________________________________________  THE VERMONT EDUCATION REPORT July 01, 2002 Vol. 2, No. 27 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯  Covering education news in Vermont and beyond... Informative, provocative, unique... Published by Vermonters for Better Education  VBE is a nonprofit, nonpartisan organization whose mission is to enlist parents and the public at large in achieving quality educational opportunities for all the children of Vermont by monitoring the state of education in Vermont; promoting the value of educational freedoms for all parents; and giving parents the evaluative tools with which to identify excellence. Libby Sternberg, executive director: MAILTO:LSternberg@aol.com * * * SPECIAL EDITION: U.S. SUPREME COURT RULING ON VOUCHERS * * * COURT RULES ON VOUCHERS: NOW WHAT? Thursday's U.S. Supreme Court ruling that vouchers to religious schools do not violate the First Amendment is already having repercussions across the country. School choice supporters in Colorado and Illinois are beginning to push for voucher programs. What about in Vermont? Vermont is one of several states where the legal battle is not yet over. While the U.S. Supreme Court removed federal constitutional obstacles to vouchers to religious schools, the Vermont Supreme Court in 1999's Chittenden case placed another obstacle in the road to educational freedoms. In that case, parents in the tuition town of Chittenden asked for their children to be tuitioned to a nearby Catholic high school. Although the local school board said yes, the state objected and the case went to court. In 1999, the Vermont Supreme Court justices ruled that regardless what the federal constitution says, the Vermont constitution forbids taxpayers being compelled to support religious institutions, and therefore tax dollars could not be used to tuition (or voucher) students to religious schools. This ruling, by the way, would seem to prohibit tax dollars from being used in a variety of other religious institutions - from historical preservation grants to churches to grants to attend religiously-affiliated colleges. However, no one has questioned (yet) those practices. How can the Chittenden ruling be overcome so that Vermont parents can access the promise of the U.S. Supreme Court ruling? There are several ways, one of which would be to begin the lengthy constitutional amendment process. Another would be to craft legislation that would satisfy the court - a difficult task at best. The third possibility is to go back to court and ask another question: if the federal constitution is not violated when parents use public funds at religious schools in an otherwise neutral choice program, does it then violate the constitution to EXCLUDE religious choices from an otherwise neutral program? In other words, if the only reason an otherwise eligible school is excluded from a voucher program is because the school is religiously-affiliated, is this discriminatory? This will most likely be the next legal battleground, not just in Vermont but in numerous other states with so-called "Blaine amendments" in their state constitutions. These amendments forbid the use of public funds for sectarian schools. Although Vermont's constitution does not have a Blaine amendment, the state's Supreme Court interpreted the constitution in the Chittenden case as if the state did have such an amendment.  LEGAL ANALYSIS OF THE COURT'S RULING The following are paraphrased notes from a summary by Clark Neily, senior attorney for the Institute for Justice <http://www.ij.org>, the public interest law firm that helped litigate the Cleveland case: *** The key issues in the decision are: 1. How the Justices voted. Although the decision went 5-4, the most important thing to note is that all five justices voting to uphold the program joined in all of Chief Justice Rehnquist's majority opinion. This is important because it means that the rationale set forth in Rehnquist's majority opinion constitutes binding Court precedent... Again, because all five justices joined the majority opinion in Zelman, not only does the Court's ruling (i.e., that the Cleveland voucher program is constitutional) have the force of law, but so does the reasoning it used in arriving at that conclusion. The justices voting to uphold Cleveland's voucher program were: Rehnquist, O'Connor, Scalia, Kennedy, and Thomas. Those voting to strike down the program were: Stevens, Souter, Ginsburg, and Breyer. 2. Key issues. Among the most important features of this decision are: (i) the fact that the Court considered all of the educational options available to parents in Cleveland (i.e., regular public schools, charter schools, magnet schools, private nonreligious schools, private religious schools, and -- had they chosen to participate -- public schools in adjoining districts); and (ii) the Court's refusal to accept the idea that whether a school choice program is constitutional turns upon the percentage of children enrolled in religious schools. 3. Choice and neutrality. The specific question before the Court was whether Cleveland's voucher program had the impermissible "effect" of advancing religion. The Court clearly held that it did not. Instead, the Cleveland program "is part of a broader undertaking by the State to enhance the educational options of Cleveland's schoolchildren." Choice opponents argued that because 96 percent of children using vouchers in Cleveland were enrolled in religious schools, the program was not neutral in its effect and in fact was designed to encourage parents to choose a religious option. The Court soundly rejected that argument, for several reasons. First, the Court made clear that all of the educational options available to parents in Cleveland must be considered in determining whether parents selecting religious schools did so as a result of "true private choice." This means that the existence of alternatives such as tutoring assistance for public school children, magnet schools, charter schools and non-religious private schools must be considered... Moreover, Chief Justice Rehnquist specifically notes the fact that the percentage of private schools participating in the Cleveland voucher program that are religious (82 percent) is virtually identical to the percentage of private schools that are religious in the whole state of Ohio. So it is nonsensical to argue...that the Cleveland voucher program somehow discourages nonreligious private schools from participating. 4. Incentives. The Court also rejected the notion that the Cleveland voucher program provided an incentive for parents to choose religious schools. If anything, the program favors nonreligious options because it funds community and magnet schools at a much higher rate than voucher schools. Furthermore, all of the school choice options available to parents in Cleveland are free for them except for the voucher option, a portion of which they must pay for themselves. Accordingly, the program does not create an impermissible incentive for parents to choose a religious option, nor would any reasonable observer familiar with the context and history of the program perceive that it does. That means there is neither the reality nor the appearance of official government endorsement of religion. 5. Shifting percentages. The majority takes the dissenting justices to task for focusing on the fact that 96 percent of children using vouchers in Cleveland attend religious schools. First, as noted above, that figure improperly fails to consider the non-voucher school choice options. Second, the figure has changed over the years, and will almost certainly continue to change in the future. In footnote 5, Rehnquist specifically notes how nonreligious private school participation increased dramatically in Milwaukee once the court challenge there concluded. 6. Nyquist distinguished. Finally, the majority rejects the attempt to apply its 1973 Nyquist decision, which struck down a voucher-type program that was specifically designed to assist parochial schools in New York State. That program was open only to parents whose children were already enrolled in private schools, unlike Cleveland's program, which is open to all parents. Because the program at issue in Nyquist did not give all parents (i.e., public and private school) a free and equal choice between religious and nonreligious options, it was not a "true private choice" program. For the reasons stated above, Cleveland's program does offer true private choice, and that's why it does not violate the Establishment Clause. 7. In sum. The Court wrote in very broad terms, which means that states have broad discretion to craft programs that (i) direct funding based on true private choice; and (ii) include religious schools among an array of options...  WHAT OTHERS ARE SAYING THE CLEVELAND PLAIN DEALER: "The U.S. Supreme Court acted in the best interests of Cleveland students yesterday - and in so doing, served schools and families nationwide... "Voucher critics insist that allowing students to attend parochial schools at public expense amounts to governmental endorsement of religion. They add that research to date shows, at best, mixed academic results. Yet no one contradicts the overwhelming evidence that parents of students in voucher programs report far more satisfaction with their children's educational experiences in private schools. "The notion that parents should have a major voice in their children's education is as basic as the idea that a parent is a child's first and most important teacher... "...More districts and states should explore programs like Cleveland's, try new methods and thus expand the public's knowledge of what works..." Read the entire editorial at (if the link breaks at the end of a line and doesn't work, copy and paste the whole link into your browser): <http://www.cleveland.com/printer/printer.ssf?/xml/story.ssf/html_standard.xsl?/base/opinion/102525678960030.xml> *    *    * WASHINGTON POST: "In affirming yesterday the constitutionality of Ohio's use of vouchers in Cleveland -- one of the country's most dramatically failed school systems - the Supreme Court's conservative majority rightly created wiggle room for states, localities and potentially even Congress to try carefully designed voucher programs... "... There have long been governmental subsidies that support sectarian organizations, including schools. And the Cleveland program does not give money directly to religious schools. The vouchers go to parents... "... It's essential to try new approaches, from how individual public schools should be run to whether private school options should be available, and then to measure the results. Vouchers may offer answers for some children..." For the full editorial, go to: <http://www.washingtonpost.com/wp-dyn/articles/A58706-2002Jun27.html> *    *    * MIKE LYNCH OF THE REASON FOUNDATION (this column appeared in the June 29 Burlington Free Press): "In a country that relies on publicly funded vouchers to help pay for higher education and pre-school, the only question people will have decades from now is why First Amendment concerns were ever an issue. Few worry that the state is supporting religion when a college kid spends a Pell Grant at Georgetown or Notre Dame. And government granted child-care vouchers are spent at religiously run daycare centers and preschools with nary a second thought. "The issue of extending choice to low-income families will baffle as well. Most middle- and upper-income Americans already exercise school choice. Most typically, they exercise it when deciding where to purchase a home (just ask any real estate agent). They also exercise it by reaching into their pockets and paying for private schools when the government-run institutions don't meet their needs... "...school choice will not destroy public schools. Most people already enjoy a modicum of choice and most Americans therefore will not suddenly flee their schools. Where people have choice, consumers are in charge, and the schools, predictably, are higher quality. Publicly funded scholarships extend this control to low-income Americans. With money in hand, thousands of more people will be empowered to demand better performance from their public school, or take their business elsewhere. And after today, no one can argue that such a state of affairs is unconstitutional." For the entire column, go to: <http://reason.com/ml/ml062702a.shtml> *    *    * U.S. EDUCATION SECRETARY ROD PAIGE: "Today's historic Supreme Court decision is one for America's children. It's one that can transform the education landscape in our country. The decision lifts the constitutional cloud that has been hanging over school-choice programs for years and will open the doors of opportunity to thousands of children who need and deserve the best possible education. "Expanding educational options for parents MUST be an integral part of our efforts to strengthen our schools and to leave no child behind. In communities across America, thousands of parents are clamoring for more and better options for their children. This decision will make it easier for them to seek out the best school for their children. "Giving parents greater choices and kids more chances does not hurt public education, it strengthens it and brings us closer to equality. Today's decision will help strengthen public education while giving our parents and our children more choices." Source and related references: <http://www.ed.gov/PressReleases/06-2002/06272002d.html>  CLEVELAND VOUCHER LAWYER TO SPEAK IN VERMONT Vermonters will have a chance to get a firsthand account of the U.S. Supreme Court hearing on the Cleveland voucher program when Institute for Justice attorney Richard "Dick" Komer comes to the state to speak this summer. Sponsored by the Ethan Allen Institute and Vermonters for Better Education (the publisher of this newsletter), Komer's visit will take place on July 24. He will speak at a dinner at the Holiday Inn in South Burlington about "The U.S. Supreme Court and the Constitutionality of Vouchers." Now that the U.S. Supreme Court has ruled on this topic, interest should be high, so attendees are urged to reserve a space early. The details are as follows:  VBE/EAI Summer Dinner featuring guest speaker Richard Komer, Institute for Justice attorney for parents in the Cleveland voucher case "The U.S. Supreme Court and the Constitutionality of Vouchers" Wednesday, July 24, 2002, 6:30 p.m. Holiday Inn, South Burlington Dinner will include a buffet of turkey, ham, roast beef, salads, vegetables, rolls and desserts. $30/person or $50/couple To reserve a space, send a check made out to Vermonters for Better Education to: VBE, 170 Church Street, Rutland, Vermont 05701. Call 802-773-5240 for more information. *    *    * The VERMONT EDUCATION REPORT is published by Vermonters for Better Education 170 Church Street, Rutland, VT 05701, 802.773.5240 Contact LSternberg@aol.com for more information.

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