Choosing Equality: School Choice, the Constitution, and Civil Society.

• Author: Garnett, Richard W.
• Position: Review

CHOOSING EQUALITY: SCHOOL CHOICE, THE CONSTITUTION, AND CIVIL SOCIETY. By Joseph P. Viteritti.(1) Brookings Institution Press. 1999. Pp. 284. $29.95.

If nothing else, this Review Essay, like Professor Viteritti's book, should be timely. As I write, the United States Supreme Court in Mitchell v. Helms(3) has just decided that publicly funded computers and other educational materials may be loaned to private and religious schools. The decision is widely viewed as signaling, if not determining, the constitutional fate of school-choice experiments like those in Cleveland and Milwaukee.(4) As it happened, just one week before Mitchell, the Sixth Circuit heard oral arguments in Simmons-Harris v. Zelman(5) (the Ohio voucher case) as hundreds of voucher supporters chanted "freedom, freedom!" across the street from the federal court in downtown Cincinnati.(6) A challenge to Florida's statewide voucher program is pending before a state appeals court, and choice proposals will be on the ballot this November in Michigan and California.(7) It is, one activist reports, "High Noon" for vouchers.(8) Enter Joseph Viteritti (cue spaghetti-western-style, ominously poignant whistling), who has written a readable and reasonable, measured yet inspiring, argument for educational choice.(9)

I

"Vouchers" is, for many liberals and progressives, a dirty word; such a nasty word, in fact, that when the Vice President and his campaign staff were making the talk-show rounds last winter to critique Senator Bradley's health-care plan, they were careful to note, over and again, their horror barely concealed, that Bradley was proposing "vouchers."(10) What's more--as was illustrated last February during the Bradley-Gore debate at the Apollo Theater--it is evidently thought to be politically safer to risk snubbing the many African American parents who favor school choice than even to appear sympathetic to voucher proposals.(11)

This makes no sense to Joseph Viteritti, an "old school" liberal who offers in Choosing Equality what some might call a "bleeding heart" argument for choice in education. The book opens not with a libertarian nugget from Hayek or the Cato Institute; and not with red-meat-for-conservatives anecdotes about mandatory condom-distribution programs, Gaia worship, or public-school secularism run amok; but instead with the story of Linda Brown: "Nearly half a century has passed since the parents of a little black girl from Topeka, Kansas, entered a federal court room to argue that every child in America has an equal right to a decent education." (p. 1) Still, "[n]otwithstanding Linda Brown's courageous efforts to fulfill the promise of equality and a range of well-intentioned government actions, race and class remain the most reliable predictors of educational achievement in the United States." (Id.) This, Viteritti insists, is the "most compelling argument" for school choice. (p. 223)

Viteritti admits, of course, that there are many reasons why people support (and oppose) school choice.(12) When Milton Friedman first proposed a "full-fledged system of school vouchers" that "would minimize the role of government in education and replace public schools with privately run institutions supported by taxes," (p. 53) many libertarians cheered, and many still do.(13) In the early 1970s, progressive social scientists like Christopher Jencks, John Coons, and Stephen Sugarman turned to vouchers as an income-redistribution and empowerment device,(14) themes that many education-reform and civil-rights activists still invoke today.(15) And more recently, many religious conservatives have embraced school choice as a way to challenge what they regard as the increasingly aggressive secularism of the public schools' curriculum and culture. (pp. 56-57)

The leitmotif of Choosing Equality, though, is Linda Brown's lawsuit, and the book's animating goal is to "explain how choice might be applied ... to advance the goal of equality." (p. 2) In Viteritti's view, Brown promised "not only equality of educational opportunity for blacks, but full partnership in the American experiment." (p. 3) He aims to show that school choice holds out the best hope for making good on that promise. And he suggests that, given the support for choice programs among those to whom the Brown Court most clearly made its pledge, (pp. 5-9)(16) it is appropriate to place the burden of persuasion on those who oppose such reforms. As one of Viteritti's apparent converts put it, "[a]s a parent of an urban public high-school student, I flinch at anything that drains resources from public schools. But I have a choice. Keeping them from others because of a vague threat seems increasingly hard to justify."(17)

Choosing Equality is about a big idea--"equality." In the legal academy, though, school-choice discussions tend to focus on the fine points and various "prongs" of First Amendment doctrine and "tests." And so, one could be forgiven for thinking of the book, "Not another tour through the Supreme Court's Establishment Clause mess?" Fear not. Choosing Equality is an engaging contribution both to the education-reform arena and to the broader dialogue about the place of religion and religious institutions in public life. Particularly in a political season, the case for (and against) choice in education can too easily "morph" into partisan posturing and interest-group gamesmanship. In Viteritti's view, it doesn't have to be this way. For him, school choice makes sense as a matter of shared constitutional and moral ideals that are too important to be left to political junkies.

Here is Viteritti's argument, in a nutshell: First, the Brown decision was not just about de-segregating public schools; it also held out the more ambitious promise of meaningful racial equality in society. After Brown, Viteritti insists, equal educational opportunity should be regarded as a fundamental right. (pp. 23-28)(18)

Second, fifty years of government-centered tinkering and several hundred billion dollars in well-intentioned spending have failed to make good on Brown's promise. It's time, Viteritti thinks, to try something else. (pp. 28-52)

Third, choice-based reforms are often hamstrung by excessive regulatory controls. Magnet schools, charter schools, and public-school-only choice programs are clearly steps in the right direction, but they are not likely to capture the full creative potential of educational choice. (pp. 53-79)

Fourth, religious schools--particularly Catholic schools--are the key to school choice. These schools equip disadvantaged children for success in educational environments that are more integrated, diverse, and consonant with the best of our common-school ideals than are many of the public schools that purport to serve the same children. (pp. 80-116)

Fifth, the Constitution permits governments to include religious schools in school-choice programs. Indeed, inclusive school-choice programs better serve the religious-freedom values at the heart of the First Amendment than does strict "no-aid separationism,"(19) and they avoid the discrimination against religion that is no less offensive to the Constitution than is state-sponsored orthodoxy. (pp. 117-44)

Sixth, the strict no-funding provisions that were injected into many States' constitutions during the late nineteenth and early twentieth centuries--in large part as a result of nativist prejudices and suspicions toward the Catholic Church(20)--are the more formidable obstacles to school choice. A re-appraisal of these provisions, their history, their continuing discriminatory effects, and of the common-school movement itself, is needed. (pp. 145-79)

Seventh, school choice will not only promote educational equality but also enrich the public square.(21) Far from being balkanizing or insular, many neighborhood parochial and private schools are valuable participants in the enterprise of creating public-minded citizens, healthy mediating institutions, and a thriving civil society. (pp. 180-208)(22)

Eighth, and finally, Viteritti proposes that governments implement broad choice programs for low-income children in failing public schools. These programs should include religious schools (while requiring that these schools not discriminate on the basis of race or religion in admissions) and at the same time require that government-run schools remain secular. (pp. 209-24) In the end, Viteritti concludes,

As with all crucial political issues, choice is a moral question. It speaks to who we are as a people and to our capacity to think beyond ourselves. The most compelling argument for school choice in America remains an egalitarian one: education is such an essential public good for living life in a free and prosperous society that all people deserve equal access to its benefits regardless of race, class, or philosophical disposition. There should be no exceptions to the rule or excuses for the contrary. (p. 223) II

Viteritti observes early on in Choosing Equality that "discussions on the merits of school choice operate on two different levels. As intellectuals engage in esoteric discourse on the abstractions of distributive justice, market dynamics, religious liberty, and civil society, the poor understand on a more visceral level that it is their children who are trapped in inferior schools." (p. 11) In fact, "choice already exists for many if not most Americans" and "those who do not enjoy choice really want it for their own children." (pp. 11-12) Choosing Equality asks, given these givens, whether school choice is something that those who want it should want; whether it is something the Constitution permits government to provide; and whether it is something that, in light of our Constitution and democratic ideals, we should be eager to embrace. In other words, is school choice sensible? Is it constitutional? Is it just?

Having identified "equality"--as opposed to, say, "efficiency," "competition," or "family values"--as the...