Social meaning and school vouchers.

• Author: Devins, Neal
• Position: Constitutional law

The more things change, the, more they seem to stay the same: In 1981, I wrote a paper on the constitutionality of school vouchers for a law school course. At the time, it appeared that a sharply divided Supreme Court would reject vouchers, five to four. Two decades later, it appears that a sharply divided Supreme Court might well uphold vouchers, five to four. For this very reason, academics and others continue to fill the pages of law reviews with competing analyses of whether school vouchers violate the Establishment Clause.(1) Far more tellingly, during the 2000 elections, Court watchers claimed that the winner of the presidential race would control the constitutional fate of school vouchers (by, presumably, appointing the Justice who will cast the deciding vote in a constitutional challenge to school vouchers).(2)

That much of the ongoing fight over the constitutionality of vouchers appears little more than rote repetition of decades-old constitutional arguments cannot be denied. Yet this superficial similarity belies a critical difference between today's voucher wars and those of the early 1980s. Over the past two decades, the social meaning of school vouchers has undergone a radical transformation.(3) In part, this change is about context: increasing emphasis on market-based solutions to social problems, the demise of court-ordered school desegregation, the "secularization" of Catholic schools, and changing attitudes of parents, especially minority parents, towards vouchers. But this change is also about the text of voucher plans, that is, targeted plans that benefit a limited number of parents whose children attend failing schools instead of across-the-board plans that benefit any parent sending her child to a private school.

In the pages that follow, I will detail the changing social meaning of school vouchers and, in so doing, explain why the classic arguments against vouchers seem less salient today than ever before. For example, the claim that vouchers would circumvent school desegregation no longer makes sense. With courts increasingly giving up on mandatory busing, racial isolation in public schools is a far more severe problem today than it was twenty years ago. For this reason, vouchers are often seen (by African Americans and others) as a way to improve the lives of minority students in a world without court-ordered desegregation.

Likewise, the claim that vouchers do little more than subsidize religious parents who opt out of public schools has, in significant respects, been overtaken by a broader debate over school reform. Voucher proponents rarely talk about the inequities of compelling religious parents both to subsidize public education and to pay the cost of private religious education.(4) The focus, instead, is on the propriety of market-driven solutions to a failed public school system. For their part, most voucher opponents talk not about the wrongness of the state's facilitating private religious instruction, but instead about the need to invest in public schools.(5)

Before turning to this proof of changing social meaning, I will explain why social meaning does and should matter to the Supreme Court. In particular, I will argue that social meaning affects the Justices' understanding of the facts and, as such, appropriately influences the application of preexisting standards of review as well as the decision to recalibrate those standards in favor of alternative ones.

1. SOCIAL INFLUENCES ON CONSTITUTIONAL LAW(6)

   Just as the Supreme Court leaves its mark on American society, so are social forces part of the mix of constitutional law. True, the Justices work in a somewhat insulated atmosphere. But, as Chief Justice William Rehnquist reminded us, the "currents and tides of public opinion ... lap at the courthouse door,"(7) for "judges go home at night and read the newspaper or watch the evening news on television; they talk to their family and friends about current events."(8) As such, "[j]udges, so long as they are relatively normal human beings, can no more escape being influenced by public opinion in the long run than can people working at other jobs."(9)

   Constitutional decision making, moreover, is a dynamic process that involves all parts of government and the people as well. Lacking the power to appropriate funds or command the military, the Court understands that it must act in a way that garners public acceptance. Its power, as the Justices themselves admit, lies in its "legitimacy," that is, "the people's acceptance of the Judiciary as [being] fit to determine what the Nation's law means and to declare what it demands."(10) This emphasis on public acceptance of the judiciary seems to be conclusive proof that Court decision making cannot be divorced from a case's (sometimes explosive) social and political setting.(11)

   A more telling manifestation of how public opinion affects Court decision making is evident when the Court reverses itself to conform its decision making to the social and political forces beating against it. Witness, for example, the collapse of the Lochner Era under the weight of changing social conditions.(12) Following Franklin Delano Roosevelt's 1936 election victory in all but two states, the Court, embarrassed by populist attacks against the Justices, announced several decisions upholding New Deal programs. In explaining this transformation, Justice Owen Roberts recognized the extraordinary importance of public opinion in undoing the Lochner Era: "Looking back, it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country--for what in effect was a unified economy."(13)

   Social and political forces also played a defining role in the Court's reconsideration of decisions on sterilization and the eugenics movement, state-mandated flag salutes, the Roe v. Wade trimester standard, the death penalty, states' rights, and much more.(14) Absent popular support, these decisions proved ineffective. In the end, as Justice Robert Jackson wrote, "[t]he practical play of the forces of politics is such that judicial power has often delayed but never permanently defeated the persistent will of a substantial majority."(15) Consequently, for a court that wants to maximize its power and legitimacy, taking social and political forces into account is an act of necessity, not cowardice.

   Beyond politics, courts have good reason to take into account the changing social meaning of the issues before it. When the "facts [underlying an earlier decision] have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification,"(16) a workable system of jurisprudence demands the repudiation of the old rule. In explaining its overturning of Lochner-Era decision making, for example, the Court pointed to the Depression and, with it, "the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in [Lochner-Era decisions] rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare."(17)

   Short of overturning earlier precedent, courts can look to changed social meanings when applying the same legal rule. Needless to say, the more flawed the underlying facts of the earlier decision, the more likely it is that courts will reach dramatically different conclusions. For example, after the American Psychiatric Association reversed itself in 1973 by concluding that homosexuality is not a psychopathic condition, the courts also reversed course.(18) In rejecting Immigration and Naturalization Service claims that homosexuals were "ineligible aliens" by virtue of their "mental defect," the courts looked to science's changed understanding of homosexuality in sorting out the meaning of "mental defect."(19)

   Education policymaking exemplifies the Court's willingness to take social and political forces into account in its decision making. Take the case of school desegregation. Beginning with Brown v. Board of Education,(20) the Supreme Court allowed its perceptions of elected government preferences to shape its decision making in this area. In an effort to temper southern hostility to its decision, the Court did not issue a remedy in the first Brown decision. One year later, the Court issued a weak-kneed remedy, recognizing that "varied local school problems" were best solved by "[s]chool authorities" and that delays associated with "problems related to administration" were to be expected.(21) By again taking into account potential resistance to its decision, the Court engaged in the type of interest-balancing that has set political parameters on judicial participation in equal educational opportunity.(22)

   Social and political forces, especially federal government efforts to enforce Brown during the 1960s, also figured prominently in the Supreme Court's approval of mandatory busing remedies in Swann v. Charlotte-Mecklenburg Board of Education.(23) Swann, however, went well beyond elected government preferences. During the Nixon and Reagan administrations, the Court and the elected branches of government fought a pitched battle over busing, a battle that has now abated. In 1991, and again in 1992, the Supreme Court recognized greater state and local control over public schools and, in so doing, narrowed its controversial hard-line position on busing.(24)

   In signaling an end to the era of mandatory busing, the Rehnquist Court did more than honor elected-branch preferences. The social meaning of school desegregation had undergone a radical transformation in the 1970s and 1980s. White flight from the cities to the suburbs and, with it, a diminution in the property tax base of inner-city schools cast doubt on the soundness of busing. Furthermore, opinion polls suggested that the minority community disfavored busing. Rather than expansive judicial...