JUDGES AND SCHOOLS
JUDGES AND SCHOOLS In 1995, the Ohio legislature enacted its Pilot Project Scholarship Program for disadvantaged elementary school students in Cleveland. Under PPSP low-income families became...
...Not to worry—we have saved the best for last—says union president Sandra Feldman of the American Federation of Teachers, whose Cleveland affiliate has led the drive against PPSP since 1995...
...voucher-funded private schools, very, very bad...
...The system's tax base dried up...
...Some future Supreme Court is another question altogether...
...The executive branch these candidates hope to lead is not the federal government's most powerful weapon with respect to our schools...
...The nearly 40 percent of Cleveland public school teachers who quietly send their kids to private schools would appear to disagree, but never mind...
...This is a city, in short, with the worst major public school system in Ohio—and arguably the entire country...
...Public schools, good...
...The mind reels...
...Oliver further noted that a heavy majority of private schools registered for PPSP—representing a similar majority of its voucher recipients—were sponsored by sectarian institutions...
...Where such indirect aid to religious education is concerned, so long as a law remains neutral as between sectarian and non-sectarian institutions, it is perfectly okay...
...Public school enrollment dropped by 50 percent...
...And the Court has never again since Nyquist ruled unconstitutional a government program that provides education-related assistance to a general class of private citizens, some of whom might independently choose to use or spend that assistance at a religiously affiliated school...
...But in a long line of subsequent cases, as the Supreme Court made plain in 1997, "we have departed from the rule . . . that all government aid that directly aids the educational function of religious schools is invalid...
...And these are the schools in which 3,200 temporary voucher escapees must absolutely and immediately be reincarcerated...
...In 1976, the district court found Cleveland liable for maintaining a deliberately segregated school system...
...The Cleveland schools have recently begun to emerge from legal receivership...
...In the aftermath of Judge Oliver's Cleveland ruling, most Republican presidential candidates have reaffirmed their support for vouchers in principle...
...According to the Constitution, as it is interpreted by Judge Solomon Oliver Jr...
...In 1978, citing more than 200 specific Fourteenth Amendment violations, the court crafted the most sweeping desegregation order ever imposed on a single American school district...
...If the Cleveland vouchers come before the current Supreme Court, they will very likely be upheld...
...Ohio's PPSP voucher does better than satisfy this requirement...
...But only for a single semester more...
...Which suggests something important about the status of private school vouchers in the nation's general political debate...
...The idea appears worthy...
...So taking seriously his obligation to appoint the right ones, and explaining that commitment to the country ahead of time, may be the most valuable education reform initiative any would-be president can offer...
...It fails to meet any of the 18 academic proficiency standards established by the Ohio General Assembly...
...It reels, on the level of theory, at the crude First Amendment jurisprudence of Solomon Oliver Jr...
...She, too, thinks vouchers are "bad law...
...As the experience of Cleveland over 30 years makes clear, the federal government's most powerful school-related weapon is the judicial branch...
...Eligible families who decide to remain in Cleveland's public system receive a $500 cash "tutorial" grant...
...Families who decide to take a private voucher get no cash at all and must come up with at least 10 percent of their new school's tuition...
...The judge has scheduled an expedited trial in the case for December...
...By this past spring, at the end of the program's third full year, it was helping send 3,674 students—by far the largest number of them African-American and most from families living at or below the official poverty line—to upwards of 50 local private schools...
...Nearly 600 students who would have been new to the program this fall will still lose their state grants forthwith...
...As a matter of law, they are all quite wrong...
...and his admirers, which reflects nothing so much as reactionary paranoia about anything remotely involving religion...
...Not to worry, blithely announces the New York Times, whose editorial page staffers steadfastly defend urban public education and would surely never dream of sending their own boys and girls to one of those elitist Manhattan private schools...
...On August 24, several days after at least two participating private schools had already begun classes, federal district judge Solomon Oliver Jr...
...Judge Oliver is right, the paper of record concludes: Public vouchers redeemable at private religious schools are always obnoxious to the Constitution, and it is long past time for someone to say so explicitly...
...Using this test in a 1973 case, Committee for Public Education v. Nyquist, the Court struck down a New York State program that reimbursed low-income parents for a portion of their children's private school tuition—since most of the money was being used to subsidize parochial education...
...There is no substantial possibility," Oliver warns the Ohio state government and Cleveland's neediest schoolchildren, that his court "will ultimately conclude in their favor...
...Until a few weeks ago, its vouchers were expected to defray 1999-2000 tuition expenses for more than 3,800 of Cleveland's poorest schoolchildren...
...And she pretends to think they also produce "bad education" relative to the public schools where her members work...
...The public schools are used to welcoming all children...
...And by all accounts, this busing mandate, more than any other single factor, prompted roughly 100,000 households—most of them white—to flee Cleveland over the next 20 years...
...Judges—individual judges very often—can ruin or rescue tens of thousands of schoolchildren with a stroke of the pen...
...But the mind reels first at the ice-cold, real-world cruelty of such anti-voucher dogma...
...Any full understanding of which cruelty must be informed, oddly enough, by a quarter-century-long Fourteenth Amendment case overseen by Oliver's colleagues and predecessors on the U.S...
...issued a sweeping injunction against the program...
...To minimize "disruption," Oliver will allow roughly 3,200 other students, enrolled in PPSP last year, to continue their voucher-funded private educations...
...Under PPSP low-income families became eligible for state grants covering up to 90 percent of tuition costs at any Cleveland private school or nearby suburban public school prepared to accept their sons and daughters...
...District Court for the Northern District of Ohio...
...Among the state's eight largest school districts, Cleveland has the lowest sixth-, ninth-, and twelfth-grade test scores in every measured subject...
...David Tell, for the Editors...
...So by 1995, the Cleveland municipal school district was in "total fiscal and administrative collapse," and the district court was forced to transfer local authority to the state of Ohio...
...But in every other respect, they remain a disaster...
...Of more than 600 public school districts statewide, Cleveland has the poorest attendance rate...
...Three days later, confronted by shocked and weeping PPSP parents and bitterly condemned throughout the city (the Cleveland Plain Dealer called Oliver a "vulture"), the judge modified his order...
...Modern Supreme Court doctrine on the First Amendment's "establishment clause" continues to rest on the 1971 case of Lemon v. Kurtzman: No federal or state law, even one with a clearly secular purpose, may have a "principal or primary effect" that "advances" religion...
...Presidents do appoint those individual judges, however...
...Thus, he reasoned, the legislature's pilot project "has the primary effect of advancing religion" and must immediately be halted pending a formal trial on First Amendment issues...
...And with all due respect to Sandra Feldman, anyone who claims they aren't bet-ter—and that the primary purpose and effect of PPSP, instead, is to "advance religion"—is a liar...
...It has the highest dropout rate...
...And Democratic presidential candidates Al Gore and Bill Bradley...
...Not to worry, join in the White House and education secretary Richard Riley...
...But we say the current Supreme Court, which would probably provide a bare, five-vote majority for Cleveland's vouchers, advisedly...
...And PPSP continued to grow...
...Presidents can tinker with the Education Department...
...The order included mandatory, city-wide busing...
...The case in question is Reed v. Rhodes, filed against the city of Cleveland by the NAACP in 1973...
...In other words, the only real incentive low-income Cleve-landers have to choose parochial schools—an incentive that is constitutionally irrelevant—is the fact that the parochial schools are better...
...It financially disfavors private schools, religious or otherwise...
...And he has left little doubt what his permanent ruling then will be...
...Which means that—unless an appeals court intervenes or private money can be found to sustain PPSP's current beneficiaries—come January, if not before, several thousand underprivileged students will be yanked out of their chosen private schools and returned to the inner-city public schools whence they came...
...But Governor Bush and other education-reform-minded presidential hopefuls would do well to remember the truly salient lesson of Ohio's PPSP experiment...
...It is true that Nyquist has never been formally overruled...
...But now things will not work out so happily...
...and his various cheerleaders...
...They will greet them with open arms...
...The justices have determined that it does not matter if a majority of those citizens then do so choose (as now in Cleveland, where more than half of all PPSP students are enrolled in schools run by the Catholic diocese...
...Oliver noted that the Constitution commands Congress and the states to "make no law respecting an establishment of religion...
...Front-runner George W. Bush of Texas last week announced a plan to condition federal aid to low-income students on their schools' academic performance—and to voucherize that aid in the event those schools fail to match up...
...And the National Education Association, and the ACLU, and People for the American Way, and Americans United for Separation of Church and State...
...Something wonderful is gonna happen, Feldman cheerfully predicts, when those 3,200 remaining PPSP kindergarten through sixth-graders get their private school lifelines cut for good...
Vol. 4 • September 1999 • No. 48
