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Bolick v. Chanin

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The future of vouchers is at stake each time lawyers Clint Bolick and Robert H. Chanin square off in court.

Madison, Wis.

When Clint Bolick first defended the Milwaukee private-school-voucher program before the Wisconsin Supreme Court in 1991, he arranged for a busload of children who were beneficiaries of it to come to Madison. But the bus broke down, and the children arrived too late to grab any of the spectator seats in the ornate court chamber.

So they stood in the vestibule, pressing their noses to the glass as the lawyers argued over the program.

"I thought to myself, what a metaphor: those little children, always on the outside looking in," he would later write.

Bolick, the vice president and litigation director of the Institute for Justice, has learned a lesson or two for subsequent argument sessions before the state supreme court. Last month, as Bolick and others were preparing to defend the expansion of the state-financed choice program to include religious schools, he made sure several schoolchildren were near the front of the line to grab precious seats for the arguments.

When all the chairs were taken, two preteen girls could be seen giggling and playing with their hair in the second row. Several $200-an-hour lawyers, meanwhile, were shunted by a marshal to the vestibule, where this time they would be the ones on the outside looking in.

Robert H. Chanin and his allies did not bus in any children to the courtroom that day. But Chanin, the general counsel of the National Education Association, would also appeal to the emotions of the six high court justices hearing Jackson v. Benson.

"Throughout this litigation, we have been portrayed as the bad guys," said Chanin, whose union is one of the groups opposed to expanding the Milwaukee voucher program and opening it to religious schools. The school choice defenders have painted the program's opponents as "denying poor children from escaping the jungle of urban education."

"Quite frankly, we resent the role the [voucher supporters] have cast us in," he added.

For Chanin, the March 4 argument was the latest, but probably not the last, occasion that he has gone up against Bolick in court over private school choice. The two so far have squared off six times around the country over vouchers, from trial courts to state supreme courts. This year alone, they or their associates will argue over voucher proposals in three state supreme courts.

Both men are Washington-based lawyers who are more or less the architects of the nationwide legal strategies for and against vouchers. Their confrontations could determine the blueprints for the future of American public education.

In Wisconsin, the fight is over the expansion of the Milwaukee choice program, both in terms of size and whether it should include religious schools. In Ohio, Bolick and Chanin have both argued over the state-enacted Cleveland voucher program, which already includes religious schools. The Ohio Supreme Court is expected to hear arguments in the case this spring, once again with the participation of Bolick and Chanin.

In Vermont and Maine, much smaller local voucher proposals are being considered in state courts, where Bolick's and Chanin's colleagues or local affiliates have argued the cases.

Bolick and Chanin also squared off last December in the Arizona Supreme Court, where a state law providing a $500 tax credit for donations to private and religious schools was at issue.

A ruling in favor of religious school vouchers could open the floodgates for new programs across the country.

Any one of these cases has the potential to reach the U.S. Supreme Court, where a ruling in favor of religious school vouchers could open the floodgates for new programs across the country.

Bolick, 40, is a former Reagan administration Justice Department official who now espouses libertarian theories and empowerment strategies for inner-city minorities. He is perhaps best known not for his defense of vouchers but for his opposition to race-based government action. Early in the Clinton administration, he dubbed law professor Lani Guinier a "quota queen," helping sink her nomination as the Justice Department's civil rights chief.

Chanin, at 63 a generation older than Bolick, is a liberal lion who has been the top lawyer of the 2.3 million-member NEA for 30 years and is credited with helping turn the once-genteel professional organization into the labor and political powerhouse it is today. He has argued four cases before the U.S. Supreme Court.

Bolick says it is no surprise that Chanin has gotten personally involved in briefing or arguing school voucher cases in five states.

"He's certainly the biggest gun they can bring out," Bolick says. "When you have the general counsel of the National Education Association arguing cases in state trial courts, you know that this is a very big deal to them."

Like most lawyers who are courtroom adversaries, Bolick and Chanin are gentlemanly when they meet face to face.

The two men once ended up seated next to each other on a flight back to Washington after one of their voucher battles. Bolick says they chit-chatted briefly before burying themselves in paperwork.

"There's no great personal warmth between us, but I admire him," Bolick says of Chanin. "His style could not be more different than mine."

Chanin says carefully that he has not been able to judge Bolick's abilities as an courtroom arguer because Bolick has usually had only a short amount of time following government lawyers for the choice program at issue.

"What limited time he has had, he has spent much of it on why choice is the good way to go," Chanin says. "I'm not able to judge someone's legal abilities by that kind of a policy argument."

"He gets up and says things like, 'This is not a case about constitutional law, this is a case about Ms. So-and-so and her children,'" Chanin adds. "That kind of rhetoric may be fine when you are standing before a rally. ... But it doesn't belong before a court."

Bolick has been hailed and criticized as one of a new breed of baby boom-era conservatives. He is a native of New Jersey who attended Drew University in Madison, N.J. He headed for the sunny climate of the University of California, Davis, for law school at about the time that prospective medical student Allen Bakke was arguing he was a victim of reverse discrimination in what would become a landmark 1978 Supreme Court case.

Bolick parlayed his law degree and early experience in conservative groups into jobs in the Reagan administration. He worked for Clarence Thomas at the U.S. Equal Employment Opportunity Commission and remains close to the Supreme Court justice.

After defending school choice for the Missouri-based Landmark Legal Foundation, Bolick and his friend William Mellor founded the Institute for Justice in 1991 as a sort of conservative, libertarian version of the American Civil Liberties Union.

Besides pushing school choice, the Washington-based institute fights affirmative action, defends property rights against government intrusion, and challenges the welfare state.

Bolick jokes that the motto of the Institute for Justice is, "We will travel to the ends of the earth for school choice."

The son of a welder who died when Clint was 12, Bolick has defended jitney cab operators in Houston and African-American hair braiders in Los Angeles from what he considers overzealous government regulation. These kinds of cases, including the voucher programs, put this stocky, balding suburban Republican in frequent contact with the inner-city poor and members of racial minorities.

"I guess I'm one of the rare conservative lawyers who would much rather spend an evening slugging down drinks with one of our taxicab clients or some parents from one of the school choice programs than with the great thinkers of the conservative legal movement," Bolick says.

Bolick jokes that the motto of the Institute for Justice is, "We will travel to the ends of the earth for school choice."

Last year, he traveled to the Northern Mariana Islands, a U.S. commonwealth in the Pacific Ocean that is some 10,000 miles from his offices a few blocks from the White House.

The commonwealth's Democratic governor (since driven from office) and a Republican member of the legislature had proposed a voucher program that would allow a sum, such as $1,500, to follow students wherever they chose to go to school.

Bolick traveled twice to the distant islands to explore and support the proposal. He says the commonwealth governor was surprised with Bolick's fixation on the inevitable legal challenge to the program that would result if it were adopted.

Since the commonwealth falls under the U.S. Constitution, the same prohibition on government establishment of religion applies there as in Milwaukee or Cleveland. A legal case from a U.S. territory can be the basis for a U.S. Supreme Court case.

"The governor said, 'Who would file this lawsuit?'" Bolick recalls. "'Well, the teachers' union,' I told him. 'But there is no teachers' union here,' the governor said. That was music to my ears."

However, the proposed island voucher plan never got off the ground because the governor lost a reelection bid.

It was not the first time that Bolick had journeyed to a warm, sunny island commonwealth to support school choice. Four years ago, he helped defend a voucher program in Puerto Rico, again hoping to get a case that might make it to the Supreme Court.

There, the voucher program was challenged by the local teachers' association, an NEA affiliate. Bolick made four trips to the island, including one for a four-hour argument in Spanish before the Puerto Rico Supreme Court.

"I couldn't argue the case and had an interpreter," he says. "That got to be pretty tedious."

Steven K. Green, the legal director of the Washington group Americans United for Separation of Church and State, also traveled to Puerto Rico, but on the anti-voucher side. He says that at the start of one trial court session, Bolick had 20 to 30 children show up in the courtroom.

"It was on cue, and they filled up the first two rows and just looked up at the judge," Green says. "He knows how to manipulate."

Bolick would face disappointment in Puerto Rico. The supreme court there struck down the voucher program based on provisions of the commonwealth constitution. Bolick would have no grounds to appeal to the U.S. Supreme Court and no potential for a national precedent that would open the doors to vouchers across the United States.

In Wisconsin and Ohio, Bolick has had to play second fiddle to state lawyers defending a legislative enactment.

When it comes to defending the choice programs, Bolick has generally had more experience as a writer of legal briefs than as a courtroom litigator. In Wisconsin and Ohio, he has had to play second fiddle to state lawyers defending a legislative enactment.

In the Wisconsin Supreme Court's first review of the expanded Milwaukee choice program two years ago, Bolick stood in the shadow of a very big-name lawyer hired by the state.

Republican Gov. Tommy G. Thompson did not trust the state's Democratic attorney general to provide a vigorous-enough defense of the expanded Milwaukee choice program, so he hired Kenneth W. Starr--also the independent counsel investigating Whitewater and related matters.

Bolick says he was pleased to have Starr, a former federal judge and U.S. solicitor general, as an ally in defending the choice program, but still was anxious.

"In a sense, I look at this as my baby, since I have been with this litigation since 1990," he says. "To have another lawyer coming in and taking on this case made me worried."

Because of the new allegations surrounding President Clinton that have been added to the Whitewater counsel's portfolio, Starr was unable to participate as the state's hired gun at last month's Wisconsin high court argument.

While one of Starr's partners from the Washington law firm of Kirkland & Ellis argued the federal constitutional questions, Bolick had about 10 minutes to argue several complex state constitutional issues.

"This program remains experimental," he said. "But [expanding it] is the logical second step. ... It is within the purview of the legislature to say, we trust the parents [to choose a school for their children]."

But he also saved a few moments to hit one of his emotional notes.

"This program is one part of a very large and aggressive effort to rescue children from the Milwaukee public schools," Bolick told the justices. "These kids may not have a second chance."

If one were to list the most influential people in American education over the past three decades, a number of names might come to mind. Certainly Albert Shanker, the late president of the American Federation of Teachers, who died last year. Or perhaps former U.S. Secretary of Education William J. Bennett, if for nothing other than his gift for provoking the education establishment.

But according to the 1997 book The Teacher Unions, by Myron Lieberman, Robert Chanin "has had a larger impact on public education over the past 30 years than any other individual, in or out of government."

Lieberman, a former teacher and union negotiator who is now a senior scholar at Bowling Green State University, is one of the fiercest critics of modern-day teachers' unions. The subtitle of his book is How the NEA and AFT Sabotage Reform and Hold Students, Parents, Teachers, and Taxpayers Hostage to Bureaucracy.

The basis for Lieberman's assertion about Chanin is that during the 1960s, Chanin led the NEA into the era of collective bargaining and was the force behind numerous state laws that enhanced the union's ability to win contracts with school districts.

Lieberman also cites Chanin's successful U.S. Supreme Court cases that won the union the right to collect service fees from nonmembers and exclusive access to teachers through school districts' in-house communication systems as long as the union was the recognized bargaining agent.

At his office at Bredhoff & Kaiser in the heart of Washington's K Street law-firm row, the allegedly most influential man in American education can only chuckle at Lieberman's description.

By 1968, Chanin says he was devoting most of his billable hours to the NEA, so he agreed to come on as the union's general counsel in Washington.

"I Xeroxed the page, and gave it to my children and my wife," Chanin says. "Since I and NEA have massive disagreements with many of the positions that Lieberman takes, I can't compartmentalize myself that well and say he's a genius in this regard but he's off the mark in the other."

"Rightly or wrongly, he has always seen me in the background manipulating NEA," Chanin adds. "The fact of the matter is, I've been one of many players. But I have not single-handedly decided NEA policies or pushed NEA in any direction."

Lieberman and Chanin go back to the 1960s together, when Chanin was just one of the union's lawyers at a New York firm and Lieberman was negotiating a teachers' contract for the Mount Vernon, N.Y., district.

"In just a few seconds, I realized I was in over my head," Lieberman recalls in an interview in which he stands by his strong statement about the influence of the NEA general counsel.

"The [union's] officers come and go," Lieberman says. "Even if he wasn't smarter than the rest of them, which he is, he has been there 30 years."

Chanin has clearly found a niche he grew comfortable with. He is a New York City native who graduated from Yale University law school in 1959 and began a Ph.D. program in psychology at Columbia University while working at the university's law school.

By 1962, Chanin says, "I realized the world was not crying for legal psychologists." So he settled for a master's degree and went to work for a New York City labor-law firm that had traditionally represented management.

"At about that time, public-sector unionism was just beginning," he says. The NEA feared the rise of Shanker's United Federation of Teachers in New York City and began to think of itself as a union, an image it had long shunned. The NEA hired Kaye, Scholer, Fierman, Hays and Handler, and Chanin was one of the firm's lawyers assigned to the client.

By 1968, Chanin says he was devoting most of his billable hours to the NEA, so he agreed to come on as the union's general counsel in Washington. He became deputy executive director of the union in 1973.

In 1980, he itched to go back to a law firm, so he joined Bredhoff & Kaiser while retaining his NEA general counsel's post on a contract basis. Bredhoff & Kaiser--founded by the late U.S. Supreme Court Justice and Secretary of Labor Arthur J. Goldberg--is one of the biggest labor firms in the country, representing the AFL-CIO and the United Steelworkers of America, among other unions.

"When I came to the firm, I thought I might wean myself from the union," Chanin adds. "That hasn't happened. My practice is entirely NEA and its affiliates."

Keith B. Geiger, the NEA's president from 1989 to 1996, calls Chanin "an old hard-line unionist."

"I would say Bob is a much different attorney today than 20 years ago," says Geiger, now an official with the U.S. Information Agency. "He has truly been willing to change his own thinking" to accept the NEA's professed commitment to education reform, which the NEA's current president, Bob Chase, is promoting as the "new unionism."

Chanin becomes a bit uncomfortable when asked about the policy reasons for the union's strong stand against school vouchers. He would rather argue the legal case and let others argue policy.

"Anything that undermines public education and has the potential to undermine public education that really does not provide a meaningful answer to the problem, we're opposed to," he says. "Vouchers fit into that category. Their real danger is they are a simplistic, quick fix."

Chanin suggests that if any state high court gives a green light to religious school vouchers, his side would not hesitate to appeal.

Asked why he has taken such a prominent role arguing against vouchers in courts across the country, Chanin says: "Immodestly, maybe because I am more experienced or a better appellate arguer. I don't think that is necessarily the reason."

In fact, he admits a big reason is that the NEA has the money and the resources to lead the charge. Liberal groups such as the American Civil Liberties Union and People for the American Way are also committed to the idea of barring government support for religious schools, but they rely on donations, while the teachers' union has a dues-fortified war chest to spend on its causes.

When it comes to arguing in court, Chanin has a commanding presence. He projects loudly, and his intonation builds into a flowing rhythm. The members of the Wisconsin Supreme Court seemed almost afraid to interrupt him with a question last month. In fact, they sat in rapt attention as Chanin made his remarks.

"He can argue a case with much passion and empathy," Geiger says.

In the Wisconsin high court, Chanin had laid out a plan for the 13 minutes he was scheduled to argue as part of the anti-voucher team, which also included lawyers for the ACLU and for the National Association for the Advancement of Colored People.

Chanin knew from arguing the case two years ago that three justices were not swayed. They announced they would uphold the expanded Milwaukee choice program. One of those three has since retired from the state supreme court and been replaced with what local experts consider a conservative jurist.

In the latest argument, Chanin launched into a discussion of federal constitutional law, arguing that pro-voucher forces were misreading recent rulings from the U.S. Supreme Court and that the high court had not opened the door to publicly funded vouchers that can be used to pay tuition at religious school.

After a few minutes, Chanin said he wanted to "shift gears" and take some "personal privilege." This is when he told the justices that voucher opponents were tired of being portrayed as opposing better educational opportunities for poor children.

He talked about crime in the streets of Washington, and how it might help matters to give greater rein to the police, but how such a concept would be offensive to the Constitution.

"I had told the people there, 'When there is five minutes left [in our allotted time], just pull my leg,'" Chanin recalls. "We've been through this for many, many years now and we've been taking a bashing."

While Bolick and Chanin expect to argue the next voucher case sometime this year before the Ohio Supreme Court, they are well aware that one of the cases may ultimately reach the U.S. Supreme Court--and that such an eventuality is central to any legal strategy.

"The main goal really is operational school choice systems," Bolick says. "If we never got to the U.S. Supreme Court, but were nonetheless successfully able to defend the choice systems, nothing would make me happier. But right now, the way we size it up, we feel we have to get a case to the U.S. Supreme Court as quickly as possible."

Chanin suggests that if any state high court gives a green light to religious school vouchers, his side would not hesitate to appeal.

"On all religion cases, the [U.S. Supreme] Court is going five to four," he says, expressing a widely held assessment of the current makeup of the high court. "If you come up with a religion case that has any kind of a nuance, you can't tell how it will go."

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