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Event Transcript
December 13, 2000

New York City Conference on School Choice

Panel Discussion: Choice and the Constitution: Debating New and Old Questions about the Constitutionality of Vouchers

What do recent court decisions tell us about the strengths and weaknesses of arguments regarding the constitutionality of publicly funded school choice programs? How might programs be designed to anticipate such objections? Panelists will debate these questions and others.

    Clint Bolick, Institute of Justice
    Robert Chanin, National Education Association
    Charles Fried, Harvard Law School
    Elliot Mincberg, People for the American Way
    Moderator: Joseph Viteritti, New York University

MR. OLSEN: Thank you Mayor Schundler. We are now going to move straight to our next panel, Choice and the Constitution: Debating New and Old Questions about the Constitutionality of Vouchers. So if I can ask the panelists to come up. You are already; your locations are already pre-staged here as certain people are being moved around.

I think this is particularly poignant panel given Mondayís decision holding that the Cleveland voucher program is unconstitutional, that the panel of the Sixth Circuit US Court of Appeal is on a two to one vote reach. This question is live because of the Sixth Circuits panel decision. Itís likely now to end up before the Supreme Court if not in the next term then probably in the following term. And we are privileged to have the most knowledgeable people in the country about these issues debating before us today. And the moderator of the panel will be Professor Joseph Viteritti of NYU and I will turn over the introduction of the panel to Professor Viteritti.

Thank you.

MR. VITERITTI: Iíve been told to watch the clock. Last Monday when the US Supreme Court was hearing oral testimony on the Florida election case Federal Appeals Court in Ohio quietly issued a decision that affirmed a lower court decision, which declared that the Cleveland voucher case, the Cleveland voucher program violates the establishment clause of the first amendment. This is one of the many voucher cases that has worked its way through the Federal and State courts over the last seven or eight years. Weíve seen litigation in Ohio. Weíve seen litigation in Wisconsin. Weíve seen litigation in Florida, in Illinois, in Arizona, in Maine and Vermont. But most people who watch these cases closely believe that this is the one that will finally make its way to the US Supreme Court. The high court had indicated a very special interest in this case a year ago in November when it interceded to stay an injunction issued by a lower court, which would have ended the program while the case worked its way through the courts.

Today we have a very distinguished panel available to discuss both this case and the broader constitutional issues. This group is well informed. Several of them are very intimately involved in both the Ohio cases and proceeding cases and they represent a variety of prospectives.

I am going to introduce them all in the beginning for the sake of time. And I will introduce them to you in the order in which they will speak.

Our first speaker is going to be Professor Charles Fried who is a Professor at Harvard Law School from 1995 to 1999.

MR. FRIED: Eighty-five.

MR. VITERITTI: I am talking about your other job. Youíve done too many things in your life. From 1995 to 1999 he was Associate Justice of the State Supreme Court of Massachusetts and before that from 1985 to 1989 served as Solicitor General of the United States. He represented the Reagan Administration twenty-five different times before the State Supreme Court.

Bob Chanin is Chief Counsel for the National Education Association, the largest teacher union in the country. He is a senior member of the Washington, DC, law firm of Bret, Harth and Kyser [phonetic]. And he was lead counsel in the Ohio voucher case and he has served in many of the other cases that have made their way through the State and Federal courts.

Clint Bolick is Vice President and Director of Litigation at the Institute of Justice, which he co-founded in 1991. Clint represented parents in the Ohio voucher case that I just spoke about and has also been active in much of the litigation or all of the litigation that I know of regarding vouchers and tax credits that have to do with school choice.

And finally Elliot Mincberg is General Counsel and Education Policy Director of People for the American Way. Elliot was a partner at a Washington law firm of Hogan and Hartson and he was Co-counsel in the Ohio case and has, again, been involved in every of the other cases that Iíve mentioned. In the spirit of disclosure I should mention that I was also an expert witness in the Ohio case and I testified on behalf of the Attorney General.

We will allow each of our speakers seven minutes. Iíve been told to enforce that limit very strongly, which I will. And we will probably have about fifteen minutes after that to open up the floor for questions and short comments.

So we will start with Professor Fried.

MR. FRIED: Thank you very much.

It always surprises and somewhat saddens me that I should have to be debating this issue with my friends, for instance, my former clients the American Civil Liberty Union on this issue because I would have thought we would be on the same side. I would have thought we were both members of the party of liberty, but apparently not.

The objections that I hear to school choice plans are four. First it is an objection that government loses control over the education of children. Second, that government run schools are a place where our common citizenship is learned and experienced. Third, that voucher plans might unravel the public commitment that government provided education is the most highly motivated families get out of the government run system causing it to diminution quality and thus causing even more families to leave. And fourth, that voucher plans cannot tactically or constitutionally exclude church related schools. And that providing this indirect funding to church related schools it is an establishment of religion forbidden by the first amendment.

Only the last of these objections is a constitutional objection. The other three express policy preferences for maintaining the mere monopoly of public education by government run schools. As such, those objections have no constitutional weight at all.

So letís turn directly to the first amendment objection. The way the issue is often argued the opponents of school choice plans avoid any direct reference to the first three objections, which I suspect are the real energy behind the opposition to such plans. And instead just throw up their hands and say the constitution made me do it. School choice plans are portrayed as an attempt to circumvent a clear constitutional prohibition.

So what is this constitutional prohibition? The first amendment says congress shall make no law respecting an establishment of religion. Nothing could be clearer, Jeffersonís wall of separation metaphor notwithstanding, then that this was intended only to keep the newly instituted national congress from addressing the subject one way or another either establishing a national church or disestablishing the several state supported churches, which existed before the adoption of the amendment and persisted after it. That is why in contrast to the clearly prohibitory language about interferences with free exercise of religion, speech, press and assembly the first amendment uses the otherwise inexplicable words respecting an establishment of religion. This, of course, posed a real dilemma as to how this clause of the first amendment, which in terms speaks only about what level of government should and should not address establishments of religion, can possibly be incorporated against the states via the due process clause of the fourteen amendment. That is why the court did not tangle with the issue at all until the 1947 Everson case, decades it had incorporated other provisions of the Bill of Rights into the fourteenth amendment. And when it did so it had recourse not to the text, but to Jeffersonís wall of separation metaphor.

It is also striking that this first, and in fact relatively recent, I was twelve years old, exposition of the doctrine on which the opponents of school choice must rely was a case in which Justice Black held that reimbursing the costs of bus transportation to parochial schools did not violate the establishment clause. The first cases in which the clause was used to strike down state laws was fairly gross, I think they were gross, in school religious instruction in the 1948 McCullen case and a government composed school prayer. Now you can imagine what a thing of beauty that was in 1962 in Engle Vitali [phonetic]. It was not; it really wasnít until the early 70ís, so much for this being sort of [unintelligible] in the morale the constitution made me do it. It was not until the early 70ís in the hay day of what in fairness must be called the Brennan court, was the rigorist Savanna [unintelligible] campaign against any state monies flowing to parochial schools launched. And like so much else from that brief and anomalous period it was not law by the end of the same decade that this edifice began to be dismantled.

The last gasp of this former, I hope entirely former rigorous mentality, Agra Law B Felton [phonetic] decided in 1985 was explicitly overruled in 1997. But long before that the court in several cases had allowed state aid to church related higher education, colleges, graduate schools, something which could not be explained on the grounds of the strict separation as principal attributed to Jefferson. The only basis for such a distinction were arguments of practicality and the evident fact that such state aid to higher education did not threaten the mere monopoly of government bureaucracies enjoyed over primary and secondary education. But of course these points have nothing to do with the constitution. So also has the antireligious rigorism been eroded in cases allowing a blind student to use a state grant to train to be a minister. State paid signers to assist deaf students attending parochial schools and last year in Mitchell B Helms state resources to be used to provide computers and other instructional aids to a broad range of schools public, private and church related. That decision had the support not only of Justice Connor, but also of Justice Briar. Although they did not join Justice Thomasí broadly, in my mind too broadly, worded plurality, they did emphasize the fact that the monies reached the schools as a result of a myriad of choices by individual parents. Of course that is so much more obviously so in school choice plans then in that case itself.

What is the basic constitutional principal involved after all? I think the principle is the principle of liberty, the principle on which it pains me that those who should be allied with me are allied against me. So long as it is truly parents who are choosing and not the state choosing to support church related schools, it is hard to see why the words of the constitution, which are quite indefinite on the subject to say the least, should be tortured to deny them that choice. And all the true objections are objections of politics and policy and absolutely obviously self-interest. And it is in that arena that the battle should be fought. It is my hope that that is what the Supreme Court will say when it finally addresses this subject. The court has proceeded case by case and refused to telegraph its decisions instructing lower courts not to anticipate the future. Thatís how Justice OíConnor treated other issues and thatís how Justice OíConnor has treated this issue. But as weíve seen in other cases when the issue is presented they can stand up and speak. We have seen an instance of it just quite recently. And so those who are interested in the recent Sixth Circuit case should remember that the Sixth Circuit case may very well be to this issue what Bush v. Gore in the Florida Supreme Court was to that issue.

Thank you.

MR. VITERITTI: Thank you. Next speaker is Bob Chanin.

MR. CHANIN: I have seven minutes to make an opening statement and it is clearly not possible in that time to make a cogent legal argument as to why vouchers and other choice programs are unconstitutional.

What I would like to do instead is put this issue in context by summarizing the litigation for you. And since I trust this audience, I would like to share with you our legal strategy. To do even that in seven minutes will require me to speak very quickly. So bear with me on that.

Because virtually all choice programs include sectarian private schools, our primary challenge is based on the principle of Church and State. In this regard we rely not only on the establishment clause of the first amendment to the United States Constitution, but on the counterpart religion clauses of the state constitutions, which often are far more explicit. But do not limit our challenge to this ground.

Our objective is not to establish loftily principles of constitutional law or to advance the state of constitutional jurisprudence. We have a much more practical objective, which is to prevent the implementation about what our clients believe is an inadvisable and educationally unsound program. Toward that end, we challenge these programs on any ground that is available to us. From something as fundamental as the principal of separation of Church and State to a possible procedural defect in the manner in which the program was enacted.

Against that background let me briefly turn to the case law, which for purposes of discussion can be divided into three categories. In the first category are pure voucher programs under which money is taken from the State Treasury, usually the education budget, and used to pay tuition for students to attend private schools; a majority of which are sectarian. Among the most publicized of these pure voucher programs is the Milwaukee Parental Choice Program, which was sustained by the Wisconsin Supreme Court on June 10, 1998. Although we believe the decision is in direct conflict with the US Supreme Court 1973 decision in Committee for Public Education versus Ninquist [phonetic], the high court for whatever its reasons denied our petition for review.

A similar type of pure voucher program was established in Cleveland in 1995 and we challenged it in State court under multiple provisions of both the Federal and State Constitutions. On May 27, 1999 the Ohio Supreme Court struck the program down on what purists have desirably called a Mickey Mouse ground. The program was enacted as part of an ominous budget bill, which was in violation of what is known as the single subject rule. But I cannot really put the Ohio Supreme Court decision in the win column because a few weeks later the Ohio legislature reenacted the program. And this time it arguably did it right.

We then filed suit in the Federal district court in Ohio and we challenged the reenacted program under the establishment clause. In December 1999, the district court ruled the program unconstitutional. The defendants appeal to the United States Court of Appeal for the Sixth Circuit and as you all know on Monday the Sixth Circuit continued our unbroken string of Federal court victories by affirming.

The most comprehensive voucher program and operation today is the statewide program in Florida. Although it is presently operating on a very limited scale, it has the potential to dwarf the Milwaukee, Cleveland and all other programs combined. We challenged it in state court under the establishment clause, the religion clauses of the Florida constitution and the education article of the Florida constitution. The latter article obligates the state of Florida to ďestablish and maintain a high quality system of free public schoolsĒ, which we contend is the exclusive way in which public money can be used to educate children.

Over our objection, the trial court chose to deal initially only with the education article and on March 14 of 2000 the court ruled in our favor. The intermediate Appellate Court reversed, but also refused to reach the religion issue. On November 12 of this year we filed a petition for review with the Florida Supreme Court, but the court has not yet acted because it had been otherwise occupied.

A secondary of litigation involves what is known as tuitioning out. In a few states, most notably Maine and Vermont, some small school districts that do not have their own high schools pay tuition for resident students to attend other public or private high schools in the state. This is a long standing and non-controversial practice because sectarian schools have always been excluded from the programs. The exclusion was challenged recently in three separate lawsuits, one in the Maine State Court, another in the Maine Federal Court and a third in the Vermont State court. We, the opponent, had a clean sweep. The Maine Supreme Court, the US District Court in Maine and the United States Court of Appeal for the First Circuit all held that it would violate the establishment clause to include sectarian private schools in the program. The Vermont Supreme Court did not reach the establishment clause issue because it held it would violate the prohibition in the Vermont constitution against the use of public funds to support religious worship. Petitions in all of those cases were filed with the United States Supreme Court and all were denied.

The third area of litigation includes various tax schemes under which people who send children to private school or contribute to private school education receive a tax benefit, either a credit or a reduction against state income tax. The primary beneficiaries of these tax schemes are generally sectarian private schools. Arizona and Illinois recently have taken this approach. We have been less successful in our challenges to tax schemes because these schemes present a threshold question because they do not involve the direct transfer of money from the state treasury to parents to private schools. Is public money actually being used to pay for religious education? We contend that the answer is yes because money that otherwise would be paid to the state treasury is diverted and instead used to pay for religious education. But the Arizona and the Illinois Court disagree. They have held that we are not dealing with public money until the state actually corrects it.

As indicated, the United States Supreme Court to date has denied all requests for review. But that is unlikely to continue in light of what has been happening in the lower courts. The recent Sixth Circuit decision involving the Cleveland voucher program is the most likely test case. And we may soon find out probably by a five to four vote whether Ninquist is or is not still good law.

If and when the Supreme Court takes this or another case, it is my hope the Court will reaffirm the position taken in 1973 in Ninquist. But even if it does not the legal battle will not end. We will continue to challenge voucher and under choice programs under state constitutions on whatever grounds are available to us from lofty principles to church, state separation to Mickey Mouse issues such as the single subject rule.

Thank you.

MR. VITERITTI: Thank you. Clint Bolick.

MR. BOLICK: It looks like I am going to have a long career. Thank you, Mayor Giuliani, for sponsoring this wonderful conference and for getting us out of DC. It is a good day to be away from DC. As I speak there are over 100 jets filled with Washington lawyers returning home from DC to Tallahassee making the city once again uninhabitable.

The discussion over the constitutionality of school choice is framed not only by the religion clause of the first amendment, but by the equal protection clause of the fourteenth amendment. Forty-seven years ago the United States Supreme Court issued the most sacred promise it has ever uttered and that is the promise in Brown versus Board of Education of an equal educational opportunity for every school child, rich or poor, black or white. That is what is at stake in the school choice litigation.

These factors also inform the discussion in the first amendment context. As both sides will agree, this central inquiry in that context is the primary effect of any challenged program. The opponents argue that the primary effect is religion and we argue that it is education. The issue is presently joined in the Cleveland school choice case as elsewhere. So far six courts have addressed the issue in the Cleveland case. We have won three times including the Ohio Supreme Court on the religion issue and the other side has won on three occasions as well including most recently the Sixth Circuit on Monday.

There were many anomalies in the decision, but I will mention briefly only three of them. First the court determined that the amount of scholarships, $2,500.00, is so low that only religious schools are attracted to participate. I think this might mark the break in the impasse over school choice. Bob and Eliot, I am willing to meet you half way and solve this constitutional crisis by doubling the amount of the voucher. Why do I get the sense that the spirit of compromise is not in the air?

Another anomaly is that the court refused to consider other choice programs in Cleveland specifically magnet schools and charter schools that are backed by roughly $6,000.00 per student. They are so financially attractive that the nonsectarian private schools in the choice program converted to charter schools. Only religious schools are unable to participate as charter schools. They are the poor cousins in the overall system of choices available to Cleveland students. Nor did the court find persuasive the fact that suburban public schools were invited to participate in the scholarship program. Of about 24 suburban school districts not one elected to throw an educational life preserver to the students in the inner city in Cleveland while 52 private schools elected to take $2,500.00 as full payment for tuition for these youngsters. Thus, the courts perverse decision that because the public schools refused to participate; the private schools would be unable to fill the void.

And make no mistake about it; the need to do so is urgent. The numbers one and fourteen will haunt me for my whole life. A child in the Cleveland public school has a slightly less then one in fourteen chance of being educated and graduate at a senior level on time. The same child in the same school system has a slightly greater then one in fourteen chance of being a victim of crime inside the schools each year. When those two numbers are the same we should not be talking about choice proposals being too radical. We should be talking about them being not nearly radical enough.

Eighteen months ago our opponents showed their true colors and betrayed their true motivations. When the plaintiffs lost the first amendment issue in the Ohio Supreme Court they elected to commence a new round of litigation in federal court. That did not surprise us. What did shock us was that on Friday the 13th of August 1999, they asked Judge Solomon Oliver to enjoin the program on the eve of its fifth year of operation. Judge Oliver granted the injunction twelve hours before school was to start, which would have had the impact not only of wrenching 4,000 low income kids out of the only good schools they had ever attended, but also of depositing them on the doorstep of a school system that the previous year had fulfilled exactly zero out of 27 state performance criteria. It would have hurt not only these kids, but the public schools as well. That is appalling for any organization that calls itself an education association and it is most assuredly not the American way.

Fortunately, the outcry was so great that Judge Oliver reversed most of his own injunction and last November in a highly unusual action the United States Supreme Court intervened and voted five to four to dissolve the injunction altogether. As Justice Anton Scholia [phonetic] observed just last Saturday in the context of the election controversy and I quote, ďthe issuance of this day suggests that a majority of the court while not deciding the issues presented believed that the petitioners have a substantial probability of successĒ and we are very anxious to get to the US Supreme Court.

Now I hear from some reporters that the posse may be circling again. Well, the plaintiffs have charitably expressed their willingness to allow the school children to continue throughout the end of a school year are supposedly, according to press reports, they are insisting that the program be discontinued in September in its sixth year of operation even if our appeal to the Supreme Court is still pending. Bob and Eliot, I challenge you publicly today to renounce any such scheme and to join us in agreeing to a stay. Leave these kids alone. At bottom this lawsuit is really not about religion. It is about power. The parents have it for the first time ever and the unions want it back.

In the end the same US Supreme Court that issued the sacred promise of opportunity is not going to snatch it away from these youngsters. In the end the kids will prevail.

Thank you very much.

MR. VITERITTI: Our last speaker is Eliot Mincberg.

MR. MINCBERG: Thank you, Joe and thank you for the invitation to be here today. I want to say how much I appreciate how balanced this particular panel has been as between opponents and proponents of school vouchers. I wish frankly the same were true with some of your other panels today, particularly those that are focused on hearing what people in the grassroots really want. You heard a lot about that from Clint and others.

We at People For have worked with thousands of inner city parents in New York, in Milwaukee, in Philadelphia, in Detroit, in many other places and they are overwhelmingly rejecting the idea of school vouchers and asking for real reform in their public schools where the vast majority of their kids will go. And if you need any evidence of that look, as your next panel supposedly will, at what happened in California and in Michigan. In Michigan where Clint supported the voucher proposal and many others did too, not only was it overwhelmingly rejected by voters, it was rejected by African America voters and voters in Detroit, the places where it was supposed to benefit by a higher percentage then the rest of the state. And in fact, despite the support of the Catholic Church, approximately 64% of catholic voters in Michigan rejected vouchers.

With that as a little bit of background, let me turn as well to the legal issues. I am going to divide my remarks really into a couple of categories first on the federal constitution. Professor Fried has talked about liberty, an ideal with which I fully agree. But he has forgotten, in my view, what liberty really means in the context of the establishment clause. Justice Sutter said it well in his opinion in Lee versus Wiseman. There is a key liberty interest involved in that case and in cases involving taxpayer subsidy a liberty interest of taxpayers not to be compelled to support religions with which they disagree. Thatís the fundamental basis of the establishment clause going all the way back to the eighteenth century and thatís the basis on which the courts so far as Bob explained in the federal courts have rejected voucher programs.

Now there is certainly no question that government money can find its way into religious pocketbooks. If I get a government paycheck I can send my child to religious school or contribute to a religious charity. The question is how does it get there? Does it get there as the result of genuine neutrality and genuine independent choice by people? And what the Sixth Circuit answered in Cleveland is that the answer to that was resoundingly no. A very, very small tuition meaning essentially that only religious schools would participate. With respect to public schools, none of them being required to participate and indeed to do so would cost them a huge amount of money if you look at the money that it cost to educate people in suburban schools, only schools within the program being available to those who are interested in participating. Indeed this is worse then the Ninquist program because in Ninquist in 1973 you could go to any private school you wanted to, not just those that had a limited low tuition.

Now if you really want to talk about something, Clint, letís not talk about doubling the amount of school vouchers. Letís talk about something that would really give people choice. What if we gave to all low income people in Milwaukee or Cleveland or other places $7,500.00 that they could spend not just on private, mainly religious schools, but for example to rent a better apartment so they could have Mayor Norquistís version of school choice. They could move to a better neighborhood in Milwaukee or god forbid the suburbs. What if we did that so that the choice would not in fact be limited virtually to a universe that was virtually exclusively religious schools? I have yet to hear any proponents of so-called choice to suggest that kind of radical proposal.

By the same token, you could do something else that I have heard a number of voucher proponents suggest, which is to eliminate public schools altogether and say that what you must do is take your voucher money and then choose whether to go to a public, private or other school. That might be constitutional under Justice OíConnorís view of the establishment clause. But clearly the programs that are being suggested in Milwaukee and Cleveland and elsewhere are not under that view.

Now none of us can truly predict what the Federal Supreme Court will do as weíve seen only too well in the last several weeks. And Clint may hug as much as he wants to Justice Scholiaís statement. But Justice OíConnor has made very, very clear that she looks at each of these cases on their merits.

She herself was the one who suggested when you are looking at the question whether choice is genuine independent the analogy of the government paycheck. And if you use the analogy of the government paycheck there is no question that the Cleveland program does not provide genuine independent neutral choice that will pass Justice OíConnorís test, in my view, under the establishment clause.

But itís also worth talking for a minute about state constitutions, which Bob talked about as well. Weíve done pretty well in that area with the exception of Wisconsin and Ohio. Vermont, Maine, many others, their state constitutions we think are pretty clear. That regardless of what the federal establishment clause says those programs will not pass muster under the state establishment clauses. Itís not coincidence that they went to a referendum in Michigan because they needed to change the Michigan constitution, which in fact forbids this kind of voucher program.

An example of this is provided by the Witterís [phonetic] case itself, the one that Professor Fried mentioned where a blind student was allowed in Washington to use a state vocational grant to attend a ministerial school under the federal establishment clause. That case went down to Washington State Supreme Court. And the State Supreme Court said we really donít care what the US Supreme Court says. Our stateís establishment clause is stricter and we say that that canít be used to attend religious school. So that there are plenty of states, Washington is only one, where state of establishment clause problems clearly get in the way of voucher programs. And let me just add, by the way, there is only one way the US Supreme Court can do anything about that. Some people in the last day or so have accused the US Supreme Court of trenching on State Supreme Courts in terms of interpretation of state law. I think even this Supreme Court, certainly Justice OíConnor, is not about to do that when it comes to state establishment clauses.

Now this is not the first time weíve seen conservatives attempt to use the equal protection clause. Again, weíve seen that pretty recently as well. But I think it is important to talk about what Clint said with respect to the state of Ohio and the Cleveland public schools because what really troubles me the most about vouchers from a policy prospective, but it bleeds over into the legal prospective as well, is the extent to which public authorities use voucher programs to deflect their responsibility for the public schools. And Cleveland is the perfect example. As a result of a court order for a number of years, Ohio has had direct state responsibility for the Cleveland public school system. So all those statistics that Clint talked about are the direct responsibility of the State of Ohio.

What does the state do? Does it improve the public schools in any meaningful way? No. It allows the tens of thousands of kids there to continue to be in a bad system and provide for 3 or 4,000 this alleged lifeline to which Clint refers. Frankly, those 4,000 kids can and should find better opportunities within public schools including the charter schools to which Clint infers. And to which there is no federal or state establishment clause barrier.

Many of the parents weíve talked to do want a lot more to say about how their kids are educated. But they donít want the money to be bled off into the voucher systems, which already in our view have done serious damage to public education in America.

I challenge Clint in a different way. I challenge Clint to support public programs to improve public education rather than supporting voucher programs, which in our view are destructive to our parents and destructive to our kids.

Thank you.

MR. VITERITTI: I thank the panelists for their instructive and spirited remarks. We have about fifteen minutes left for questions and comments from the audience. There are mikes set up. I have to tell you I had about six phone calls from City Hall this week and each one had the same message. Please keep this going on time. And after I introduced the guests and sent a number of e-mails to everyone and made that clear that we had to keep to our seven minute time limit somebody whispered in my ear while I was sitting up here. Donít worry too much about the time. We have plenty of time.

So we do have fifteen minutes left for questions. You can direct your question either to one panelist or to the entire panel. We would appreciate it if you can identify yourself. And keep your questions and comments as please as brief as possible so there is time for others. Weíll start with this gentleman on the left.

MALE VOICE: I just want to point out to Milwaukee school board aggrieves Mr. Wincberg and we have allocated for $10,000.00 to public schools in the suburbs as well as charters, as well as our most revolutionarily our own public schools. Even our own schools get their full amount and we think that is pretty productive and we thank you for that agreement.

My question to all four of you is that one of the most surprising things about the Milwaukee choice experiment is that the city of Milwaukee is becoming a magnet for Orthodox Muslims and we welcome them. We think they are good citizens and good people. And they tend to send their children to catholic schools because on three grounds of Islamic law they feel their rights as American citizens and as practicing Muslims fundamentally violated by the government schools. There are obvious grounds of gender separation, anti-Semitic teachings in our textbooks against Islamic religion and practice in history and dress requirements.

I would just ask the four of you just to comment how this fits in to both separation of both church and state and religious freedom for those orthodox Muslims in Milwaukee.

MR. VITERITTI: Who wants to take that?

MALE VOICE: Well, let me say first of all that there are things in the textbooks in Milwaukee that are anti-Semitic. I hope you change them. A number of the concerns that youíve raised I think can and should be accommodated within the public school setting. But, of course, given the Milwaukee voucher program that exists they certainly have every right to go to whatever kind of school that they want to. Our concern continues to be the compulsory use of taxpayer dollars to support that kind of a decision making process.

I also want to commend the efforts that I think we agreed upon to do what I think in Milwaukee really has been the most responsible for improvement in education there, which is to lift the state cap on the sage program that used to exist in Milwaukee. That was a class size reduction program that has tremendous results across the state of Wisconsin. And until just a couple of years ago, and itís still being phased in, there was an artificial cap in Milwaukee. That from our prospective was one of the major things that was impeding educational improvement in Milwaukee and we are very pleased to see that that was lifted. And that improvement is coming, we think, in large part as result.

MALE VOICE: I think Mr. Mincbergís remarks, which are constructed and heart felt, illustrate beautifully what is wrong with this insistence on the monopoly of education of children by government run schools because you come up with a problem, anti-Semitic remarks, anti-Muslim remarks in textbooks. Well I would like to see what those remarks are and there may be some remarks which take a point of view about perhaps the Ottoman Empire and what they did in Spain and in the Balkans and so on. I have no idea. But these are things on which there can be a point of view.

Now the reflex, the inevitable reflex in government run schools has got to be if there is something that is offensive to anybody on any ground, whether itís valid or not, comb it out so that the quality of what is taught becomes more and more anodyne, undifferentiated and frankly mindless. That is not freedom. What is freedom is a variety of points of view and an ability to choose institutions, which exemplify a variety of points of view. And of course that is one of the reason that parents of any ambition flee the government run schools because they are afflicted with political correctness to a degree that makes the quality of education in some respects perfectly stupid.

MR. VITERITTI: Why donít we go on to another question. I will give you all [interposing]

MALE VOICE: How about thirty seconds on this one? Let me just say I come to these programs and I am assured that my panel will be constitutional law. And then I find the weakness of the other side is the fact that they canít stay on constitutional law. That their arguments immediately delve into the policy question of is choice good or is choice bad. How do we help the children in these bad schools? Is this a good or a bad program? That is a policy debate, which youíve heard about all day. The issue, the challenge we have is this. We are quite aware that there are problems in the public schools, particularly in urban public schools.

That is not the question. The question is how best can we solve them. And the task that we have, which is difficult, we must solve them within the framework of the constitution. There are many problems that confront society. And if we can ignore the constitutional restraints in time of crisis we could solve them. But the test of our constitution is when the problem is a bad one like urban education problems. The test is to comply in that time with the constitutional mandate because if we abandon the constitutional requirement to solve a crisis the price we pay in the long run is infinitely greater then the problem we began with.

MALE VOICE: The constitution made me do it.

MR. VITERITTI: Okay. We are trying to keep this within the context of a constitutional question. Unfortunately sometimes itís very hard to separate the constitution and the policy issues. And because people have different interpretations of the constitution, itís not easy to draw that boundary around it. So I will advise you that this is a constitutional discussion. But I also would not draw the line and say you need to stick within anybodyís definition of the constitution. So letís go to the next question.

MALE VOICE: I think I have a constitutional question. One for the anti so-called pro choice group and one for the pro choice group, although I am not so sure Professor Fried wants to be referred to as pro choice in each and every instance.

The question is this. For the so-called, the anti choice people, if you disagree with Professor Friedís summation of the first amendment and you use one that says basically that government should remain neutral as among religions or as between religion and no religion, why is the enforcement of no religion in public schools neutral as between religion and no religion under the first amendment rather then some special way of looking at the world that entails no religion? For the pro-choice forces I am wondering whether or not you think Ninquist is really as important as the Sixth Circuit said it was? Or is it so inapposite that it would even attract the attention of the four separationists on the court?

MALE VOICE: Let me respond. The Sixth Circuit relied on Ninquist because that is how we [interposing]

MALE VOICE: Thatís not what I asked you. I asked you about whether or not one is neutral as between religion and no religion by enforcing no religion?

MALE VOICE: Well, Ninquist I think is quite important. I think that Mr. Chanin is quite right. The word from the Supreme Court and reasonably is I feel we speak, donít overrule prior precedence of ours for us. Weíll do that ourselves.

MR. VITERITTI: And I think thatís [interposing]

MALE VOICE: Absolutely. Just thirty seconds.

MALE VOICE: But they will do it.

MALE VOICE: What the court, we argue the case the easiest way because we want to win. And we went to the Sixth Circuit and said you donít have a choice here. It does not matter whether this came to you in the first instance you would rule this way or that way. And it doesnít matter if you believe that the Supreme Court will overrule Ninquist. You are bound by the on point precedent and that is how we argue the case and that is what the court moved. If and when we are in the Supreme Court then we will have to address your argument and let me do it right now.

The concept of neutrality is not that government must treat sectarian and nonsectarian activity the same. That is not neutrality. If government could do that it could provide grants for spiritual counseling because it funds secular counseling. And it could provide grants to build chapels on college grounds because it provides grants to build science laboratories. And it could pay teachers to engage in prayer with their students because it allows them to engage in discussions on secular subjects with their students. And the Supreme Court has held that every one of those activities violates the establishment clause. So the notion that says government must or even can treat secular and sectarian activities the same is a total misunderstanding of the constitutional concept of neutrality.

MALE VOICE: We have not argued that Ninquist is no longer good law. But these programs have been designed very consciously with Ninquist in line. The Ninquist decision was geared toward providing aid directly to religious and private schools and to the patrons of those schools exclusively. All of the other programs are quite different in that they operate within a broader range of choices. The Supreme Court since Ninquist on six consecutive and unbroken occasions has upheld the programs where two elements are necessary. One is neutrality, meaning that there is no finger on the scale in favor of religious schools. And in Cleveland, quite to the contrary as I mentioned before, if you choose to be in a private school in the choice program you forego a lot of benefits that you get if you choose one of the public school options in the Cleveland program.

And the second factor is individual choice. Not a single dollar reaches the threshold of the doors of a religious school until a parent elects to send her child there. This program, the Cleveland program and all the others are designed with that precisely in mind. And as a result we donít have to overturn Ninquist in order to have the program upheld.

MR. VITERITTI: We are going to move on. We have about five minutes left and I would like to give a couple of other people time to ask questions. Please keep the questions short and please keep the answers short. In the back.

MALE VOICE: My last answer was really short.

FEMALE VOICE: This question is to Mr. Chanin and also to Mr. Mincberg. Would you and your constituents as well as your foundation support a public school voucher program whereby students within a given jurisdiction would be allowed to move from one school to another?

MR. VITERITTI: Elliot, why donít you take this one?

MR. MINCBERG: Okay. If you are talking about from one public school to another [interposing]

FEMALE VOICE: Yes, sir, one public school to another.

MR. MINCBERG: I donít have the slightest problem with that. We might, depending on the program, have objections to the way its implemented, etc., etc. But from a constitutional prospective public school choice is perfectly constitutional as are charter school programs, which is another form of public school choice. And indeed weíve just adopted a policy that makes clear the circumstances on policy grounds, not legal grounds where we think charter schools are good ideas and sometimes where we think they are bad ideas, the devils into details in terms of how it works.

MR. VITERITTI: Letís go to another question, Mr. Chanin.

MR. CHANIN: The NEA does support public school choice and has developed public school choice.

MR. VITERITTI: Mr. Chanin, letís give somebody else a chance to talk, okay. In the back.

MALE VOICE: I would just like to hear Mr. Chanin and Mr. Mincberg respond directly to the issue that was raised earlier today regarding Pell Grants and other government funds that are used to fund religious institutions at a higher education.

MALE VOICE: I think I basically did that already.

MALE VOICE: Iíd like to do it, but I need clearance.

MR. VITERITTI: Ten seconds.

MALE VOICE: Let me tell you what the difference is. Three factors, this is the Pell Grant. This is the Witter case. This is a GI Bill. What you have there is a broad social welfare program. The recipients of that benefit are able to choose between public and private options. They are able to choose in an unrestricted universe. And that is what the court focused on as genuine parental choice. The problem with the voucher program is the limited universe. It is like saying I will give you your paycheck as a government worker, but you can only spend it in ten stores, eight of which sell religious articles and the other two are sold out. That is the problem with the voucher programs.

MR. VITERITTI: Next question, the gentlemen in the front here.

MALE VOICE: I would like to address a brief comment and a constitutional question, although a personal one to Mr. Chanin. I taught for thirty years in one of the wealthiest communities in the United States, the upper west side of Manhattan where approximately $11,000.00 a year proceed is assigned to the public schools. They were at the beginning and were worse at the end horribly dangerous, incredibly stupid places to be even in the whitest part of the community. Legendary politicians like Mrs. Messenger or Mr. Naber [phonetic], who is soon to become a legend, spoke constantly and rhetorically about their commitment to change and nothing changed except throughout my thirty-year tenure these schools became worse and more dangerous.

My constitutional question to you is this. Since youíve done a great deal of thinking about this could you recommend the constitutional strategy to deal with places like the upper west side of Manhattan?

MALE VOICE: Well, within the bounds of not losing my client let me try and respond to that question. There are; everyone now whether they did during your tenure recognize the severity of the problem or just swept it under the rug I cannot speak to. Most of the major educational organizations and Eliotís type of civil rights public interest organization are fully aware of the severity of that problem. I believe there are programs ongoing now throughout the country, which are attempting to address those problems, some more successfully then less, within the framework of public education.

I too regularly site Milwaukee, not for the reasons youíve heard today. I think the sage program in Milwaukee, a public school program, had more potential to turn around the kinds of problems you are referring to in a bad public school system then any choice program that is on the map today. And I think I could site you if I had time, which I obviously do not, to five or six or seven similar types of programs. They are nibbling away at the problem. They will not solve it overnight the same way choice is not a panacea for a massive social problem that involves residences and peopleís income and everything else. There is no panacea. You work at it and you work at it either outside the public school system or inside the public school system depending on your value structure. Mine is work within the public school system. Donít advocate 90% of the students who will never leave it.

MR. VITERITTI: I am sorry. We are out of time. You want me to cut it? Okay. I want to thank our panel. I do have a feeling that this conversation is going to continue and it may continue in Washington before the US Supreme Court. And it will involve many of these same folks. So stay tuned and donít switch off your remote control. We will take a ten-minute break now and at twenty minutes to four we will hear comments from former Secretary of Labor, Bob Reich. Thank you.

[next section] [previous section]


Center for Civic Innovation.



This conference also available as MI CONFERENCE SERIES #4


Introduction and Opening Remarks

Welcome by Henry Olsen, The Manhattan Institute

The Honorable Rudolph W. Giuliani, Mayor of New York, with brief video presentation

The Honorable Gary Johnson, Governor of New Mexico

The Honorable Frank Keating, Governor of Oklahoma

Panel Discussion: Synthesizing the Evidence: What Research Tells Us about the Effect of School Choice on Student Achievement

Jay Greene, Manhattan Institute

Paul Peterson, Harvard University

Eugene Hickok, Pennsylvania Secretary of Education

Moderator: John Gardner, Milwaukee Public Schools

Panel Discussion: Report from the Grassroots: Responding to the Growing Demand for Alternatives

Mikel Holt, Milwaukee Community Journal

Teresa Treat, Children First CEO America

T. Willard Fair, Urban League of Greater Miami

Carol Reich, Beginning with Children Foundation

Moderator: Jeanne Allen, Center for Education Reform

Afternoon Remarks

The Honorable John Norquist, Mayor of Milwaukee

The Honorable Bret Schundler, Mayor of Jersey City

Panel Discussion: Choice and the Constitution: Debating New and Old Questions about the Constitutionality of Vouchers

Clint Bolick, Institute of Justice

Robert Chanin, National Education Association

Charles Fried, Harvard Law School

Elliot Mincberg, People for the American Way

Moderator: Joseph Viteritti, New York University

Afternoon Remarks

Professor Robert Reich, former U.S. Secretary of Labor

Panel Discussion: The Future of School Choice: Learning from Michigan and California and Considering New Models of Increasing Educational Opportunity

Matthew Miller, syndicated columnist

Joe Overton, Mackinac Center for Public Policy

John Coons, University of California at Berkeley Law School

John Faso, New York State Assembly Minority Leader

Moderator: Bruno Manno, Thomas B. Fordham Foundation


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