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Show A Case for the Constitutionality of School Choice Catherine Thomas-Hoskins nor federal Constitution by allowing tax dollars to be used to pay for private and religious education of the students in the area. Both proponents and opponents agree that the U. S. Supreme Court decisions over the years have dramatically affected the possibility of school choice, and that Court will ultimately decide the fate of the school-choice programs with its future decisions. After the decision of the U.S. Supreme Court regarding the MPCP was published, newspapers across the country had articles about the possible ramifications of the decision. In the Wall Street Journal Clint Bolick of the U. S. Department of Justice, who was one of the attorneys for the MPCP, is cited as arguing that this decision negates the possibility that the school choice program would be a constitutional violation, and was quoted directly as saying, '"In addition to winning an important legal battle over the nation's first choice program, this ruling diminishes the credibility of those who would argue that school choice poses possible constitutional problems"1 (1998, All). The same day Clint Bolick's comments were printed in the Wall Street Journal, an article in Washington Times, quoted Bob Chase of the National Education Association. '"We had hoped the Court would review this case. Every day, the voucher plan does more damage to the Milwaukee public schools and the city's taxpayers are paying the tab. This year alone, the Milwaukee public schools will lose $25 million in tax payer dollars to the coffers of private and religious schools'" (Asch 1998, Al). Mr. Chase, like many opponents of school choice, believes that if money is taken away from the public schools, the end result will be detrimental, even though the individual class sizes will be smaller and the total amount of dollars spent per individual student higher.1 The constitutional issues involved with school-choice programs have been discussed for close to a hundred years. The best way to trace the development of constitutional theory on school vouchers is by following the Supreme Court decisions that laid the groundwork for the Jackson v. Benson decision. The Constitutional Issues Surrounding School Choice Evolution of Cases Arguments over the constitutionality of school vouchers began with the decision in Pierce v. Society of Sisters (1925). In Pierce two schools challenged Oregon's law of compulsory public education for all students under the age of 16. In Pierce the Court held that under the Fourteenth Amendment's due process clause, parents had the constitutional right to choose whether their children attended a public, private non-sectarian, or religious school. Justice James C. McReynolds when offering the opinion for the Court agreed that the parents' rights were being violated. "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its chil- dren by forcing them to accept instruction from public teachers only" (Pierce v. Society of Sisters 1925, 535). In Pierce the Supreme Court re-affirmed the constitutionality of mandatory attendance until a certain age, and officially recognized parochial education as equal to that of a public education. This action is significant to school choice because it established the doctrine that on an educational level the schools are equal, and the only reason a parochial school should not receive government funding is due to the establishment clause. But while the Supreme Court subsequently made decisions regarding public reimbursement of private and parochial educational schools for the costs, it vacillated as to the constitutionality of such expenditures. The next significant case addressed the issue of public funds for secular and non-secular education in Cochran v. Louisiana State Board of Education (1930). In Cochran the state of Louisiana had passed a law that provided secular textbooks to all children regardless of their enrollment in public, private secular, or parochial schools. The majority of the population in the area was Catholic, and the majority of the private schools were also Catholic. The plaintiffs argued this law was a violation of the establishment clause, because any public funds given to a religious institution were promoting religion. The defendants in Cochran argued that the question of the violation was not as important an issue as the general child benefit, which the Supreme Court eventually upheld as part of its reason for decision. The child-benefit theory states that the purpose of the government program was to help all children, and the detriment to children attending religious schools without the public funds would be greater than the slight benefit that any particular religion would gain. The Court determined that "the appropriations were made for the specific purpose of purchasing school books for the use of the school children of the state, free of cost to them.... The schools, however, are not the beneficiaries of these appropriations.... The school children and the state alone are the beneficiaries" (Cochran v. Louisiana 1930, 374-75). The intent of the legislation was to help the general public and not to promote one religion over another. Therefore, one can draw from this that school vouchers can be constitutional if the intent of the government program is to promote the general welfare of the children, and not one denomination over another, and if it also has a secular purpose. After Cochran, the Supreme Court upheld (5-4) a sim- 1 "About $7.1 million went to the Milwaukee private school program in the 1996-97 school year, when 1,650 students participated and payments were about $4,400 per student. The union said the money should have been used in the public schools to reduce class size and implement a new learning program. This argument ignored the fact that the district received about $7,500 for each of the students and sent the private schools only $4,400-giving the district an extra $3,100 for each of the children it no longer had to educate. Thus the public schools had more money per remaining student." Dorman E. Cordell, Brief Analysis 264, April 29, 1998, National Center for Policy Analysis and CEO America. 74 |
