Federalist Society Hosts Debate on Vouchers
by Franklin Lemond
Last month, the Federalist Society was honored to have Clint
Bolick, Vice President of the Institute for Justice, and Chris
Carr, formerly of the Georgia Public
Policy Foundation and now with the Isaacson for Senate campaign, join professors
Neil Kinkopf and Patrick Wiseman for a debate on school vouchers. Mr. Bolick
presented his views in favor of school vouchers, while Prof. Wiseman offered
his views against the school vouchers program. Professor Kinkopf offered
a moderate view of voucher programs and Chris Carr offered commentary
on the
possibility of a voucher program in the state of Georgia.
Mr. Bolick led off the debate, outlining his experiences in school
voucher litigation with the Institute for Justice. His first experience
with school vouchers came 13 years ago in Milwaukee, Wisconsin,
when, with the help of Polly Williams, a former welfare recipient,
a voucher program was approved for 1,000 low-income students to
receive their "share" of funds that they were allowed
to use as full tuition at non-sectarian schools in the Milwaukee
area. This plan was met by an immediate lawsuit from the local
teachers union, and by regulatory opposition from the State school
superintendent, Bert Grover.
Mr. Bolick then discussed the Cleveland School Choice Program
that was the impetus for the recent Supreme Court decision. In
Bolick’s opinion, the one of the reasons the Cleveland program
was opposed so aggressively is because parents were given the choice
of spending their stipend at the religious schools in the Cleveland
area. While opponents of these programs argue that allowing parents
to use their stipend at a religious school violates the establishment
clause of the Constitution and the doctrine of separation of church
and state, the Supreme Court looked at whether the money received
by the religious school was given directly by the government as
a subsidiary, and whether there were a range of educational alternatives
or only sectarian choices. In spite of the fact that 97% of the
private schools that parents in Cleveland had to choose from had
religious affiliations, the Supreme Court decided that parental
choice was the determining factor, not that the majority of the
choices were religious schools. Because the stipend was being given
to the parents who then made their choice on which school to attend,
the Supreme Court held the plan was constitutional.
In Mr. Bolick’s opinion, the education establishment is
so adverse to school choice programs for two reasons. One is that
for the first time, low-income families are given some choices
and some power as to where their kids can go to school, something
that until voucher programs had been reserved for more affluent
families. Second, Bolick feels that now the schools have to compete
for low-income students and the dollars they command. However,
according to Bolick, what is ultimately important is "not
where they [the students] are being educated, but whether they
are being educated."
Next, Professor Kinkopf presented his moderate view of the school
voucher debate. According to Prof. Kinkopf, he approaches this
topic from a "confused" standpoint because he approaches
the Cleveland case from a personal perspective, having grown up
in Cleveland, attended Catholic schools in Cleveland from first
grade through High School and even gone to law school in Cleveland.
While Kinkopf admitted a principled objection to what he called "government
subsidizing religious schools," he realizes from his personal
experiences that the public school system in Cleveland is an "unmitigated
disaster." Although he feels it would be deeply hypocritical
to want to keep public school kids from having the same bonus he
had in attending a Catholic school, Professor Kinkopf only understands
this program as a subsidy to the Catholic school system. Kinkopf
noted that it has long been the ambition of the Catholic Church
to win public funding for their schools in Cleveland because they
could benefit greatly from receiving public funds for something
they were already doing.
One of Professor Kinkopf’s biggest concerns regarding the
Cleveland voucher program is the Free Exercise Clause problems
it presents. Kinkopf argued that vouchers do and should come with
strings attached. The Catholic schools will be required to provide
a safe school environment and to actually educate the children
that attend a school on a voucher. These strings will be spelled
out in ways that will interfere with the Catholic Church’s
ability to make autonomous decisions. Prof. Kinkopf fears that
receipt of these public funds will but the church in the awkward
position of having to either "follow the money or follow the
Pope."
Professor Wiseman then presented an argument in opposition to
the Cleveland voucher program. While acknowledging the poor state
of the public school system in Cleveland, Prof. Wiseman argued
that the way to solve this problem is not to create a constitutionally
suspect program. Prof. Wiseman feels that this program does not
offer real choice. This program provides more choice to the private
schools that to the parents, because while parents may choose a
certain school for their child, Wiseman fears they may not be admitted
in some cases. Additionally, some private school tuition costs
far more than the amount of the voucher students can get. Unless
the program establishes the amount of the voucher is all that has
to be paid, most families will not be able to make up the difference
in tuition to ensure enrollment. Prof. Wiseman also fears that
with a quality education comes religious indoctrination, especially
with 97% of the school choices being sectarian.
Finally, Chris Carr spoke about the obstacles that exist in Georgia
to the creation of a similar voucher program. While conceding this
discussion was premature since it has not been determined whether
a voucher program is either needed or wanted in Georgia, Mr. Carr
discussed two obstacles under Georgia law to this type of voucher
program. The first is the so called Blaine Amendment which has
been adopted by 37 states and provides a more robust interpretation
of the separation of church and state doctrine, blocking any indirect
endorsement of religious institutions by the state. The second
hurdle is the fact that school funding is purely a local taxation
issue in Georgia, which presents various problems that did not
exist in the Cleveland case.
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