The following appeared in the Spring 2002 edition of the Cascade Update.

School choice meets constitutional standards

By Robert Freedman, J.D.

On February 20 the U.S. Supreme Court heard arguments in the Cleveland school choice case to decide the constitutionality of programs that enable low-income parents to send their children to the school of their choice, even if it is religious. Such an idea is not new in our system.

College students use Pell Grants, federal student loans, and the G.I. Bill to attend the colleges of their choice, including religious schools. Other programs allow taxpayers to take a deduction or tax credit for their donations to charities, including religious ones.

In legal terms these programs are constitutional for three reasons: first, these laws were enacted for a secular purpose; second, the class of beneficiaries, such as college students or people who want to donate money to charities, is defined by religiously neutral criteria; and, third, if any aid is directed to religious groups it is because of the independent choices of individuals. The Cleveland program meets all of these criteria.

The Court traditionally has begun its constitutional analysis of a program by looking at its purpose. Here, the purpose is abundantly clear: to repair one of the worst districts in the country.

In 1995 the Cleveland school district essentially collapsed. It couldn’t account for a $40 million advance from the state. Fewer than 1 in 14 students who entered Cleveland schools in kindergarten graduated on time and at grade level. Of those who made it to 9th grade, only 28 percent graduated from high school in four years—the worst rate in the nation.

As early as 1994, in an ongoing lawsuit concerning discrimination in the district, a federal court urged both the school district and the State of Ohio to implement “innovative programs” to remedy the terrible situation in the district. The court described the district as being in a state of “total collapse” and noted the children of Cleveland were in a “catastrophic predicament.” In this context the federal court transferred control of the district to the State of Ohio. Once the state received control of the district it enacted the Cleveland Scholarship and Tutoring Program.

The program provides funding for low-income families in the Cleveland school district to send their children to any participating private school in the district, to attend a suburban public school in a district adjacent to Cleveland, or, finally, to use the funding to pay for extra tutoring if the parents choose to have their child remain in a Cleveland public school.

Regretfully, none of the surrounding suburban schools have chosen to participate in the program, belying the assertion that our public schools make the education of our children their top priority. This boycott, not surprisingly, has caused the percentage of students who enroll in religious schools through the program to seem unreasonably high, one of the principle points opponents raise when objecting to the scholarship program.

When the Court examines other factors, such as who participates in the program, it will find that 78 percent of the participants are from low-income single parent homes. It will find that students use the scholarships to attend a wide variety of schools, from those with no religious affiliation to schools affiliated with a diversity of faiths. The Court also will find that not a single dollar reaches a religiously affiliated school unless parents choose to send their child to such a school. As one federal court put it, “government funding of education does not single out religious entities for a benefit.” It simply allows students to get an education.

Our current system of forcing lower income families to stay in poor performing schools is unconscionable. It is time that we give parents and children the power to get an education of their choice.

Robert Freedman, J.D., is an attorney with the Washington, D.C.-based Institute for Justice, which has defended the Cleveland program in court.