By now, I’ve received a dozen or so press releases from editorialists and institutions proclaiming the Supreme Court decision "Zelman, Superintendent of Public Instruction of Ohio, et al. v. Simmons-Harris et al." (argued Feb. 20, 2002-June 27, 2002) as the greatest step toward liberty in our time. Oh sure.
From reading these breathless tracts, you’d think that the very same Supreme Court that has blessed and even dictated 50 years of catastrophic political centralization in American public education has suddenly been converted to libertarianism, and is fighting for the property rights of parents, and their right to educate their children in freedom.
Well, no surprise, that would be a wrong conclusion. What the court approved was an aspect of Ohio’s Pilot Project Scholarship Program that allows kids receiving vouchers for elementary education to use them at schools with a religious affiliation and/or ownership. The majority of the Court said that because the parents, and not the government, decide how and where the voucher is spent, this is not a violation of the first amendment separation of church and state.
Well, of course it is not a violation of the first amendment! In the original Constitution, the Bill of Rights restricted only the activities of the central government. It was supposed to prevent it from compromising the federal nature of the American system, which left the states free to govern themselves.
But in the interim, in an Orwellian turn, the Supreme Court has flipped this system on its head, controlling the states in the name of the Bill of Rights (as if the 14th amendment miraculously incorporated the first ten amendments), thus requiring the same consolidation that the Bill of Rights sought to prevent.
In the original constitutional structure, the Supreme Court had no jurisdiction over Ohio’s educational programs. In general, the states learned in the 19th century that it was a very bad idea to subsidize religious schools because it only increased public hatred for the religion being helped. But a state’s right to do so was never in question. Today, however, the Supreme Court can determine any aspect of state-level educational policy.
To be sure, Zelman was not decided on federalist grounds. Indeed, there is no mention of the enumerated powers and 10th amendment. The Court cites the "valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system." And that little sentence begins to point us toward the truth about the program, which isn’t about freedom but merely an extension of welfare rights.
The Cleveland program is means-tested, paid for by the rich as a benefit to the poor. As the Court says, “Tuition aid is distributed to parents according to financial need…. The only preference in the program is for low-income families, who receive greater assistance and have priority for admission."
In other words, the people who do not pay the bulk of the taxes — most Ohio schools are funded largely via property taxes — are getting the bulk of the benefits, while those who do pay the taxes are ineligible for the benefits. If the middle and upper-middle class want to send their children to private schools, they must shell out twice: once for public schools for everyone else and once again for the schools they actually use. Meanwhile, the poor are not only not paying into the public-school system, but now receive a direct cash transfer from those who do pay into the system. In other words, it’s welfare.
The Ohio legislation, passed in 1995, has the government pay $2,250 in tuition for a "low-income student" (as defined by the social welfare bureaucracy) who enrolls in a private school. The participating school agrees to allow the state to control its tuition and also agrees to surrender control over admission requirements: crucially, the religious school may not discriminate on grounds of religion, according to the Ohio statute, and that includes in the hiring of teachers and principals.
Not that the participating schools object. Catholic schools in this country, and many mainline evangelical schools, long ago gave up their doctrinal identities as the core of the mission. The schools that have accepted the vouchers admit they have been transformed, as these interviews reveal. An example from the principal of St. Mary’s elementary: "Before vouchers, we were a parish school. We catered to the kids in our parish. Now, we are really a community school. We serve a lot of kids from the area."
Indeed! Sloshing around public money can bring that about. As Justice Souter pointed out in his dissent:
a separate condition that "[t]he school … not … teach hatred of any person or group on the basis of…religion,"…could be understood (or subsequently broadened) to prohibit religions from teaching traditionally legitimate articles of faith as to the error, sinfulness, or ignorance of others, if they want government money for their schools…. For perspective on this foot-in-the-door of religious regulation, it is well to remember that the money has barely begun to flow. Prior examples of aid, whether grants through individuals or in-kind assistance, were never significant enough to alter the basic fiscal structure of religious schools; state aid was welcome, but not indispensable…. But given the figures already involved here, there is no question that religious schools in Ohio are on the way to becoming bigger businesses with budgets enhanced to fit their new stream of tax-raised income….When government aid goes up, so does reliance on it; the only thing likely to go down is independence. If Justice Douglas in Allen was concerned with state agencies, influenced by powerful religious groups, choosing the textbooks that parochial schools would use, 392 U.S., at 265 (dissenting opinion), how much more is there reason to wonder when dependence will become great enough to give the State of Ohio an effective veto over basic decisions on the content of curriculums? A day will come when religious schools will learn what political leverage can do, just as Ohio’s politicians are now getting a lesson in the leverage exercised by religion.
So here is the essence of the program approved by the Supreme Court. It takes taxes paid by the earning classes to give to poor parents who enjoy an exclusive right to leave public schools they weren’t paying for anyway to attend private schools which now accept controls over admissions and tuition and curriculum (becoming public schools, in effect).
The only mystery is why libertarians are celebrating, when they should be pointing to the wisdom in Souter’s dissent. This correct position for a libertarian is clear: 1. Deregulate schooling and permit every kind and variety, without compulsory attendance laws; 2. Reduce or eliminate taxes that fund schools; 3. Remove your children from the public schools, the sooner the better, but do it at your own expense. Vouchers do none of the above.