The Supreme Court’s June decision in the Cleveland school voucher case (Zelman v. Simmons-Harris) was a clean, surgical strike at the legal pieties that for years have held poor inner-city kids hostage to the incompetence of the public school establishment. The nation owes Chief Justice William H. Rehnquist and his concurring colleagues a debt of gratitude for clearing away much of the First Amendment underbrush that, until now, has obstructed the most promising educational reform in living memory.
For the time being at least, carefully designed voucher experiments can proceed without fear that the Establishment Clause will strangle them in their infancy. One has to say for the time being because conservative Supreme Court rulings in our era are anything but stable, as witness the slim 5-4 majority in Zelman. Retirement rumors are constant companions of the chief justice and of Justice Sandra Day O’Connor. If either steps down, a huge question mark may once again hover over school choice. It wouldn’t take five minutes for the dissenting Zelman justices to twist some real or alleged fact in a subsequent case and to re-erect on that jerry-built foundation their ritualistic strict separationist nostrums.
As if to underscore the point, only a few days before Zelman came down, a Ninth Circuit Court of Appeals panel ruled that mention of God in our Pledge of Allegiance constituted an establishment of religion. Judge Alfred Goodwin’s opinion received its deserved share of ridicule, but in fairness, he only applied standard-issue Establishment Clause shibboleths of the sort routinely indulged by Supreme Court opinions since the 1950s. In fact, Goodwin’s secularist assumptions about the First Amendment are the same assumptions that animated the dissenters in the voucher case.
In their Zelman dissents, Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer raised the canard of sectarian warfare. Stevens went so far as to suggest that school choice would invite religious strife akin to that found in northern Ireland, the Balkans, and the Middle East. This, mind you, in a case involving a few thousand schoolchildren in Cleveland. As the chief justice wryly remarked in a responsive footnote, the only evidence of divisiveness or strife he could discern was the litigation before him.
Having lost for the moment in federal courts, where will voucher opponents now turn? To state courts and legislatures, where teachers’ unions and their epigones will argue that what passes muster under the First Amendment nevertheless offends state constitutional strictures. Chief among these are the so-called Blaine amendments (named after a famous 19th-century politician who tried, but failed, to amend the U.S. Constitution to hamper the growth of Catholic education). These provisions go well beyond prohibitions thought to be embodied in the federal Establishment Clause. Despite the fact that their origins are thoroughly stained with anti-Catholic bigotry, such laws are still carried on the books of 37 states. The next round of significant litigation will almost certainly involve one or more of these despicable relics of 19th-century nativist prejudice.
The education establishment will also open a second front, arguing, speciously, that taxpayers will have no control over voucher funds that find their way to religious schools. Stand by for a lot of self-serving propaganda about “accountability” from the public school lobby. The argument is laughable on its face, not least because our nation’s public schools are among the least accountable institutions in the country. But let that pass. The real strategy is more sinister: (a) to strangle voucher schools in regulatory and bureaucratic red tape, thereby raising costs, stifling creativity, and, to the extent possible, making them indistinguishable from their public counterparts; and (b) to ensnare voucher schools in a separate First Amendment trap by inviting undue entanglement between government and religious institutions.
You can expect to hear much more on all this in the days ahead as the ideologically compliant news media echo the mantras voiced by voucher opponents. In short, the legal and political battle hasn’t ended; it has only just begun. In the meantime, inner-city schoolchildren in places like Cleveland and Milwaukee will enjoy their first taste of genuine educational opportunity. That is no small accomplishment.