Voucher Battles Head To State Capitals

By John Gehring — July 10, 2002 11 min read
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The foundation has been laid for a new round of legislative battles over school vouchers in state capitals from coast to coast.

Just days after the nation’s highest court upheld the Cleveland voucher program, lawmakers in California, Minnesota, Pennsylvania, and elsewhere were talking up plans to seize on what is perceived as a new era for school choice.

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“The constitutional debate is over,” declared state Rep. Tony Kielkucki of Minnesota, a Republican and a former Catholic-school teacher. “The debate will now be a policy issue.” He’s already working to revive his failed voucher bill from earlier this year.

But even as voucher supporters celebrated the June 27 ruling, state policy experts pointed out that sizable hurdles must be cleared before those proponents can improve on their mostly unsuccessful legislative record.

To begin with, 37 state constitutions have language that prohibits state aid from going to religious schools. While advocates of school choice argue that such language is not insurmountable, it seems likely to stall voucher plans.

What’s more, the fight for public opinion and political support will remain fierce. Since 1972, six pro-voucher state ballot initiatives have been defeated. Numerous legislative efforts have suffered the same fate. And it’s not clear if the public is more willing now to embrace vouchers—especially given a tepid economy that has many states fighting simply to preserve current levels of education aid.

“Most states are dealing with deficits, and their energy is focused on balancing budgets,” said Todd Ziebarth, a policy analyst with the Denver-based Education Commission of the States. “You’ll see some increased intensity, but I don’t think the floodgates will open for vouchers.”

Well-financed teachers’ union opposition to vouchers also remains strong. In his July 2 keynote address to the National Education Association convention in Dallas, outgoing NEA President Bob Chase issued a warning to those looking to expand vouchers.

“We stand in principled opposition to vouchers,” he told a crowd of cheering teachers. “And to the voucher ideologues, we make this promise: We will expose your false promises. We will lay bare your lies. And as we have done in California, Michigan, and everywhere else that vouchers have been on the ballot—we will defeat you!”

Still, now that the U.S. Supreme Court has flattened the Mount Everest of a federal constitutional obstacle, voucher proponents are eager to whittle away the remaining barriers—legal and political.

Clint Bolick, the vice president of the Institute for Justice, the Washington-based legal-advocacy group that has been in the thick of the court battles over vouchers, said the ruling allows supporters to “shift for the first time from defense to offense.”

On State Turf

Such efforts are now under way.

For instance, the Minnesota Business Partnership is talking to Rep. Kielkucki about renewing a fight over his plan to offer vouchers to needy parents with children in low- performing schools. The proposal, which died in the legislature this year, could provide up to $5,950 per student—more than double Cleveland’s $2,250.

Meanwhile, the same day that the Supreme Court announced its decision, rumors flew in the Pennsylvania legislature that House Majority Leader John M. Perzel was seeking votes to add a last-minute voucher amendment to the state budget bill.

“It took on a life of its own,” Stephen Miskin, a spokesman for the Republican lawmaker, said of the rumors. Mr. Perzel is a voucher supporter and, at the request of then-Gov. Tom Ridge, has sponsored past voucher legislation. But Mr. Miskin denied that his boss had angled to attach a voucher amendment to the budget bill; the spokesman guessed a lobbyist had floated the idea.

In California, just hours after the court’s ruling, Sen. Ray Haynes, a Republican, huddled with his staff to draft a voucher bill he hopes to introduce that would give parents of students in low-performing schools tuition vouchers worth about $4,000.

But in a sign that the V-word remains primarily confined to the GOP lexicon, California Gov. Gray Davis, a Democrat, declared the same day: “Just because vouchers are legal does not make them right.”

In the face of such divisions along partisan lines, the momentum from the Supreme Court decision may not be enough to transform voucher bills into law any time soon. By and large, voucher proposals have not been well-received in state legislatures over the years. Despite numerous efforts, Florida is the only state to have a statewide voucher program. When Florida legislators passed their law in 1999, legislatures in Arizona, New Mexico, Pennsylvania, and Texas defeated such measures.

Even the support of popular governors like George W. Bush in Texas and Mr. Ridge in Pennsylvania failed to help much.

More recently, most states have taken a wait-and-see attitude on vouchers, knowing that the Supreme Court would likely take up the constitutional issue raised by allowing parents to use public money for religious schools, Mr. Ziebarth of the ECS said.

Even with that question resolved, he doubts the ruling will create a wave of voucher programs comparable to the surge in charter schools in the 1990s, when state economies were flush and there was bipartisan support for the independent public schools.

Instead, lawmakers may back less controversial school choice options, such as tuition tax credits or tax deductions, which give parents a break on their state taxes to help offset private school tuition.

“The ruling does create a more conducive overall climate for choice,” Mr. Ziebarth said. “It will just be interesting to see where people put their energy.”

Rep. Wayne Kuipers, the Republican chairman of the House education committee in Michigan, says voucher fights must first be won at the grassroots level.

“This [decision] may over time change people’s perception about the validity of vouchers,” Mr. Kuipers said. “But I don’t know if there will be a rush to introduce legislation.”

James E. Ryan, a law professor at the University of Virginia, said that voucher programs will continue to have a limited impact unless they are expanded. The most significant barrier to expansion, he argued, is the opposition of suburban parents.

“Suburbanites would not be all that wild about urban students having unlimited access to suburban schools,” Mr. Ryan said. “A voucher program threatens the status of suburban schools.”

Legal Challenges

In addition to political impediments, voucher advocates have to contend with provisions in 37 state constitutions, dating to the 1800s, that prohibit state aid to religious schools.

For example, while Maine and Vermont, in a long-standing practice known as “tuitioning,” allow voucher-style tuition aid to students in communities that do not have their own public high schools, a line has been drawn when it comes to religious schools. Courts in both states have blocked those programs from expanding to religious schools.

The Institute for Justice hopes to challenge such constitutional amendments in federal court.

Meanwhile, voucher proponents will analyze the Supreme Court’s majority decision to shape proposals that offer school choice in the context of options like charter schools and magnet schools, suggested Perry A. Zirkel, a professor of law and education at Lehigh University in Bethlehem, Pa.

That is important, he said, because the Supreme Court noted that Cleveland parents can choose from a variety of school options, rather than simply using vouchers for religious schools.

Justice Sandra Day O’Connor, the crucial swing vote in the Ohio case, wrote that the Cleveland program “affords parents of eligible children genuine nonreligious options and is consistent with the establishment clause [of the First Amendment].”

Added Mr. Zirkel, “You want to provide a broader range of options, so if there was a legal challenge you can show a true range of choice.”

Expanding in Florida

Len Reiser, a co-director of the Education Law Center in Philadelphia, said that beyond the remaining constitutional challenges, many states may be unwilling to shift the focus from standards-based reform efforts to the unproven and politically shaky terrain of vouchers.

“The focus has been how to improve public schools,” Mr. Reiser said. “We haven’t heard a lot of people in Pennsylvania suggesting the way to improve education is through vouchers.

“The issue with vouchers,” he continued, “is more complicated than this constitutional cloud.”

Meanwhile, last month’s decision has cleared the way for further legal action in Florida, where a challenge to the state’s voucher program had been put on hold since February, pending the Supreme Court’s ruling on the Cleveland program.

A Leon County Circuit Court judge in Tallahassee was scheduled to hear a motion for summary judgment on July 9 filed by the Florida Chapter of the American Civil Liberties Union, which has argued that Florida’s voucher program violates the state constitutional ban on providing public funds directly or indirectly to a church or sectarian institution.

Sunshine State education leaders have greeted the high court’s ruling with enthusiasm. “This reaffirms the belief that parents are the ones best equipped to make decisions regarding the educational opportunities for their children,” Commissioner of Education Charlie Christ said.

Florida’s program offers vouchers to students in schools that have been given a failing grade on state testing for two out of four years. Worth up to $4,000 each, the vouchers can be used at public, private, or religious schools.

In 1999, two elementary schools in Pensacola became the first Florida schools eligible for vouchers. Following the newest round of state test grades released in June, 10 more schools around the state with some 8,900 students will be eligible for the vouchers.

Ballot Prospects

In addition to impending legislative efforts, school choice advocates are likely to consider campaigns to take their plans straight to voters.

Ballot initiatives that would have created vouchers have failed once each in Colorado and Maryland, and twice each in California and Michigan.

But the outlook could change following the recent decision, said M. Dane Waters, the president of the Washington-based Initiative and Referendum Institute, which tracks ballot initiatives.

“This ruling will help re-energize the movement and possibly embolden voucher proponents to try again,” Mr. Waters said.

Voucher advocates, he added, have often lacked a consistent message. He pointed to the failed 2000 initiative in California that was criticized even by voucher supporters as being overly broad. That proposal, unlike the voucher program upheld in Cleveland, would not have been limited to children of low-income families in a specific school district. The measure was organized and backed by a Silicon Valley venture capitalist who ignored suggestions to seek a smaller program. He spent some $23 million on the measure, which was resoundingly defeated.

“In the last election cycle, the school choice movement was splintered,” Mr. Waters said.

Joe Overton, the senior vice president of the Mackinac Center for Public Policy, a free-market research institute in Midland, Mich., said school choice advocates in his state have learned from lopsided defeats of 1978 and 2000 voucher initiatives.

As a result, he expects a state initiative on tuition tax credits, rather than vouchers, sometime in 2004 or 2006. “In Michigan, the word ‘voucher’ is radioactive,” Mr. Overton said. “Tax credits are much more politically viable.”

Campaign Issue

With gubernatorial elections in 36 states this coming November and legislative elections in just about every state, observers are watching to see what role a debate over vouchers and other school choice programs might play.

David Paris, the vice president for academic affairs and a professor of political science at Hamilton College in Clinton, N.Y., said that while some candidates will jump on the issue, others might avoid it.. “It all depends,” he said, “on the local landscape and teachers’ organizations in those states.”

Vouchers seem sure to be a campaign issue in Ohio, whose legislature enacted the program that has passed muster with the Supreme Court. Lawmakers there who support school choice say they will push to build the Cleveland program. “There is no question in Ohio that from the lake to the river, there is interest in expanding school choices,” said David Zanotti, the president of both the Ohio School Choice Committee and the Ohio Roundtable, an education and research organization.

Half the state’s Senate seats and all seats in the House are up for grabs this fall. “There’s a very significant battle ahead,” Mr. Zanotti said..

Ohio Sen. Jim Jordan, a Republican, already is promising that he and other lawmakers will push to increase the value of the vouchers in Cleveland and expand the program to other districts.

In Wisconsin, Rep. Luther S. Olsen, the Republican chairman of the Assembly education committee, doubts Milwaukee’s voucher program will expand because other communities are not clamoring for voucher programs.

While Cleveland became a natural fit for a voucher program because it was the largest and worst-performing district in Ohio, Sen. Jordan said other urban systems are prime candidates.

“The way to do it politically is to build on what has happened in Cleveland,” he said. “The horse is out of the barn, but it’ll be a fight.”

A version of this article appeared in the July 10, 2002 edition of Education Week as Voucher Battles Head To State Capitals


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