Supreme Court again spoke decisively, standing up for the rights of minority children to escape failing schools and to choose their own destiny.

The Court's decision is a victory for the children. It is a victory for the public schools. And it is a victory for justice.

To appreciate the scope of the civil-rights victory, one must first appreciate the extent of the problem. Many, in fact most, public schools are strong institutions, where dedicated teachers work hard to educate our children. Unfortunately, far too many of those excellent public schools are suburban schools teaching the largely white children of middle- and upper-class families. For those students and their parents, the problem is not immediate.

But for many minority children, in the inner cities of America, the reality is far different. According to the National Assessment of Education Progress, 63 percent of black and 56 percent of Hispanic fourth graders are below basic proficiency levels in reading. Dropout rates are higher, reading rates are lower, and crime rates are staggering.

In the Cleveland public schools, the problem had reached a crisis level. In recent years, only one in ten ninth graders in Cleveland could pass a basic proficiency test, and less than a third of those students could be expected to graduate. Students in Cleveland were statistically more likely to fall victim to a crime at school than to actually graduate on time with 12th-grade-level proficiency.

Unsurprisingly, given those prospects, Cleveland students in failing schools wanted out, and their parents wanted them out. All parents want opportunity for their children, and Cleveland parents realized that there is little hope without education.

Nationwide, poll after poll has shown that African-American and Hispanic parents want school choice. In 1999, one program, the Children's Scholarship Program, offered 40,000 scholarships to help low-income kids escape failing schools: the families of over 1.25 million children applied for the scholarships.

Upon serious examination, there can be no dispute that (1) there is an enormous and tragic problem for many lower-income minority children who right now have little hope for a quality education and (2) those children and their parents desperately want out, want a real chance at the American dream.

Two principal obstacles have, to date, prevented those children from exercising meaningful choice. First, the concerns of many well-meaning critics that school choice programs might seriously harm the public schools have dampened suburban and electoral enthusiasm for school choice. And second, many policymakers have been constrained by litigation and uncertainty that school-choice programs that included religious schools survived constitutional scrutiny.

Fortunately, both concerns are fading away. As for the former, as more and more empirical scholarship examines the actual effect of school choice programs, it is becoming abundantly clear that the concerns of the critics are just wrong. Many careful scholars, from impartial and credible institutions like Harvard and Princeton and Brookings, have examined the data, and not a single study has found any evidence of harm to public schools.

In fact, there is substantial evidence that school choice benefits public schools, as they respond to the presence of competition by performing better to keep the students that remain. Just this month, two economists, Drs. Jerry Ellig and Kenneth Kelly, released a comprehensive study in the Texas Review of Law & Politics compiling the substantial data demonstrating that school choice — does not destroy — but in fact improves education in public schools.

And, the second concern, that of constitutional doubt, was largely put to rest by the Supreme Court yesterday. On the merits, the constitutional criticism was never very sound. For decades, federal scholarships have been allowed in post-secondary schools, through Pell Grants and the G.I. Bill and other programs. Those government funds have long been able to be used at religious colleges and universities, from Notre Dame to the Southern Baptist Theological Seminary.

Yesterday, the Supreme Court made clear that younger students do not face different constitutional rules. Instead, the critical concern, in the elementary, secondary, and post-secondary context, is whether the program is neutral, and whether the choice is made by the student and his or her parents. If a government voucher were to favor one religious school over another, or to favor religious over nonreligious schools, that would raise serious constitutional problems.

But, if the government provides a scholarship to wherever the student chooses, and some students happen to choose religious schools, there is no constitutional problem. As the Supreme Court held, "neutral educational assistance programs that . . . offer aid directly to a broad class of individual recipients defined without regard to religion" do not violate the Constitution.

That clear holding eliminates the second major barrier to school choice. Now, as in the time of Brown, there is a grave problem, a desire for change, and a bold decision by the Supreme Court removing legal doubt. Now, as in the time after Brown, it is up to concerned parents and citizens in each of the 50 states, to have the courage to continue the effort and move the civil-rights march forward.

— R. Ted Cruz is the director of the Office of Policy Planning at the Federal Trade Commission, and a former law clerk to Chief Justice William H. Rehnquist. His views are his own, and not necessarily those of the commission or any individual commissioner.