Our K12 school system is in trouble, especially in inner cities. One trial solution is currently being challenged in the highest court of the United States.

Sometime in June the Supreme Court of the United States will render a judgment that could be as influential as their 1954 ruling on Brown vs. The Board of Education, which struck down separate but equal education (Plessy vs. Ferguson, 1896) and was the beginning of the end of racial discrimination in public education.

The case is Zelman vs. Simmons-Harris (Case No. 00-1751) and deals with Ohio’s six-year-old pilot school-voucher system.

Under the program Cleveland parents can choose to use a voucher worth $2,250 toward tuition at any pre-approved private school.

The program gives preference to low-income families.

"We enacted this because we had a severe educational crisis in Cleveland," said Judith French, an assistant Ohio state attorney general who argued for the defendant on February 20th . "We had to do something about it."

The Supreme Court heard oral arguments on Feb 19th and 20th of this year.

The Ohio Supreme Court had ruled in 1999 that the program did not violate the state’s separation of church and state.

The plaintiff (Doris Simmons-Harris) sued in federal court, and on December 11th, 2000 a divided three judge panel of the 6th circuit ruled 2-1 against the vouchers on the grounds that it violates the United States Constitution’s Establishment Clause (separation of church and state.)

Federal courts have used a three-question test, as established in Lemon vs. Kurtzman in 1971 to determine constitutionality of programs under the First Amendment (Congress shall make no law respecting an establishment of religion.)

The three questions are:

1. Does the statute have a secular legislative purpose?
2. Does the statute’s principal or primary effect neither advance nor inhibit religion?
3. Does the statute foster 'an excessive government entanglement with religion?'

The statute must past all three questions to not violate the Establishment Clause.

There are currently 4,202 students using the vouchers under the Cleveland pilot program. Of those, 99.4 percent are using them at religious schools, up from 76.8 percent in the first year.

Proponents of the voucher system would argue that these numbers are skewed because the litigation has discouraged the opening of new, private, secular schools.

"The litigation has had a chilling effect on private school entrepreneurs," said French.

The Establishment clause is a red herring (but it could be an effective red herring.)

If you get a college grant or scholarship from the government there is nothing stopping you from using it at schools such as Santa Clara (a Catholic university.) Why should it be different for K12?

We also currently can take a tax deduction for charitable donations and we can choose for ourselves if those charities are religious or secular.

The argument that the plaintiffs want to use, but have no constitutional argument, is that the voucher system will take money away from public schools.

The plaintiff, Simmons-Harris, is a 48-year-old medical clerk and mother with one son left in Cleveland public schools.

"I've paid my tax money, and I believe that money should go to the public schools," she said. "We need to enhance the quality of our public schools."

Scottish economist Adam Smith wrote in his book, The Wealth of Nations, over 200-years-ago, "Where competition is free, the rivalship of competitors, who are all endeavouring to justle one another out of employment, obliges every man to endeavour to execute his work with a certain degree of exactness... Rivalship and emulation render excellency."

Throwing money at public schools has not resulted in a better education. Primarily the added budget has gone to increased bureaucracy. That’s usually what happens when you give more money to the government without improving competition.

Columnist George Will wrote, "Not long ago the education establishment promised that if we would only invest more in the nation’s schools they would produce a nation of Einsteins and Edisons. Today, we’d be pleased if upon leaving school our children have heard of Einstein and Edison."

Giving parents’ choice will not only improve the education for the children that leave public schools and go to private schools, it should also improve the public schools, forcing them to compete with the private schools.

Why is competition good for consumers but bad for those that use government services?

If the programs work, they can be expanded on, and eventually we might be able to get the government out of the business of education and into the business of funding and monitoring.

"My oldest daughter was in the 6th grade and she could not read," said Roberta Kitchen, a single mother of five who is now using the Cleveland voucher program for her last child in elementary school.

"My other children were not doing well. I just could not take it any longer. There may have been some improvement in the public schools, but not enough to make a difference."

Where would you put your trust: markets, competition and parents or the government?

It is always a crap shoot guessing which way the Supremes will rule.

Court experts try to guess from the Justices’ questions during oral arguments. The more reliable method is to go with their past similar opinions and guess from there.

Establishment Clause might not be the only concern that could influence the individual justices.

Issues such as states rights, education, choice of where to put tax dollars, and free markets vs. government intervention could all influence the justices

. Barring some compromise cobbled together by the justices, the predication is that Justices Ruth Ginsberg, David Souter, Stephen Breyer and John Paul Stevens will rule against vouchers. Justices William Renquist, Antonin Scalia, Clarence Thomas and Anthony Kennedy will rule for the defendant.

This would leave Sandra Day O’Connor as the swing vote.

California would not be affected by a Supreme Court ruling in favor of vouchers.

The voters of California have twice voted down voucher propositions in recent elections (Most recently Proposition 38 in 2000, which was soundly rejected 71-29 percent.) However, future voters may look at it differently should pilot programs work in Cleveland and other areas.

Internet resources:

• Brief history of the U.S. Constitution’s Establishment Clause
• Pro-school choice site
• Anti-school choice site (PTA)
• Official site for the Supreme Court of the United States (Nothing posted about Zelman vs. Simons-Harris yet)
• Roberta Kitchen’s story as told to Medill News Service
• USNews.com’s summary of Zelman vs. Simons-Harris
• The Adam Smith site