Why did the Institute for Justice decide to take on this voucher court
Bolick is a co-founder and Director of Litigation for the Washington D.C.-based
Institute for Justice, begun in 1991 as the "nation's only libertarian public
interest law firm" and as an alternative to the American Civil Liberties Union.
The Institute for Justice represents parents and children in
various legal cases across the country in support of school choice, including
the Cleveland, Ohio lawsuit regarding a publicly funded scholarship program
where the Institute has joined with the state of Ohio to defend the state's
We have been involved in the school choice battle since we opened our doors in
1991. . . . The very first court battle was in the spring of 1990, when the
first school choice program was passed in Milwaukee. It was a tiny program
that evoked a tremendous response from the educational bureaucracy, in the form
of a lawsuit and an onslaught of regulations. We represented the parents and
children, defending the program and challenging the regulations. And on the
first day of school in the year of 1990, we were successful. The kids crossed
the threshold to a new day in their educational opportunities. And they've
never looked back.
Governor Jeb Bush had the voucher program in Florida. There was a recent
verdict saying that the voucher program there was unconstitutional. There's
also been a ruling by a federal district judge in Ohio, saying that the
Cleveland program was unconstitutional on grounds of church and state
separation. Is the tide turning against you? How do you see it?
One thing we've learned in these legal battles is that you need a
tremendous amount of stamina. In just about all of the cases in which we've
been involved, we've lost somewhere along the way. But at the end of the day,
we have not lost a single student from a voucher program. The most recent good
news was from the United States Supreme Court last November, which dissolved
the outrageous injunction that Judge Oliver in Cleveland issued against the
program on the eve of the school year. That would have wrenched 4,000 kids out
of the only good schools they had ever attended. But the United States Supreme
Court said, "No way." For us, that's the brightest light on the horizon.
What do you think is going to happen now? Different state supreme courts
have had different rulings. Wisconsin says, "Go ahead," while Maine and
Vermont say, "No." How is this going to get resolved?
There's going to be a constitutional cloud hovering over school choice
until it is ultimately removed by the United States Supreme Court. I think
that day is coming very, very soon. That same court issued the most sacred
promise of educational opportunities for all schoolchildren in 1954, in Brown
versus the Board of Education. That court is not going to turn around and deny
kids the first real chance they've ever had, in many instances, of obtaining
that equal educational opportunity.
Do you think that Cleveland will be the test case?
In a very rare occasion, I agree with both sides that the Cleveland case is
most likely to go to the United States Supreme Court. We do have a conflict
among courts on the constitutionality of school choice. Cleveland is a
prototypical program, because it is focused primarily on low-income children.
As a result, the time has come for the United States Supreme Court to take this
issue on. And we're very optimistic.
In his ruling, Judge Oliver said, "I'm opposed to this program because it
violates the First Amendment of the U.S. Constitution." Most of the students
in the voucher program in Cleveland are African-American students, and they are
going to Catholic schools at the moment. Do you is there anything wrong with
that? What do you say to Judge Oliver?
The fact that most of the kids are in religious schools says more about the
willingness of religious schools to throw these kids a life preserver than it
says about separation of church and state. This program invited all schools to
participate, including suburban public schools. Not a single one of those
districts agreed to allow low-income kids to come out there and attend their
public schools. The fact that the Catholic schools are enlisting and giving
these kids a chance should not render the program unconstitutional.
From my own experience, and also from looking at Cleveland, I know that
these Catholic schools are doing a fantastic job. . . . But there is no
mistaking that they're religious schools. These kids are going to Mass, and
they're getting religious instruction. Does that violate the
No, as long as a program gives parents the choice of where to send their
kids and does not create any sort of financial incentive for them to do so.
The fact that religious schools are among the options, or are prominent among
the options, should not be a constitutional problem. When people use the GI
Bill, Pell grants, and assistance for disabled students who go to religious
school . . . these programs aren't unconstitutional. Parents get to choose,
and the state is neutral as far as which schools will participate in the
program, or where the parents will send their kids to school.
We just came from speaking with Barry Lynn. and I know you've debated him on
this issue many times. . . . He really worries about this country being divided
along religious lines . . . if we tear down this wall between church and
The irony is that, if you want to see a school in the inner city that is
racially diverse, economically diverse and religiously diverse, go to a
Catholic school. If you want to see ethnic balkanization, go to one of the
public schools in the inner city, where kids will not have any opportunity to
interact with kids outside of their economic or racial group. These schools
are havens of communities. They serve the communities in which they are
located. I think it adds to the ability of Americans to get along. . . .
In 21 states, at some level, state legislatures are considering a
voucher program. Do you feel like there is sort of a dam here, that once a
decision gets made once and for all, the floodgates are open?
I really do view this as the Berlin Wall, and the first bricks are already
coming down. Once those first bricks come down, the rest of them are coming
down really fast. It's not really a question of whether school choice is going
to expand around the United States, but when.
One argument you hear is that we have choice in this country: if you've
got the money, you can send your son or daughter to a private school. . . . So
if someone doesn't have the money, they should stay in the public school
We actually subsidize wealthier Americans to exercise school choice. If you
buy an expensive home in a really good neighborhood in order to take advantage
of a good school system, you get a massive tax break from your federal income
taxes on your mortgage payments. Low-income parents don't have that kind of
choice. What we've got to do is to say, "Listen, we've failed you in providing
you an educational opportunity. We're going to turn over to you the same power
that middle- and upper-income parents have, and that is the power to chose a
decent school for your child." We owe every parent in America that
What would you like to see if you had sort of control over public education
in this country? . . . How would you like to see it organized?
Ultimately, this is about funding, and placing funding at the disposal of
parents. I think that every child should have an equal amount of money behind
that child's education. That money should go to wherever the child obtains
education, whether it's in a public school, a private school, or in front of a
computer screen. . . .
We've heard a lot of talk about revolutionary change--that it's a
revolution because, at the moment, you have still almost 90 percent of students
in public schools. They go to the neighborhood school or maybe their district
allows them to go across town because of busing.
A lot of people consider the idea of universal choice radical, but it's not at
all. If you look at our post-secondary system of education, that's exactly
what we have. The states run their own school systems and they also provide
funding for students to go wherever they want, to private or to public schools.
That system is the world's envy. I wish I could say the same about our K-to-12
One argument against voucher systems is that you tend to get the most
motivated parents, the parents who want the best education for their child.
They take that money from a failing public school and spend it in a parochial
school. That leaves the public school, which was bad to begin with, even worse
off, because they've lost money, they've lost a good student, and they've lost
a motivated parent.
Whenever I hear the argument about cream skimming, that the best parents are
leaving the system, I always challenge the person who's raising that concern:
"Why don't you put your kids in these failing schools?" I haven't had a
volunteer yet. We cannot ask any parent in America to sacrifice her children
for some theoretical notion that it will make the school better. But beyond
that, it turns out that when you look at these programs, we're not talking
about cream skimming. The kids in these schools who are leaving are typically
poorer than the kids who are being left behind. And the reason for that is
really simple, when you think about it. If a child is doing well in the
school, then the child is not going to leave. If the child is not doing well,
that's when a parent becomes motivated to get an alternative. . . .
Some people we've talked to are afraid that part of your motivation, or
the motivation of others who support vouchers, is that you use vouchers for a
variety of things--not just to help black kids at failing public schools, but
to be spent for basically lots of religious schools around the country, and
I happen to be a religious non-believer but I'll tell you where I'm a
convert. I'm a convert to Catholic schools in the inner city. When I walk
down the hallways, I see a crucifix on the wall, but I also see education going
on in a safe environment. It seems to me that anyone who supports the goals of
public education has got to support using every possible alternative that we
can find to get that job done. . . .
How would you describe America's public education system? Is it a crisis
overall, or in part?
When you compare K-to-12 public schools with public schools elsewhere in the
world, we're in really serious trouble. That's not to say though that we don't
have good public schools. If we didn't, my sons wouldn't be in public schools,
but they are. And the reason that many suburban public schools are doing a
good job, or at least part of the reason, is that if the parents are
dissatisfied with those schools, they can take their children and either move
to a different community or send them to private school. And the public
schools know that.
In the inner cities though, these kids are hostages. They have nowhere else to
go. As a result, the parents have absolutely no clout or opportunity to improve
their children's educational fate. They've got to be given the power to leave
the system if the system fails them. . . .
Who's your main opposition?
Our main opposition comes from the unions and the entrenched interests that
really profit from the status quo. These are individuals who are concerned
about losing jobs, concerned about losing political power. Our educational
system ought to be about the children, and any reform that helps kids get a
good education ought to be considered a good thing. But these entrenched
interests are very powerful. They dominate the Democratic Party at the
national level. They have some of the best lawyers in the country. But at the
end of the day, David will beat Goliath.
Al Gore's first education commercial is an anti-voucher commercial.
Al Gore sent his own kids to private schools. For him to argue against school
choice for less fortunate people is one of the most brazen acts of hypocrisy.
What those commercials show is that he is an utter and total hostage to the
teachers' unions, and that as president of the United States, he will not do
anything to promote genuine education reform.
Texas Governor Bush is now running for president, and supporting vouchers
very strongly. But oddly enough, from my point of view, in Texas we found he
didn't really push vouchers. Were you a little disappointed in the governor's
Governor George W. Bush recognized that it was going to be a very tough sell in
the legislature in Texas, and as a result, he kept his political powder dry,
which was disappointing. By contrast, here at the federal level, Congress has
already passed a tax credit for educational expenses for all Americans. It's
passed a school choice program for the District of Columbia, only to have those
programs vetoed by President Clinton. I think any Republican in the White
House is going to be able to take a very successful step to implement school
choice for all Americans. . . .
The Republicans consistently have fumbled away golden opportunities to steal
the crown jewel of the Democrats' policy agenda, which is education. The
Democrats cannot go where the Republicans can go, because they're hostages to
the teachers' unions. The Republicans can promote greater choice in education,
greater accountability in education. But time and time again, they have failed
to articulate that--failed to take that message to the inner city where they
could expand their base dramatically. Who knows what will happen in this
A recent opinion piece in the New York Times suggests that this
voucher issue in the inner city is Gore's Achilles heel. But the piece also
said that Gore could do for education reform what Clinton did for welfare
The Democrats will simply never go there, because their most powerful
single constituency has one issue that they will never agree to, and that is
school choice. For better or worse, this is an issue where Republicans, working
with some renegade Democrats who care more about kids than unions, are going to
make this issue happen.
When you look at polls . . . you often see a parent say, "Yes, public
schools are having serious problems, and yes, if you explain to me what a
voucher is, I'll probably be for it. But my kids' school is fine."
The neat thing about school choice is, is if your child is in a good school,
there's no need to move your child. But you will always have the power to do
so if you need it. "One size fits all" doesn't work with everything, but it
works at least as well. And having the choices available is just as important
as exercising those choices.
Ninety percent of American kids are in public schools. There are a lot
of those kids--the children of the baby boom. If we change over to a voucher
system, there are not that many private schools. Aren't you going to have to
create a whole huge number of private schools, and do so fairly quickly?
If we were designing an education system today from scratch, it wouldn't look
anything like the system we have, where kids are warehoused in old schools with
very little technology. We're going to see education changing pretty
dramatically, and the lines between private schools and public schools are
going to blur, as private schools receive public funding. Public schools will
become less regulated and more able to act like autonomous schools, focusing on
their students rather than on political interests. That day will be
hastened--and I think it's a good day--when we give parents control of the
education funds that are meant for their children's education. One of my
favorite criticisms of school vouchers is that they are not sufficiently large
enough to purchase a decent education. I am willing to cave on that issue and
make them larger.
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is "choice" the answer? ·
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