The hubbub outside the U.S. Supreme Court building had barely died down late last month before the action shifted to the big white dome across Capitol Hill’s First Street.
Just hours after the court upheld the Cleveland school voucher program, a leading House Republican introduced a bill that would help more than 8,000 District of Columbia students from low-income families attend private schools. And within days, President Bush descended on the northern Ohio city to deliver an unabashed pitch for expanding the voucher movement locally and, in some form, nationally. For good measure, he moved on to Milwaukee the next day, again dwelling for awhile on choice while speaking at a church that participates in that city’s pioneering voucher program.
Backers of publicly financed vouchers that can be used to pay tuition at secular and religious private schools hope the high court’s ruling will spur their efforts to provide a federal subsidy for that purpose.
The two leading candidates on the table right now appear to be the District of Columbia voucher bill, put forward with such dispatch by House Majority Leader Dick Armey, R-Texas, and President Bush’s plan for education tax credits. One proposed use of those credits is to pay up to $2,500 in private school tuition for students wishing to leave struggling public schools.
But a blessing by the Supreme Court won’t necessarily translate into a win on Capitol Hill, where the barriers to subsidizing private school choice have been far more about politics than the U.S. Constitution. Indeed, some experts on Congress argue that the situation is unlikely to change much.
“The court settled the legal issues; the political problems remain,” said Marshall Wittmann, a senior fellow in the Washington office of the Hudson Institute, an Indianapolis-based think tank. “It’s just not going to happen. .... It’s a nonstarter for the unions that the Democrats are not going to buck.”
Not everyone, though, is so sure.
“The chemistry has changed in that pro-voucher people have more momentum now,” said Jack Jennings, the director of the Washington-based Center on Education Policy and a former longtime aide to House Democrats. “Anyone who has a Supreme Court decision in their favor has a little wind at their back. This is going to help them nationally.”
During his Great Lakes sojourn last week, Mr. Bush offered praised for the 5-4 ruling, in which the majority held that directing taxpayer money to religious schools is constitutional under the First Amendment clause forbidding a government establishment of religion, provided that such direction results from a parent’s independent choice from among both religious and secular schools.
“The Supreme Court of the United States gave a great victory to parents and students throughout the nation by upholding the decisions made by local folks here in the city of Cleveland, Ohio,” the president said July 1. “One of my jobs is to make sure that we continue to insist upon reform, to take this court decision and encourage others to make the same decision at the local level. One way to do so is through tax credits, which is now in my budget.”
As part of his proposed spending plan for fiscal 2003, released in February, Mr. Bush called for a federal income-tax credit of up to $2,500 to help families transfer a child out of a public school identified by the state as failing to make “adequate” academic progress under the “No Child Left Behind” Act of 2001. Parents who opted to send the child to a private school or another public school would receive a refundable credit on their tax returns for 50 percent of the first $5,000 in tuition, fees, and transportation costs.
The credit could also be used to offset the costs of private tutoring, books, and computers to enhance a child’s education. Because the credit would be refundable, parents who did not earn enough to owe income taxes would instead receive cash from the federal government.
The education tax credit essentially tries to do through the tax code what Mr. Bush could not accomplish during last year’s debate on the No Child Left Behind Act, which reauthorized the Elementary and Secondary Education Act. Originally, the president wanted students who attended poor-performing schools to be able to use a portion of those schools’ federal aid to attend other schools, whether public or private, or use the money to get tutoring. The private-school-tuition piece was effectively jettisoned early in the debate last year, as Democrats made clear that their opposition to vouchers was non-negotiable.
Aside from resurrecting the concept months later in his 2003 budget, albeit in a different form, President Bush also proposed in his fiscal 2003 budget for the Department of Education to set up a $50 million choice demonstration fund that would provide grants to expand school choice, including for private schools.
The chief barrier to vouchers or tuition tax credits is the Senate, where Democrats hold a slim majority and any such measure would need 60 votes to avoid or stop a filibuster. While a handful of Democrats have supported voucher experiments before, opponents said there have never been enough to meet the 60-vote threshold, especially with a few moderate Republicans opposed.
In 1997, the Senate, then controlled by the GOP, approved a District of Columbia voucher bill on an unrecorded voice vote. It cleared the House in the spring of 1998. But President Clinton promptly vetoed the bill, an expected result that those familiar with events say explained Senate Democrats’ willingness to let the bill pass.
“I’m optimistic that we still have the votes to defeat vouchers on the Senate floor,” said Jim Manley, a spokesman for Sen. Edward M. Kennedy, D-Mass., the chairman of the Senate Health, Education, Labor, and Pensions Committee.
Shortly after the Supreme Court decision came down, Sen. Kennedy made clear his mind was unchanged.
“Private school vouchers may pass constitutional muster, but they fail the test when it comes to improving our nation’s public schools,” he said.
Mr. Manley noted that the last time the Senate took a vote on a voucher measure, as part of the debate over the No Child Left Behind Act last June, it received only 41 votes. That proposal, offered by Sen. Judd Gregg, R-N.H., would have provided $50 million for a pilot voucher program. Mr. Kennedy and other leading Democrats have made clear that they view the president’s tuition tax credits as simply another form of vouchers.
Another obstacle, at least for this year’s congressional doings, is the backlog of legislation, including 13 must-pass spending bills, a prescription-drug bill, and a plan to create a homeland security department.
"[Lawmakers] already have a huge agenda for the remainder of this year, and just not time to complete it,” said Norman J. Ornstein, a senior scholar at the American Enterprise Institute, a Washington think tank. “To add a debate on vouchers would be extremely difficult. ... No doubt conservatives, especially in the House, will be dying to do that.”
Mr. Ornstein said he thought there was a “pretty good chance” the House could pass the education tax credits, but he predicted there would be no action in the Senate. He added, however, that even in the House, it would be a “tricky business” to get the tax- credit plan through. Beyond the busy schedule, another problem that could complicate matters is finding the money to pay for more tax breaks.
Mr. Jennings of the Center on Education Policy said that given the larger obstacles to tax legislation, the District of Columbia plan might be the bill to watch. He suggested that Republicans could attach it to the appropriations bill for the nation’s capital.
Dan Gerstein, a spokesman for Sen. Joseph I. Lieberman of Connecticut, one of the few Senate Democrats to support a voucher experiment in the past, said that while he believes the Supreme Court decision “removes one of the hurdles” to vouchers, it’s still an uphill battle.
“At this point, it’s anyone’s guess whether [a District of Columbia voucher plan] could pass through the Senate,” he said. “There will be a lot of vehement opposition.”
As many as 12 to 15 Senate seats could be genuinely up for grabs in November, political analysts say, and a significant shift then could materially affect the voucher debate.
But with the current cast of characters, said Dan Katz, the director of legislative affairs for the advocacy group Americans United for the Separation of Church and State, the Senate likely will remain a sufficiently sturdy roadblock to any voucher plan.
“The bottom line is that, as far as Congress is concerned, this fight has always been about education policy, not constitutional issues,” Mr. Katz said. “How often were you hearing people on the floor debating the finer points of the establishment clause?”
A version of this article appeared in the July 10, 2002 edition of Education Week as Ruling Gives Second Wind To Capitol Hill Voucher Advocates