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- Contents:
- IN THIS REPORT
Readers will find new evidence of broad support for parental freedom, descriptions of important state-level and federal developments, the Editor's View on a very helpful Wisconsin court dissent, and David Kirkpatrick's essay on "Radicals? Right."
MAJORITY OF AMERICANS FAVOR SCHOOL CHOICE
Newspapers from across the nation were featuring stories
at the end of last month on the results of the 29th Phi Delta Kappa/Gallup
Poll of the Public's Attitude Toward the Public Schools, released August
26. Although the poll shows continued strong support for America's public
schools, it more importantly states that the number of Americans who support
genuine school choice is increasing.
This year 49% of all adults surveyed said that they would support a proposal by which the government would fund all or part of the tuition for students attending private schools. Last year the percentage was 43%. 55% of parents with children in public schools said they favored the proposal. That percentage is up from 49% in 1996 and 48% in 1994.
Support is even stronger among blacks: 62% of blacks surveyed this year would favor the proposal compared with 47% of whites. This data confirms the story we ran in last month's Freedom Report, "Black Support for School Choice is Strong." Like last month's story, it once again confirms the degree to which black leadership appears to be failing its constituencies by opposing school choice.
The Blum Center has often noted that poll results are greatly affected by the wording of the poll questions. A more accurate poll question reveals the true benefits of school choice: parental freedom in education without financial penalty. A more devastating, less favorably worded poll distorts the issue, hiding the benefits of school choice behind smoke screens. The Phi Delta Kappa Poll asked this question: "A proposal has been made that would allow parents to send their school-age children to any public, private, or church-related school they choose. For those parents choosing nonpublic schools, the government would pay all or part of the tuition [as if it did not for public schools]. Would you favor or oppose this proposal in your state?" Even though this year's Phi Delta Kappa Poll question was phrased, as they are each year, in an unfavorable form, the results are more favorable than ever. (Education Week 09/03/97)
WASHINGTON D.C.
The Washington Times of August 20 reported that
Congressional Republicans are working on a proposal that would give parents
in the D.C. school system vouchers which could be used at private schools.
The proposal would also increase the number of charter schools in the city.
Representative Randy Cunningham, a California Republican and member of
the House Appropriations subcommittee on the District, led the initiative.
Rep. Cunningham then sponsored a hearing on September 4 in order to question D.C. school officials about reforming the school system. The Times of September 5 reports that Rep. Cunningham weakened his position on school choice at the hearing. In regard to the school choice and charter proposal Rep. Cunningham told D.C. officials at the hearing that he does not want "to force any system on any community that does not want one." Nonetheless, he told officials that he was "not fully satisfied" with the job they have done. The Blum Center will keep its readers informed of any developments that occur regarding this proposal. (Washington Times, 08/20/97; Washington Times, 09/04/97)
WASHINGTON STATE
The state of Washington's Public Disclosure Commission
(PDC) ruled on August 19 that a political operative working for the National
Education Association (NEA) was guilty of "falsely reporting her employer,"
"failing to timely report" in-kind contributions to defeat state ballot
initiatives, and publicly denying "knowledge of the extent to which" the
NEA was involved in state elections. The PDC penalized the operative with
a fine of $2,300, just short of the maximum.
The operative was "on loan" to the Washington Education Association (WEA) from the NEA, and was responsible for administering the Community Outreach Program (COP). Washington's Attorney General Christine Gregoire filed a lawsuit on February 12 of this year claiming that the COP, funded by mandatory WEA dues, was created solely to influence the political processes in the state with regards to particular candidates or ballot measures.
The suit stated as well that COP funds were used for contributions to political committees. It argued that the WEA improperly financed and failed to report approximately $233,000 in contributions to campaigns that were organized to defeat charter schools and voucher initiatives. The PDC's ruling against this NEA operative represents only a part of the state's investigation of the matter. (Information provided by the Evergreen Freedom Foundation.)
WISCONSIN
As expected, the Wisconsin Circuit Court of Appeals,
by a 2-1 vote, upheld the Wisconsin District Court Ruling against expanded
school choice — the proposed enlargement of the Milwaukee Parental Choice
Program (MPCP) to include many more students and to include students
whose parents chose religiously-based schools. The 4th District Court of
Appeals released its decision on August 22. The decision is no surprise,
and, indeed, is a necessary step toward final action yet to come from the
Wisconsin Supreme Court. Edward Marion, a lawyer defending the expansion
on behalf of Governor Tommy Thompson, said that it will likely take the
Wisconsin Supreme Court all of this school year to resolve the case. (Milwaukee
Journal Sentinel, 08/23/97; Education Week, 09/03/97)
As Freedom Report readers know, there is very good reason to expect from the Wisconsin Supreme Court a decision favorable toward parental freedom via school choice without financial penalty. (Please see Educational Freedom Report #46 in which we discuss the most current configuration of the Wisconsin Supreme Court.) Clint Bolick of the Institute for Justice, heading the legal defense of the expansion, has stated that the defense will file a formal appeal to the Supreme Court very promptly.
One aspect of the Circuit Court's action is unusual and welcome, however. Judge Patience D. Roggensack wrote a strong, energetic, and detailed dissenting opinion which should help all subsequent deliberation. For a broader discussion of the Circuit Court's ruling and Judge Roggensack's dissent, please see the Editor's View below on "A Rightful, and Useful, Dissent."
In reaction to the Appeals Court decision Milwaukee's Lynde and Harry Bradley Foundation offered for the second year in a row to help provide the funds necessary to cover the private school tuition costs of the children who were affected by the injunction that halted MPCP's expansion. The Bradley Foundation offered to match donations, dollar for dollar, of up to $2 million to Partners Advancing Values in Education (PAVE). PAVE is Milwaukee's private scholarship organization. PAVE supports about 4,400 children from poor families. The average PAVE scholarship is $840 for elementary school students and $1,400 for high school students. In anticipation of the Wisconsin Supreme Court's decision on the case, the Bradley Foundation said it hopes that this will be the last time it needs to make such a gift available. (Milwaukee Journal Sentinel, 08/29/97)
Finally, we note another significant bit of news from Milwaukee: at the end of August the Milwaukee School Board voted 5-4 in favor of a new high school admission policy for Milwaukee Public Schools (MPS) which would disallow some teenagers from entering Milwaukee's public schools on the basis of poor attendance, behavior, and academic achievement. Is this not the very kind of "selectivity" criticized by defenders of the public school's educational finance monopoly? (Milwaukee Journal Sentinel, 08/31/97)
NATIONAL NEWS
Senator Paul Coverdell and Speaker Newt Gingrich introduced
companion bills on August 1 that would create "A+ accounts." Parents would
be able to deposit up to $2,000 into A+ accounts, free of federal income
tax, which could later be withdrawn in order to pay for private or parochial
school tuition costs. Senator Coverdell had attempted to pass the proposal
in July as part of the national five-year balanced budget and tax package,
but President Clinton refused to sign the package unless the Coverdell
language was stripped from the bill. Determined to pass the proposal, Sen.
Coverdell reintroduced it as an independent bill. Speaker Gingrich showed
his support by introducing a companion bill. On August 9, during the GOP's
weekly radio address, Sen. Coverdell promised that this initiative will
be a priority this fall. (Education Week, 09/03/97)
Announcement
¨ Those interested in
school choice in Oklahoma will be pleased to know that the Committee
for Oklahoma Educational Reform (COER) now has its own home page, available
to any interested on the internet. The page can be accessed at this address:
http://www.telepath.com/crcoombs.
Acquisitions
¨ Alan Bonsteel, Blum
Center correspondent and school choice activist from California, and Carlos
A. Bonilla have published a new book: A Choice for Our Children:
Curing the Crisis in America's Schools. Contributors to the book
include John E. Coons, Stephen D. Sugarman, and Milton Friedman. The authors
of this book have provided great incentive for Californians to unite and
finally dislodge the monopolistic status quo. This good book can
contribute powerfully to that cause.
¨ The Blum Center has acquired copies of two significant items recently in which our readers may have an interest. First, we have a copy of the 29th Phi Delta Kappa/Gallup Poll of the Public's Attitude Toward the Public Schools, mentioned in the story on page one. Second, we now also have a copy of the study entitled "Test Scores from the Cleveland Voucher Experiment" by Paul Peterson, Jay Greene, and William Howell. This study, which states that participants in the Cleveland Scholarship Program show moderate gains in reading and greater gains in math, was mentioned in Freedom Report #49.
Noteworthy Items
¨ On August 16 during
the GOP's national weekly radio address, Minnesota Governor Arne Carlson
promoted parental freedom on behalf of the GOP: "Whether public, private
or parochial, every family in America should have the right to send their
children to the school that best serves their child's needs." (Milwaukee
Journal Sentinel, 08/17/97)
¨ The New York Times ran a story on August 22 entitled "Record School Enrollments, Now and Ahead." The paper reported: "The historic wave of students jamming the nation's classrooms is moving from the elementary schools to the high schools, bringing with it increased costs of new schools, added problems in finding qualified teachers and potentially enormous higher education costs." The New York Times took this information from Secretary of Education Richard Riley's annual report on education, which was delivered on the 22nd. Riley's conclusion, passed on without question by the New York Times, that increased enrollment necessarily means increased costs is in this case another example of thinking in monopolistic categories. Through school choice programs the nation's increased enrollment substantially could be absorbed by private schools, no doubt with much greater efficiency.
Freedom Report readers know that I do not favor or appreciate the American form of minority-rule: judicial review masquerading as legal interpretation when it is, in fact, just minority-rule over legally-constituted majority actions. When courts negate the political judgment of the majority, they are simply playing the role of non-responsible mini-legislature. For a fuller discussion of this uniquely American problem, see, e.g., Freedom Report #40.
The matter of the Milwaukee Parental Choice Program (MPCP) is a perfect case in point. The original MPCP was enacted in 1989, and enabled poor Milwaukee parents of up to 1,500 students to pay for attendance at non-sectarian private schools with state vouchers. This program, excluding religious schools and thus greatly limiting parental choice, we call MPCP I. It was opposed vigorously by all the "usual suspects" of the educational finance monopoly (EFM): educational trade unions, educational bureaucracies, et al. But its sponsors persevered, MPCP I was court-approved, and has been operating successfully since its inception.
The November, 1994, Wisconsin elections produced majorities in both legislative houses who were a) not beholden to EFM, b) aligned with a Governor who was a parental freedom advocate, and c) well-disposed to expanding MPCP in two senses: first, by greatly raising the number of eligible students; second, by authorizing the use of vouchers at religiously-based schools. What do we have at this point? A whole representative system, legislative and executive, carrying public endorsement and fully empowered by the legitimizing effect of majority popular support. With the Governor's initiative, the legislature then proceeded to enact what we call MPCP II with the numerical expansion and applicability to religiously-based schools described above. In a well-ordered polity, that would have been definitive. But in the U.S., and Wisconsin, where courts have been permitted to usurp legislative authority, MPCP II was immediately impeded by court intervention. The lowest of state courts could and did preliminarily obstruct it; that obstruction was appealed to the state Supreme Court which split 3-3; the case then returned to the original court which, not surprisingly, affirmed its original decision through tortured reasoning. The case has now proceeded through the Wisconsin Court of
Appeals, District IV, which by a vote of 2-1 upheld the lower court's bizarre opinion. (Citations below are from the August 22, 1997, Court of Appeals, District IV decision, No. 97-027, Wisconsin vs Benson.) During the upcoming year, the state Supreme Court will, once again, judge the issue. For reasons explained in Freedom Report #46, we have excellent cause to believe MPCP II will be upheld at that level.
The legalistic hoops, sad and illusory as they are, must be jumped through, as long as we permit judicial review to prevail. Since that is true, this also is: the legal defenses of parental freedom in education must be well-constructed and effectively deployed. And that is why I am calling attention to the outstanding, powerful, and logically conclusive dissent of Circuit Court Judge Pat Roggensack in the MPCP II case. She has provided an island of sanity in the silly seas of politics-posing-as-legalism, and she has provided a splendid foundation on which the Wisconsin Supreme Court can build what we hope will be its affirmation of parental rights in education.
In supporting the lower court's judgment that MPCP II was unconstitutional, the two-person Circuit Court majority narrowed its "reasoning" to one point only: that MPCP II "violates the religious benefit clause of Article I, section 18 of the Wisconsin Constitution, . . ." (P.2) Thus, the Circuit Court ruling makes no case that MPCP II violates the U.S. constitution's religious freedom provisions. Its only substantial reference to the U.S. constitution is the Court's assertion that the Wisconsin constitution's religious freedom provisions do not have to be read as congruent with or subordinate to related U.S. constitutional provision. This permits the two-person majority to imagine that, whatever the U.S. constitution may now say via the pro-parental freedom interpretations of Witters, Mueller, & Zobrest, MPCP II fails on purely Wisconsin grounds, i.e., violates Wisconsin Article I, §18.
This is interesting from many perspectives, not the least being that MPCP II was a Wisconsin product of a Wisconsin legislative process which is itself filled with attorneys all of whom are as devoted to the Constitution as the Court is. Judge Roggensack made the point powerfully: "The process by which parental choice was enacted was proper. The bill was not smuggled . . . through the legislature." Rather it was extensively debated, exposed to intensive public hearings, and thoroughly aired. The Judge, accordingly, concluded that "Parental Choice is presumptively constitutional and the Respondents [EFM defenders] bear the heavy burden of proving a constitutional violation beyond a reasonable doubt." (P. 35)
But the two-person majority's decision is especially interesting because of other realities elucidated by Judge Roggensack: first, that the Wisconsin constitution's religious freedom provisions, insofar as they are pertinent to MPCP II, clearly must be interpreted in the light of prevailing U.S. constitutional interpretation; second, she shows conclusively that MPCP II fits comfortably under Witters, Mueller, & Zobrest, interpretation; and, third, she shows convincingly that even under a Wisconsin-only interpretation, MPCP II does not violate Wisconsin Article I, §18.
We recognize that jurists are making policy when they judge on the validity of properly-made law. As unfortunate as such capacity is, at least we need to acknowledge when the jurist "gets it right," and Judge Roggensack gets it right repeatedly. To illustrate, I will cite a few of her more compelling policy advisements, in which her prudence is most evident. To the absurd claim that aid to parents violates the Wisconsin prohibition of "compelled support" to religion, Judge Roggensack replies: the "compelled support" prohibition ". . . is to prevent the State from making pro-religion choices for its citizens. It is not to prevent parents from making pro-religion choices for their children. The State must remain neutral in regard to religion, neither preferring nor evincing hostility towards it. Parental Choice maintains that neutrality. To paraphrase Justice O'Connor in Witters, no reasonable observer is likely to conclude that by enacting Parental Choice, the State of Wisconsin is endorsing, promoting, compelling or preferring a religious practice or belief." (P. 34) The key word: "reasonable," to which one might want to add "and disinterested." Many opponents of parental freedom may be "reasonable" in a broad sense, but if they have a self-interest concern for the maintenance of the monopoly they may conclude "unreasonably."
Continuing her common-sense critique of the lower court's decision against MPCP II, Judge Roggensack concludes by pointing to a powerful fact: there is nothing unique or even unusual about state provision of benefits which, through citizens' free acts, may have an incidental religious impact. For example, she notes: "1) the choice a citizen makes when he is treated in a religiously affiliated hospital, prays with the chaplain each day, and the State pays the hospital's bill; 2) the choice a parent makes to have his/her child cared for in a daycare which is operated by a religious organization, and the State pays the daycare bill; 3) the choice students make to attend sectarian colleges, . . ." using State-provided tuition grants to cover part of the cost. In all such cases (and others elsewhere cited) ". . . the State is not advancing religion through the social welfare benefit it provides. It is the individual citizen who chooses to use a state social welfare benefit in a setting that has a religious connection." (P. 37)
The point of this is clear and of great importance: that which distinguishes parental freedom in K-12 education from parental freedom in such areas as the judge cites is not violation of religious protections. What distinguishes it is the fact that huge, very well-funded, vested interests oppose parental freedom because it threatens their monopoly of financial control. That is the crowning fact that will be found when all the smoke screens are cleared away. Judge Roggensack's dissenting opinion will help get to that finish line.n
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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 |
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