School Choice and Politics: Precedents and Prospects

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Paul R. Dimond

Paul R. Dimond is a lawyer, writer, and former economic advisor to President Bill Clinton.
He is senior counsel at Miller Canfield and is the author of Beyond Busing and other works.

This essay is adapted from a presentation
delivered at the inaugural conference of
The American Center for School Choice:
“School Choice and the American Family: A Moral and Civic Imperative”;
at the National Press Club in Washington, DC,
November 9, 2009

Previous speakers have discussed the civic and moral good of empowering every family with the opportunity to choose the publicly supported school that will do well for each of their children. I will address the politics of this principle: (1) how it has been promoted and limited in the past and (2) how it may yet become the rule in this country as in most other developed democracies in the world. In addressing the precedents, I will offer my personal experience as an example of the means and limits of prior efforts to promote school choice. In addressing the prospects, I will: (a) summarize where school choice stands today across the U.S., (b) discuss the substantial hurdles to expanding school choice and (c) offer a few suggestions for ways to expand school choice going forward.

1. Precedents.

My personal experience with school choice began in 1971 and continued over four decades to today. I hope this experience will help you understand why I support the opportunity for every family to direct the education, including choosing school, for their children. It also offers a lens through which you can see how politics has worked to limit this opportunity in this country. Given my own lack of success in expanding school choice to more families, this personal history may also give you pause in evaluating my suggestions for the future.

After completing a clerkship with a federal Sixth Circuit Court of Appeals judge, I joined the Harvard Center for Law and Education in the fall of 1970. There, two apparently diverging sets of talents and ideas greeted me. Steve Arons and Sandy Jencks stood on one side. Arons offered a vigorous defense of school choice as the personal First Amendment right of parents to free exercise of religion; Jencks offered a rigorous evaluation of school choice vouchers in Alum Rock financed by the Office of Economic Opportunity. On the other side, Nick Flannery and the NAACP General Counsel Nate Jones asked me to help try to largest school segregation case ever, in Detroit, Michigan. I learned from both the common demand of all families: regardless of color, creed, national origin or residence, to choose a publicly supported school that would work well for each of their own kids.

At a conference in 1971 I also listened as John E. ((“Jack”) Coons explained how state school finance schemes endowed local fiscal clubs – school districts of extraordinary private wealth – with the ability to raise and spend large dollars per pupil with low tax rates while relegating districts with little wealth to raising and spending much less per pupil despite much higher tax rates. I got the irony of calling the schools of the exclusive fiscal clubs “public” when they were closed to the vast majority of families without the wherewithal – personal wealth and white skin color – to buy an expensive home in an exclusive neighborhood to enroll in such an elite school. That admission price was far more than the tuition at even the most expensive private schools. Yet I didn’t see how “equalizing” the “power” of each local school district to generate the same expenditures per pupil from the same tax “effort” expanded the power of families to choose a school the parents determined would do better for each of their own kids. Then I heard the lilt in Jack’s voice when he described his “family power” remedy: grant every family, regardless of personal wealth or residence, the same dollars to spend on the school the parents choose commensurate with the rate – not the amount – at which they choose to tax themselves to support their own children’s education. Oh sure, there were all kinds of technical issues, but there was no doubt even then that Jack’s real commitment was to empowering families, regardless of wealth or color, with an equal opportunity to choose the school that would best educate each of their own kids. No state, however, adopted Jack’s principle of family choice in response to a state school finance claim. Why? All local school districts and boards fought for their vested interest in preserving their own assumed powers, including assigning pupils rather than empowering families to choose between schools.

Let me explain how I came to the same deep understanding as Jack in a school segregation case, where the customary remedy to a proven wrong at that time was for judicial approval of state or local school authorities’ plan to assign pupils to mixed rather than black or white schools. Our class of plaintiffs included a family that lived on the south side of Eight Mile road, the boundary of the Detroit School District, and wanted to walk their kid across the street to a better school. During the course of the trial, we proved – and the federal district court judge found – that public and customary discrimination at the federal, state and local level over fifty years herded black families and children into an expanding core of black housing and schools in Detroit always surrounded by a expanding ring of white housing and schools. By the time of trial in 1971, the ring of black schools and housing had expanded to the boundaries of Detroit School District. To limit any remedy for this proven wrong of racial ghettoization to the confines of Detroit would only validate its boundaries as the latest color line of segregation: federal courts could bless such a racial barrier no more than state courts could enforce racially restrictive covenants that prohibited the sale of houses in particular areas to all but whites. Given the geographic size of the Detroit area, congestion and the large number of pupils, it was also clear that no remedy assigning students to schools requiring long bus rides was practical. Given the extent of the political opposition to sending any white child from the expanding white ring to schools in the black core, it was therefore likely any effective, long-term remedy would have to rely more on families choosing schools than any school authority assigning students to particular schools. Understandably, all of the surrounding school districts fought to cabin any violation and all remedy within the Detroit School District.

As the case wound its way back and forth from the federal trial court to the Sixth Circuit Court of Appeals, a unique opportunity arose: the Supreme Court determined to review the case after the Sixth Circuit vacated the trial judge’s preliminary orders concerning planning for remedy. As a result, Milliken v. Bradley presented the Supreme Court in 1974 with the same circumstances it faced in Brown v. Board of Education in 1954: a declaration of a pervasive wrong without any remedy. On behalf of the plaintiffs we argued in the Supreme Court that the only issue was whether one Detroit black family could choose to walk their child across Eight Mile Road – the latest color line that now happened to coincide with the boundary of the Detroit School District – to a school on the other side. Unfortunately, five justices chose to view the scope of the case as confined within the boundaries of Detroit and scolded the trial judge for reaching out on his own to drag in fifty-four suburban school districts and bus hundreds of thousands of children across school district lines to solve a “Detroit-only” violation.

We could argue the merits of this narrow majority’s decision, but one fact is clear: if one of the five Justices had joined with the four in minority to support my view of the case, there would have been huge surge of support for empowering all families in southeast Michigan – not just our original plaintiff –with the opportunity to choose the school each decided would work well for their own children. New political coalitions would have grown across racial, ethnic, religious and civic lines to support such new approaches to breaking this color line of ghettoization, as they did in the Civil Rights Movement following Brown I. Instead Milliken I effectively ended this catalyst to expand school choice to all families. [Note: The irony is that in 1979, one of the five Justices who voted with the majority in Milliken I shifted sides in what was a much more difficult inter-district school desegregation case from Wilmington. Justice Blackmun refused to vote to overturn a federal district judge’s decree ordering desegregation of all schools across school district lines in northern Delaware.]

In the 1980’s I studied and wrote about this nest of issues – school choice, race, wealth, education, finance, families and the role of courts, the Congress, state legislatures and local authorities in our democracy – while teaching constitutional law, federal courts and state and local government. I also served as a partner in major private real estate group and practiced law in large law firm. In January, 1993, and for the next four and a half years I served as Special Assistant to President Clinton for Economic Policy; my portfolio included education, housing, labor and the dynamics of local metropolitan economies. I also participated in welfare reform where the President and Speaker Gingrich came together around a simple principle: governments don’t raise children; families do. This was a part of President Clinton’s larger view that the role of government is to equip families with the tools, opportunity and personal responsibility to build a better life for themselves and their children. Based on this understanding of the power of the G.I. Bill of Rights, the President proposed and Congress with bi-partisan support enacted major expansions to Pell Grants and student loans, tuition tax credits for the first two years of college, and lifelong learning tax deductions and reformed the Labor Department’s training regimen so dislocated workers could invest the allocated dollars in the education and training each chose. Often called a New Democrat or Empowerment agenda, the President ran on this platform and was re-elected by a wide-margin in November 1996. In the summer of 1997 President Clinton embarked on a cross-country campaign at joint sessions of state legislatures convened by each governor to reform education. His ten-point plan covered early childhood, college and lifelong learning after high school for all, but his starting point applied his principle to the core of k-12 schooling: “You know,” he’d say in his best down-home Arkansas manner, “every family wants the opportunity to choose the publicly supported school the parents decide will work for each of their kids.” Despite the complaints of the lobbyists for the teacher’s unions and school boards in D.C., the representatives of the people wildly cheered this opening, including Democrats and Republicans, former teachers and school board members included. [Note: Under the President’s first principle, high standards and good assessments provided better information (a) to parents to make better choices among schools and (b) for teachers and schools to respond more effectively to parent demands and individual student learning.]

The Lewinsky affair intervened. Two of the smartest politicians of the twentieth century made the dumbest political mistake of their careers. President Clinton opened himself to personal attack; and Speaker Gingrich chose to impeach the President. The partisan war engulfed the President and the House and the Senate for the rest of the Second Term. Thus ended what might have been a major bi-partisan catalyst for most states to empower all families with the opportunity to direct the education of their own children, including by choosing among K-12 schools, as they do for child care, early childhood education, college and lifelong learning.

I returned to the private practice of law thereafter but made the time to review family choice of school twice more, for the University of Michigan Press in “Retrospect/Prospect” (see P. Dimond, BEYOND BUSING (2005) pp. 403-413) and for the Annenberg Public Policy Center in “School Choice and the Democratic Ideal of Free Common Schools,” (see THE PUBLIC SCHOOLS (Oxford university Press. 2005) pp. 323-345). As a result I committed to serving as founding board member of the American Center for School Choice.

After struggling for four decades, I am still convinced that parents bear the primary responsibility to direct the education of their own children, including by choosing the school that will work for their own kids. This judgment has only been confirmed watching my own grand-children. I am the son of two public school teachers, attended public schools where I grew up, chose to send my two daughters to the same public schools. My older daughter happened to marry a good Irish lad named Fitzgerald, and they chose to send their boys to the local parish elementary school. My grand boys are thriving there, but for the life of me I can’t explain to them why the State of Michigan prohibits one cent of their hard-working parents’ school taxes supporting their choice of school because it’s called St. Francis when the state pays one hundred percent of the cost of the school chosen by the parents of their friends next door because it’s called “public.”

2. Prospects

a. Where School Choice Stands Today. As discussed by other speakers, most advanced democratic countries distribute tax revenues to support family choice of a variety of schools –those run by the government (whether students enroll by geographic area, special curriculum, special examination, magnet or charter), religions or independent non-profit or for-profit charter. In these countries the state does regulate all of these schools (e.g., minimum student performance, prohibition of child abuse, outlawing the teaching of violent overthrow of democratic government). The United States is one of the few nations that limit tax support primarily to schools run by government, i.e. local school districts established by the states. The U. S. Supreme Court has ruled, however, that no state may prohibit parents from choosing religious schools for their children.

The most recent statistics from the National Center for Education for 2008-9 suggest: 16% of students enroll in public schools of choice (up from 14.2% a decade ago), including 1.4 million in charter schools; 12% enroll in private schools (up from 9% in 1999), 9% in church-related schools (but a declining number in inner-city parish schools where closings often offset the increase in choice from additional charter schools) and 3% in private schools affiliated with no religion; and 2.9% (up from 1.6% in 1999), 1.5 million children, enroll in home schooling. By this indicator, NCES estimates that parents choose to enroll almost 31% of students in such school of choices.

For the first time, NCES also reported estimates on one additional option for choice of school: 27% of students in public schools report that their parents moved to the current neighborhood to enroll the student in the particular public school. This is an interesting admission as the NCES previously assumed that the local school authorities assigned every child not enrolled in a “choice school” to a particular public school. The irony is that parents with the financial wherewithal have been paying to buy a home and move into a particular neighborhood as the price of admission to enroll their child in a particular public school for decades. This price, of course, is substantially more than the cost of tuition to enroll in the most elite private school. It’s not clear that such exclusive schools deserve to be called ‘public’ because they exclude the majority of parents who don’t’ have the means to pay this price of admission; nor is it clear why religious schools that hold their doors open to all students at a small fraction of this tuition cost are less ‘public.’ Nevertheless, this choice of school by parents paying to choose to buy a house served by a particular school is an integral element of school choice throughout the U.S. If these students are included, families choose to enroll more than a majority of all students in particular schools, whether public schools of choice, neighborhood public schools or private schools.

b. Remaining Hurdles to Expanding Public Support for Family Choice of School.

First, the virulent vestiges of anti-Catholic bias dating back to the Blaine Amendments following the Civil War prohibit all public support for parochial schools in many states. Two state courts have interpreted these invidious provisions narrowly to permit state support directly to families to make their own independent choices of schools, including parochial schools; they did so to avoid having to decide whether state support of family choice to every kind of school except for religious schools violates the free exercise clause of the First Amendment. Other state courts, however, interpret state constitutional provisions that are neutral on their face concerning religion as prohibiting state cash payments to parents who choose parochial schools. As a result, state constitutions in more than a third of the states stand in the way of expanding public support for family choice of religious schools.

Second, despite a few good examples of broadly expanding school choice for families in the central cities of Milwaukee, Cleveland and D.C., the rest of the states refuse to embrace such models. The tenacity and wit shown by parents in these three cities in maintaining such public support in the face of organized and loud opposition offers three “profiles in courage” and political savvy. But the extent of the continuing opposition to these scholarship programs is also telling: school choice is opposed (a) on the left by teacher’s unions and organized labor, major elements of the Democratic Party and (b) on the right by school boards and advocates of ‘local control’ in most suburban and rural school districts, major elements of the Republican Party. The failure of any state to embrace the Supreme Court’s invitation in the Cleveland case to expand public support for family choice among schools including parochial since 1903 is also a significant barometer of this opposition. So too is the continuing refusal of states and local districts to expand school choice in response to President Bush’s call in the No Child Left Behind Act.

Third, insofar as the perception of a majority of voters in the states views school choice as an issue limited to poor, minority parents in the inner-city, it may be as much a curse as a blessing. Such perceptions may give the few in Cleveland, Milwaukee and D.C. room to plead for redress of special grievance, but they may also lead most states to focus on other issues of much broader interest to the electorate.

Finally, the Catholic Church and the Evangelical denominations have not supported public aid to families for choice of school. From their pulpits priests, pastors and ministers may rail at their assembled congregations about a wide range of social and political issues, but do they ever talk with their parishioners about the fundamental unfairness of having to finance their own kids’ educations entirely out of their own pockets while paying school taxes? Is this because the leaders of these churches fear state regulation of their mission-driven schools or is it because church leaders place a higher priority on other issues than the education and upbringing of the children of their flock? Unless church leaders join in supporting their family members’ interest in school choice, it will be difficult to generate the critical mass here that led to reasonable political accommodations in most of the other developed democracies around the world. And it doesn’t help that the Catholic Church has permitted hundreds of good parish schools to close in inner-cities rather than demanding public support to keep these good schools open for another generation of families with kids who want to learn in them but lack the means to pay the tuition.

What of two other supposed obstacles, proving that family choice of school (1) improves student learning and (2) will not steal money from financially strapped public schools? As to the first, I suggest only that we accept closing any school of choice (whether magnet, charter, independent or religious affiliated) that does not meet the same minimum student learning requirements used to close any public school. Beyond that, we can debate the various studies, but know this: empowering all families to choose a school the parents decide will work for their kids does do three good things. First, it engages the parents directly in their children’s learning. Second, it gives parents and teachers the ability to extend time students invest in learning from school to the home. Third, parents must take responsibility for their choice of school: rather than blame the school for lack of student learning, the parents can either choose another school or work with the chosen school, teacher and their own child to improve his or her learning. As to the corollary argument that the merit of school choice should somehow be measured on whether it improves student learning in public schools, its premise is faulty. Sustained improvements in student learning – the work of schooling – will only occur only when schools, teachers, parents and students embrace new ways of inter-active learning possible with the internet and new media. After all, the more competitive parts of the service sector generated sustained increases in productivity only since 1995 after they fully embraced the networking revolution to transform their work.

As to the second, the average cost of schools of choice is less than local school schools, one-third less for charters and fifty percent less for religious schools. Rather than stealing limited resources from public schools, schools of choice may offer models to for public schools to learn how to concentrate school expenditures on student learning, where barely half of local school district dollars are now spent.

3. Opportunities to Expand Public support for Family Choice of School. First, new coalitions can form to demand expanded public support. Consider this: 25% of the U.S. population self-identifies as Catholic, 25% as Evangelical. If these two groups join, with savvy lay and church leaders, there will be a critical mass of voters to demand public support for family choice of school. This may occur first in states and localities where the combined percentage of Catholics and Evangelical families totals over sixty percent of the voters.

Second, cut the national population another way: 21% of students are now Hispanic, 15% black, another 15% the Catholic children of diverse European ethnic origins, a larger percentage the children Evangelical parents. If the parents of these children join to form a new alliance for school choice in states and localities where they represent a majority of families, state legislators will listen harder and the two national parties will think twice before actively opposing state measures to expand school choice.

Third, don’t let the perfect be the enemy of the good. Supporters of charter schools don’t need to oppose families who want public support to choose parochial schools: if anything, such advocates of vouchers provide much of the air cover that enables charter schools to grow apace in the states despite the opposition of many local school boards and organized labor. Similarly, if a state enacts a tax credit to enable more working families to choose to pay the tuition to enroll their own children in parochial schools, supporters of school choice for poor families shouldn’t object: instead they should join in supporting (a) tax credits and deductions for contributions from others to scholarship organizations that will enable poor families to choose such parochial schools and (b) publicly funded scholarships to poor families who want to choose non-public schools, including religious schools.

CONCLUSION. Whether you view the glass of public support for family choice of school as half-full and rising or capped at half-empty or less, school choice is here to stay. Empowering families to choose the school that each decides will best educate their children is the right place to make our stand.