School Vouchers: The First Step Towards a Discriminatory Educational System
On November 9, 1998, Jennifer Marshall, Education Policy Analyst for the Family Research Council, declared in a press statement: "Parental choice in education just got a green light from the Supreme Court." Her statement came as a response to the decision made the same day by the Supreme Court to deny a petition for a writ of certiorari in Jackson v. Benton, a case in Wisconsin which challenges the constitutionality of vouchers in public education. By refusing to take this case, the Supreme Court lets a decision made in the state supreme court stand, in which the court upheld the Milwaukee Parental Choice Program as constitutional. The United States Supreme Court voted almost unanimously to deny cert, indicating either that they agree with the Wisconsin court's decision or that the case is not worthy of their time or consideration, or both. (Neither the lone dissenter, Justice Stephen Breyer, nor the 8-justice majority released any explanations of their actions.) Legally, their choice not to hear the case sends a passive but clear message: vouchers in public schools are valid under the Constitution of the United States. However, questions remain surrounding the particulars of the Wisconsin program, as well as the larger questions over the concept of vouchers in general. One that is raised is: Can the government in good faith sanction the removal of children from the public schools, at its own expense and at the expense of the children who remain in those public schools?
The Court has been strangely inconsistent in its treatment of voucher cases. In 1973, The Court found that vouchers for religious schools violated the establishment clause, but in 1997 approved a New York religious-based program. Supporters who take the New York decision as a go-ahead for all voucher programs should beware. In the New York case, the decision said only that sending taxpayer-paid teachers into religious schools to help students with non-religious subjects (math, English, science, etc.) did not violate the establishment clause of the First Amendment. Strictly speaking, that program did not provide for "vouchers," funds mandated by the state for under-privileged families to send their children to private or parochial/religious-based schools.
The Milwaukee program is quite different. Its conditions include the following: any child, K-12, who lives within the city, "may attend, at no charge, any private school located in the city" if he or she meets the criteria of the program. The program contains provisions for a phasing in of the voucher population; in 1995-96, only 7% of the school district's membership could attend private school, while the next year, no more than 15% could be enrolled in private institutions. Upon enrollment, "the state superintendent shall pay to the parent or guardian...an amount...equal to the private school's operating and debt service cost per pupil...