The Justice of School Choice

Rick Garnett

The politics of education reform are a mystery. Millionaire businessmen and conservative activists invoke civil-rights ideals to demand equality, freedom, and diversity in education — while liberals join union bosses and anti-religious activists in support of a government monopoly. Strange days indeed, when the NAACP's and ACLU's opponents are black schoolchildren singing "We Shall Overcome" on the courthouse steps.

Enter Joseph Viteritti, whose Choosing Equality is a compelling cry for meaningful school choice. Viteritti is an education expert who knows the data and has studied the studies, but Choosing Equality is not a numbers-crunching book. Indeed, its strength lies in the fact that it builds the case for school choice not so much on an economic-efficiency model but on the Constitution's promise of equality. That promise was most famously affirmed in 1954 when the Supreme Court declared in Brown v. Board of Education that no child "may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity . . . is a right that must be made available to all on equal terms."

Choosing Equality shows that making good on Brown's promise requires us to empower parents to choose the best education for their children. Viteritti begins with the simple observation that some Americans — those with enough money — already have school choice. But the education establishment's allegiance to the government's monopoly on public education "has consigned an entire segment of the population to schools that most middle-class parents would not allow their sons and daughters to attend." The self-interest of teachers' unions, the political calculations of their elected allies, faulty constitutional reasoning, and a misplaced suspicion of religious schools have trumped the educational needs and rights of poor children. "The most compelling argument for school choice in America," Viteritti insists, "remains an egalitarian one: Education is such an essential public good for living life in a free and prosperous society that all people deserve equal access to its benefits."

Just one year after Brown, the economist Milton Friedman suggested replacing the government's education monopoly with a universal government-funded voucher system. Friedman was ahead of his time, but in the years that followed, many thinkers took up the idea of vouchers. Free-market economists liked the competition, liberals liked the idea of saving poor children from bad schools, and cultural and religious minorities hoped to protect their values and traditions from state-imposed homogenization.

School choice failed to catch hold in politics, however, in large part because of the vehement opposition of the teachers' unions and the increasing identification of school choice with religious conservatives. As a result, many choice supporters lowered their sights to more modest reforms, such as intra-district public-school choice, "magnet" schools, privately managed public schools, and charter schools. As Choosing Equality shows, these compromises share the problem of "not enough choice, too much control." Even charter schools — which provide convenient political cover for politicians who are required by what William Bennett has called the education-establishment "Blob" to oppose real choice — have fallen short of reformers' hopes. What Viteritti calls "Potemkin bills that pretend to be serious reforms but lack the essential ingredients of strong laws" and disingenuous lawsuits have often succeeded in hamstringing charter schools with the same regulations that cripple the public schools. "Controlled choice" doesn't work, but, Viteritti insists, real choice can, if private and religious schools are included in parents' educational menu.

In emphasizing the importance of eschewing discrimination against religious schools, Viteritti follows John Chubb and Terry Moe, who proposed in 1990 a program through which public, private, and religious schools would compete for government money. Chubb and Moe transformed school choice from a topic for dusty policy journals to a national political issue, and by 1997 the "paradoxical politics of choice" were at center stage. A liberal president who "defined himself as a champion of the poor" killed a modest voucher proposal for poor children in the District of Columbia that the plan's intended beneficiaries — the District's low-income, predominantly black residents — overwhelmingly supported. As Viteritti observes, President Clinton's uncharacteristic fortitude in opposing choice "epitomized one of the great dilemmas of liberal Democratic politics: On the one hand, sympathetic to the plight of the disadvantaged, concerned with the tragic condition of public education in cities; on the other hand, deeply indebted to the education establishment and the powerful teachers' unions."

Even as the president was making the District of Columbia safe for monopoly, however, a number of local and private initiatives around the country were serving as "laboratories for experimentation with an idea whose time had finally come." In Atlanta, at a ceremony for the forty-thousand students awarded scholarships through Ted Forstmann and John Walton's Children's Scholarship Fund, former mayor Andrew Young declared, "In the words of the old Negro spiritual: Great Day!" In Milwaukee, Polly Williams, a black, single mother of four, joined hands with Howard Fuller, a community activist and unlikely superintendent of schools, to beat back the unions and, eventually, to enact a limited scholarship program for poor children. And in Cleveland, Fannie Lewis, the indefatigable councilwoman from Cleveland's low-income, primarily black, Hough neighborhood, allied with David Brennan, a wealthy Ohio businessman, to push a program choice through the Ohio legislature.

Notwithstanding black parents' overwhelming support for the scholarship proposals, however, "public interest" legal organizations rushed to attack in the courts what they couldn't defeat in the legislatures. The Wisconsin Supreme Court held that the Milwaukee program did not violate the First Amendment. But in Cleveland, the anti-choice interest groups managed to convince a federal judge, just days before the opening of the school year, to pull thousands of poor children out of their chosen schools. The judge later reconsidered, and the Supreme Court stayed his ruling, keeping the Cleveland program running. But its legal status remains uncertain.

The Milwaukee and Cleveland cases illustrate how church-state jurisprudence stymies meaningful school reform. "The idea of strict separation is," as Viteritti puts it, "of recent vintage and, so far as the Supreme Court is concerned, was short lived." As late as the 1950s, the Supreme Court was still mostly accomodationalist in its religion jurisprudence. But the 1970s "ushered in a ten-year period of judicial decision-making that was confused and incoherent in its thinking. If there was any rhyme or reason to the Court's First Amendment jurisprudence, it coalesced around a separationalist philosophy that was insensitive to the interests of religious believers and out of touch with a tradition of toleration that dates back to the first Congress of the United States." It is this dark decade that provides anti-choice lawyers with their "arsenal of legal precedent."

Over the last fifteen years, the Supreme Court has done much to undo the damage, holding in a series of cases that the Constitution requires neutrality, not hostility, toward religion and religious schools. Most Court watchers agree that it is only a matter of time before the Court finally repudiates voucher opponents' favorite weapon, the 1973 Nyquist case, which struck down a New York program that provided public assistance to parochial schools.

But there are other obstacles ahead. Choosing Equality's most important contribution to the legal debate is its discussion of the "common school" myth that provides so much of the rhetorical ammunition for the defenders of monopoly and their analysis of the various state constitutional provisions that grew out of nineteenth-century nativist movements and forbid aid to religious schools.

Like most choice supporters, Viteritti strongly endorses public funding of education, but he argues that "there is no episode in the American chronicle that better illustrates the inherent dangers of majority rule that so preoccupied Madison than the history of the common school." It was only in reaction to the waves of Catholic and Jewish immigrants in the nineteenth century that the idea of a "common school" system began to catch hold as a way of Americanizing the newcomers and freeing them from their native superstitions. "One cannot reasonably separate," Viteritti insists, "the founding of the American common school from the obtrusive nativism that had its origins at the Protestant pulpit during the early nineteenth century."

The common-school movement was not a civil-society triumph, but a "telling story of the risks involved when a political majority is allowed to establish a monopoly."

The common schools' nativist agenda was supplemented with laws banning government support of parochial schools. Maine congressman James G. Blaine proposed to correct the "defect" in the United States Constitution that permitted states to aid parochial schools, and though the "Blaine Amendment"— which would have done to the Constitution's text what the Supreme Court later did through interpretation — failed, radical Republicans managed to get "baby Blaine amendments" inserted in the constitutions of nearly thirty states. This "unholy alliance between the public-school lobby and nativist political forces would carry over well into the twentieth century,"and continues even today when voucher opponents hint darkly about the insidious influence of the Catholic Church, and some liberal academics emphasize the public schools' important mission to liberate students "from the ways of thinking imposed by religions and other traditions of thought."

Choosing Equality shows that Blaine's legacy and the intransigence of the education establishment are undermining the ideals demanded by Brown v. Board of Education. Viteritti has wisely shifted — or at least re-focused — the terms of the school-choice debate from economics to equality, citizenship, and civil society.

In the end, it is not enough to say that religious schools educate well or that school choice would promote efficiency. The best argument for school choice, Viteritti shows, is that it is essential to achieving equality of opportunity for American children, rich or poor. School choice treats the poor as citizens of equal dignity; it promotes the independence upon which constitutional government depends; and it empowers parents to transmit their values to their children. The advocates of school choice, not the public-education monopoly, are the people who promise to invigorate public life, create more capable citizens, bring together the races, and make good on the Constitution's promises.

NOTE: This article is reprinted with permission of The Weekly Standard, it first appeared on December 13, 1999. For more information on subscribing to The Weekly Standard please call 1-800-283-2014 or visit the website


2001 The Federalist Society