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In the ongoing voucher wars, the title of a recent book, no one defending the cause has more battle-scars than the book's author, Clint Bolick, cofounder, vice president, and national director of state chapters for the Washington-based Institute for Justice (www.ij.org). One of the Institute's slogans tells it all, "if you have a school choice law you have a school choice lawyer."

For free.

With Bolick usually serving as lead attorney, the Institute has defended school choice laws and programs around the nation, including the one in Milwaukee, ultimately upheld by the Wisconsin Supreme Court but not reviewed by the U.S. Supreme Court and thus decisive only in the Badger State.

A far more important court test was Ohio's Scholarship and Tuition Program for the Cleveland School District. This the U.S. Supreme Court did review and, in a ruling June 27, 2002, in essence upheld vouchers, tax credits, and other forms of educational choice as consistent with the provisions of the Establishment Clause of the U.S. Constitution providing such aid was generally available and the decisions regarding its use were privately made by individuals.

The legal battle defending the constitutional right of parents to determine how their children will be educated, has not been an easy one. As Editor George Clowes reported, in a favorable review of Voucher Wars in the July issue of School Reform News (SRN), "Bolick and his colleagues at the Institute for Justice litigated 16 school choice cases, encompassing 40 court arguments and 80 briefs totaling some 2,400 pages." This was done with far fewer resources than the opposition, primarily the teacher unions. What the Bolick crew had going for them was their commitment and dedication and the justice of their cause.

As important as that Supreme Court decision is, it only marked the end of a major campaign, not the legal war over school choice. Robert Chanin, chief counsel for the NEA, Bolick's major protagonist in courtrooms around the nation, subsequently made that clear.

As cited by Clowes in his SRN review, Chanin has said, "The legal battle will not end. We will abandon the Establishment Clause, and continue to challenge voucher and choice programs under state constitutions on whatever grounds are available to us "from lofty principles such as church-state separation, to 'Mickey Mouse' procedural issues like the single-subject rule."

As brilliant as he is, Chanin's words, on behalf of the NEA, demonstrate that their opposition is total and not confined to "lofty principles." Their campaign to prevent parents of low-income children from acquiring the means to exercise their constitutional right to choose a decent education will continue "on whatever grounds are available." If it takes "Mickey Mouse" tactics to prevail so be it.

He, and those he represents, who don't subject their own children to the failing schools in which they are so determined to confine the children of others, should be ashamed.

Two months ago they filed a challenge to Colorado's new voucher program on the basis of a state constitution provision against using public funds to support religious schools. Whatever the decision, its impact will be confined to Colorado. Similar battles would have to be conducted state by state in those with similar constitutional wording, known as "Blaine Amendments." This is because of the efforts of Congressman James G. Blaine who, witwh the encouragement and active support of President Ulysses Grant, tried in 1875 to have such a prohibition placed in the U.S. Constitution. His proposal passed the House but died in the Senate.

As an aside, it's significant that Blaine and others found no prohibition, no so- called "wall separating church and state" in the nation's basic law. Nor, in fact, did the U.S. Supreme Court until 1947, in a creative interpretation based on the First and Fourteenth Amendments. Since the First dates from 1791 and the Fourteenth from 1868 both not only were in existence in Blaine's day but it was his generation that adopted the Fourteenth, yet they saw no "wall."

The days of Blaine amendments may finally be numbered. In a 2-1 decision, the U.S. Court of Appeals for the Ninth Circuit, on the west coast, has ruled that Washington State's "Blaine Amendment" violates the federal Constitution's Free Exercise Clause in the First Amendment. The U.S. Supreme Court has accepted the case for this fall's term. If the Circuit court's decision is upheld, these restrictions would be stricken from all state constitutions.

Blaine amendments have been a topic of these commentaries more than once over the years. Given the Supreme Court's forthcoming review, some consideration should be given to the origin of these amendments and the bigotry that was their source.

Part 2  |  Part 3

Copyright 2003 David W. Kirkpatrick
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