- On the 25th of August the
Wisconsin Supreme Court granted a temporary injunction halting the implementation
of the new Milwaukee Parental Choice Program (MPCP). In order for the MPCP
program to be effective, it had been necessary for the independent schools
enrolling choice students to begin the process of enrollment and, in a
few cases, even the process of schooling itself prior to the Supreme Court's
temporary injunction.
The result of that timing was that for a moment we witnessed the achievement of parental liberation from educational finance monopoly, only to have that same liberation suddenly stopped, not permanently, but temporarily. The reason for sending out this special Report noting the events of August 25th and thereafter is simply because the importance, meaning, and potential of the injunction are being misinterpreted by various segments of the press and many opponents of school choice, the defenders of educational finance monopoly (EFM). In order to set the facts straight and in order to offer an analysis of those facts, I have decided to send along the following comments on the Court action and its aftermath.
As noted, the essential fact is that without comment, and with only a one sentence action, on August 25 the Wisconsin Supreme Court accepted the request of the American Civil Liberties Union, the teachers' unions and related organizations, and granted a temporary restraining order on MPCP implementation. Thus, the Wisconsin snowball is momentarily suspended in mid-air.
EFM's status quo defenders, naturally, attempted to blame school choice advocates for having been successful in the legislative process. "The governor and the private proponents of religious choice are the ones who put the kids at risk," said Chris Ahmuty, Wisconsin chief of the ACLU. (Journal Sentinel, 08/26/95) The reality? After years of effort, and painstaking forging of a new political consensus in support of a school choice initiative, certified through open deliberation in a responsible legislative process, the Governor and all his allies and supporters had absolutely no reason to paralyze themselves in deference to a possible court intrusion.
Representative Annette Polly Williams saw the hollowness of the ACLU effort to blame the victims for wanting the justice and liberation which school choice can bring: "Every time there's legislation to help people on the bottom, we always say 'let's wait.'" And Dan McKinley, Executive Director of Parents Advocating Values in Education (PAVE), Milwaukee's greatly productive private choice program, criticized the ACLU comment as an "I told you so" effort, in which poor parents and their children were the pawns. He noted that choice parents were always told of the possibility of a temporary injunction, but "A lot of parents were willing to risk a lot because they had nothing to lose" — they had given up on Milwaukee Public Schools as the appropriate educational environment for their children. (Journal Sentinel, 08/26/95)
To see the drastic discomfiture and tragic dislocations suffered by Milwaukee's poorest parents is to understand, perhaps more dramatically than anything lately has helped us to understand, exactly how humanly destructive is the policy known as educational finance monopoly. EFM's status quo defenders, the defenders of financial interest and misplaced apprehensions about religion, were not satisfied with the ultimate test of merits which constitutional appeal would have brought. They sought a preliminary injunction to block MPCP while the merits were tested. Thus the preliminary injunction does not in any respect touch on the merits of the constitutionality of MPCP provisions. School choice advocates can be entirely confident that those provisions, informed as they were by prevailing United States Supreme Court rulings, finally will be acknowledged as constitutional and conforming to the precedents established in the Witters, Miller and Zobrest cases in particular. Even more important, MPCP can be seen by any objective observer as an entirely appropriate and prudent effort by Wisconsin policy-makers to enable parents to fulfill their obligations to their youngsters.
Despite this, it is not surprising that EFM's defenders would attempt a temporary blockage of MPCP, because they would hope to derive from such a victory confusion and beclouding of the issues. And they would hope to interrupt the momentum which had begun to develop around school choice in recent months, particularly in Wisconsin and Ohio and prospectively in Pennsylvania and elsewhere. Thus, for example, the elation expressed by Mordecai Lee, vice chairman of the Wisconsin Coalition for Public Education: "In a sense, this is the first piece of good news since [Governor] Tommy [Thompson] announced in January that he was going to include this in his budget. Notwithstanding every effort we made to educate the Legislature, we just totally fell on our faces and got steamrolled." (Journal Sentinel, 08/26/95) Having lost the battle through the democratic, majority-forming legislative process, EFM's defenders escaped to the "last refuge of political scoundrels": a court willing, at least temporarily, to intrude on policy-making.
From the standpoint of status quo defenders, no doubt, it seems better to protect the status quo as long as possible, even if you have a private suspicion that ultimately you will not be successful. Maybe you can get lucky during the process of court hearings and at least somewhere along the way cause greater impediments to the breaking of educational finance monopoly through school choice without financial penalty. And in the meantime, who cares about the grief visited on the poorest of the poor as a result of the invocation of preliminary injunctive relief? There is no surprise in EFM's desperation to halt or impede parental freedom through school choice. Seen from their unenlightened perspective, indeed, what would we expect?
It is, of course, too bad that the Supreme Court gave in on a temporary injunction, but even there one should not be surprised. It is important to remember, looking at the development of political consciousness in Wisconsin and in Ohio and elsewhere in recent months, that, as pointed out in Educational Freedom Report #25, the real lesson of Wisconsin was the developing immunization of Wisconsin's legislators from the wiles and ways of educational finance monopoly and their increasing freedom from the chains that once bound them. The state Supreme Court, by contrast, though politically involved via judicial review, is politically in the backwaters. It is insulated from the kinds of ongoing political dialogues and rising political consciousness from which Wisconsin legislators have been able to benefit in recent months.
The American practice of a nonresponsible, nonaccountable court being a policy maker, via the policy of judicial review, is with us all days and is with us now one more time. It is an approach to policy-making which is seen by most of the rest of the democratic world to be incongruous and inadvisable, but it remains with us. Therefore, we have to witness from time to time the intrusion of courts into the political arena even though they are not in any normal sense politically astute and comprehensively politically responsible as legislatures are. Given this, it is not surprising that the Wisconsin Supreme Court, unlike the legislature, could be temporarily thrown off the horse by the charge of unconstitutionality and at least the fright that they should not permit MPCP to be inaugurated until the constitutionality question had been tested. That is what "social inertia" means: it makes blocking reform easy. But though no surprise, the temporary injunction has produced tragic results.
By agreeing to grant a temporary injunction when no such action was necessary, the Court became the unwitting agent of education finance monopoly's radical injustice. EFM's general injustice — its deprivation of what is owed to parents — is aggravated and accentuated in the case at hand because of MPCP's particular content and focus: it concentrates on the needs of poor parents in the central city, the parents most desperate to be able to determine the best educational environment for their children. MPCP gives these parents an ability and capacity that they have never had and never will have without some form of school choice. Thus, the most disadvantaged parents were those on whom the immediate impact of the temporary injunction has been visited. They have been told, in effect, that they will not be given the means to choose and to fulfill the responsibilities that we assign to them as parents for their children.
The love of those parents, even under the uncertainty of knowing that obstruction would be attempted by EFM's status quo defenders, was manifested in the effort of thousands to choose the best schools under MPCP provisions. They demonstrated their love. Educational finance monopoly's lack of concern for that love, and its serene willingness to quash the manifestation of that love — that, too was demonstrated. And that is the one contribution this unfortunate episode can make to parental freedom through school choice without financial penalty, depending on how certain questions are answered in coming days. Will school choice workers use the sad, humanly-costly, lessons which the temporary injunction offers and redouble their efforts? Will they use it as further evidence of the imperative need to undo educational finance monopoly, for the welfare of all parents and children and especially poor parents and children in the first instance? Or will those school choice advocates be, as the court was, temporarily distracted by the church-state red herring? If the answers are "Yes," "Yes," and "No," good may yet come from a very bad beginning.n
View
a different issue of the Freedom Report
Return to Blum Center
Home Page
|
The Blum Center grants full permission for all of its documents to be copied, in part or in whole, to extend the reach of the Center's messages and information. We appreciate it when our readers keep us apprised of state and national developments in the area of school choice, particularly legislative developments. Any Blum Center documents not available on our web page may be obtained by contacting us by telephone, fax, or mail. Virgil C. Blum Center for Parental Freedom in Education |
 |