School's out, but fight over school choice is in

A new federal law and a landmark Supreme Court decision are reenergizing the fight over school choice.

For the first time, Washington is requiring school districts this fall to provide other options for students in schools labeled "in need of improvement."

And seven weeks after the US Supreme Court ruled that a voucher program in Cleveland was constitutional, state lawmakers from California to Maine are gearing up to introduce school-choice legislation this fall.

The fresh momentum for such programs must overcome new legal challenges, however. Last week a circuit court judge in Tallahassee ruled that a Florida voucher program violated the state constitution. Although that ruling will be appealed, similar hurdles are likely to face voucher efforts in dozens of states.

"It's a sign that school choice is stumbling forward, and Florida was a stumble," says Chester Finn, president of the Thomas B. Fordham Foundation and a school-choice advocate. "Where the politicians agree to choice, opponents will take to the courts."

The battle, in short, is more contentious than ever, and activists on both sides agree that it is expanding to Congress, state legislatures, and state courts. The outcome could dramatically change what a public education means in the United States.

Until recently, most of the $321 billion that the federal government has spent on education since 1965 has been directed to helping children do better in the school closest to home.

School choice was an option mainly for families who afford to could pay for private-school tuition.

But in the past 10 years, choice programs – both privately and publicly funded – have begun to change the face of public education in the United States, especially for lower-income students. These include magnet schools, open enrollment, public charter schools, as well as private scholarship programs, public vouchers, tax credits and deductions to make choices more affordable.

While most comment on the newly revised Elementary and Secondary Education Act has focused on its new requirements for testing and accountability, in fact its strongest early impact will be in the area of school choice.

"The new ESEA legislation puts a great deal of faith in the school choice movement, increasing federal support for charter schools, and other voluntary public school choice programs," write Carl Krueger and Todd Ziebarth in a study for the Education Commission of the States, which is based in Denver.

In the final hours of drafting this bill and the regulations to enforce it, the Bush administration pushed forward a feature that requires school districts to provide students in failing schools with the option of attending higher-performing schools.

Many school administrators were stunned to learn that this requirement takes effect this fall. Last month, the Department of Education announced that parents in 8,652 low-performing schools should be hearing from their school districts that their kids will have the option to attend at least two other better public schools this fall. Local schools are also required to help with transportation to get there.

For most districts, there's still a long way to go to meet that goal. In Chicago, the more successful public schools can only accommodate about 2,500 students, or about 2 percent of those eligible to leave the city's failing schools. In Baltimore, school officials say they can find only about 200 slots for some 30,000 eligible students, less than 1 percent of those with need.

"Some school districts are ready; others are getting there," says Dan Langan, a spokesman for the US Department of Education. The gap has prompted rumors that the department will quietly drop the requirement as the new school year begins. But officials here insist that the law does not allow much flexibility on this point.

At the same time, school-choice activists hope to use the momentum of the Supreme Court's June 27 decision to push for new laws across the country.

"There will be a strong push for legislation to create vouchers in other states," says J. Patrick Rooney, chairman of Golden Rule Insurance Co. in Lawrenceville, Ill. He sponsored the first corporate scholarships to help children pay for private school tuition.

Voucher advocates are preparing an ad campaign to build support for vouchers in poor and minority neighborhoods.

State legislators in California, Pennsylvania, Maryland, Kansas, Minnesota, and Maine are planning to introduce some form of voucher legislation in their next sessions. Meanwhile in Congress, House Republicans are sponsoring a new school-choice scholarship program for the District of Columbia. President Clinton vetoed a similar bill in 1998.

On the legal side, the battle promises to be every bit as lively. Despite the Supreme Court ruling that Cleveland's voucher program does not violate the US Constitution, 38 states have amendments in their constitutions that prohibit aid to religious schools. On Aug. 4, Florida's Second Judicial Circuit Court overturned that state's voucher program, citing "clear and unambiguous" prohibitions in the state constitution.

School-choice advocates say the ruling will be appealed. They hope that conflict between state and federal courts will land the issue in the US Supreme Court again.

Voucher foes welcomed the Florida ruling. It "makes clear that the federal Constitution is only one of the potential legal problems with religious-school voucher programs," says Elliot Minckberg of the People for the American Way Foundation. "We're very hopeful that they will find an enormous amount of resistance from those who are concerned about the effect of vouchers on public schools and on kids."