2 Lawsuits Seek State Vouchers For Poor Youths

By Mark Walsh — June 17, 1992 5 min read

A conservative advocacy group took another step last week in its national litigation strategy to push parental choice in education by announcing lawsuits demanding that groups of low-income parents and children in Chicago and Los Angeles receive state vouchers for private-school tuition.

In suits filed in Illinois and California state courts, the parents and children argue that the local public schools are unconstitutional because they offer an education that is inadequate, unsafe, and lacking in parental control and involvement.

The suits were organized by the Institute for Justice, a Washington-based organization. These people do not really enjoy access to the American dream--they do not enjoy the opportunity to send their children to a safe, decent school,” Clint Bolick, the vice president and litigation director for the institute, said at a news conference in Washington.

The lawsuits cite various provisions of the state constitutions and the U.S. Constitution in seeking rulings that would allow the children to leave the public-school system and take their share of state education funding with them.

The Chicago suit, for example, points out that the Illinois constitution requires the state to “provide for an efficient system of high-quality public educational institutions and services.”

“By any objective measure, defendants have not provided” the Chicago pupils with “efficient or high-quality public educational institutions,” the lawsuit argues. The appropriate remedy would be to allow the children to take their ''pro rata” share of state education funding-currently about $2,500-and use it to enroll in private schools or other public schools, the suit contends.

An unusual aspect of the Chicago and Los Angeles suits is that they are not class actions. Rather than seeking to extend the remedy to all low-income parents whose children are receiving inadequate educations, the suits seek a ruling only on behalf of the named plaintiffs.

The class of students who would qualify for such a suit would be too hard to define, Mr. Bolick said, adding, “We wanted to represent parents whose kids are in the worst schools.

Legal Obstacles Seen

The lawsuits are an attempt to achieve through the courts what advocates of private-school choice have been unable to obtain through most state legislatures or the Congress: a voucher system that would allow parents to use public funds to choose any school for their children.

“We intend to put the public schools on trial,” Mr. Bolick said at a the news conference, where the suits were announced. “It’s a trial they can’t possibly win.

“But a number of legal analysts were skeptical that the institute’s strategy would be successful.

“It’s difficult for me to imagine any grounds that would force the government to subsidize private or parochial education,” said Erwin Chemerinsky, a professor of law at the University of Southern California and an expert on constitutional law.

John E. Coons, a law professor at the University of California at Berkeley who supports private-school vouchers for low-income families, also said he doubts these plaintiffs will get very far In the courts.

“If they get to trial, it will be an interesting seminar to rattle the cage of the establishment,” Mr. Coons said. “But it just not does seem likely that any judge will give them a forum to air it. That is, it won’t get past a motion to dismiss.”

But others suggested that the suits were a novel way to address the question of educational adequacy for low-income families.

One who did so was Stephen Arons, a professor of legal studies at the University of Massachusetts at Amherst who has written extensively about using private-school vouchers for desegregation purposes. His ideas were cited last week in materials released by the institute.

Mr. Arons said in an interview that private-school vouchers can both vindicate individual rights to a desegregated education and “support the right of the family to choose the type of education the child should receive regardless of the wealth of the family.”

The reasoning behind the institute’s lawsuits is “consistent” with his approach, he added.

“But if a suit like this were expanded to include upper-middleclass families, then I think it would be a misuse of the theories I have advanced,” Mr. Arons said.

Momentum for Choice

Regardless of the legal uncertainties, supporters of school choice said the suits would provide additional momentum for the national debate over the issue.

The suits “offer real hope for empowering low-income parents to obtain quality schooling for their children,” said State Representative Polly Williams of Wisconsin, the maverick legislator who pushed for that state’s private-school voucher program for low-income children in Milwaukee.

“Chicago and Los Angeles don’t have a Polly Williams,” she added at the news conference.

The lawsuits’ backers said the effort could spread to other cities if local groups help organize the litigation. The next likely target is Atlanta, with the Georgia Public Policy Center taking the lead, Mr. Bolick said.

The lawsuits come amid legislative and ballot-initiative efforts in Illinois, California, and elsewhere to push a voucher system for private schools.

In Illinois voucher measures appear to be stuck in legislative committee. But California supporters of a proposed ballot measure that would make education vouchers part of the state constitution have expressed confidence that their petitions will go before voters in November See Education Week, May 6, 1992)

‘Educational Caste System’

The California suit was filed June 11 in Los Angeles County Superior Court by 18 parents and 39 children against State Superintendent of Public Instruction Bill Honig, State Controller Gray Davis, and the state board of education. The Los Angeles Unified School District was not named as a defendant.

The suit says the low-income families all reside in south central Los Angeles County--the epicenter of the recent riots--and most of the pupils attend public school but have to give that up when she lost her job, Mr. Bolick said.

In addition to citing the California constitution’s general language on education, the suit points to the state education code’s policy that every student leaving the public school system " be prepared to enter the world of work” and have sufficient marketable skills for legitimate renumerative employment.”

“By consigning plaintiff schoolchildren to inadequate schools and by depriving their parents of essential control and choice over their education, defendants have created an educational caste system,” the suit says.

The Chicago suit was filed June 10 in Cook County Circuit Court by 30 parents and 70 children against State Superintendent of Education Robert Leininger, the state board of education, and the Chicago Board of Education.

Responding to the suit, Ted D. Kimbrough, the general superintendent of the Chicago schools, told reporters that the proposed voucher remedy “expands an elitist system, and only serves to increase the disparity between parents who can access resources and those who can’t.”

A version of this article appeared in the June 17, 1992 edition of Education Week as 2 Lawsuits Seek State Vouchers For Poor Youths