According to a federal appeals court, Cleveland's school voucher program is unconstitutional because it's not generous enough. That, at least, was the implication of a recent decision in which the U.S. Court of Appeals for the 6th Circuit ruled that the program violates the separation of church and state.
The U.S. Supreme Court has said taxpayer money can go to religious schools without running afoul of the Establishment Clause if they receive it "only as a result of the genuinely independent and private choices of individuals." The 6th Circuit decided that wasn't the case in Cleveland, where about 3,800 students use grants of up to $2,250 each to attend private schools.
Although the vouchers allow low-income families to escape the city's abysmal public schools, the court saw only the illusion of choice. In its view, the fact that parents receive the tuition checks and decide where to spend them doesn't mean they're actually in control of the money.
"The tuition restrictions mandated by the statute limit the ability of nonsectarian schools to participate in the program," the court said, since "religious schools often have lower overhead costs, supplemental income from private donations, and consequently lower tuition needs." The judges seemed almost to be faulting the religious schools for being more efficient and better at attracting donations than their secular competitors.
Then, too, the court overlooked the possibility that parents might actually prefer religious schools. It viewed their prominence in the program -- four-fifths of the participating schools are church-affiliated, and they serve 96 percent of the students -- as evidence that religion is being foisted upon voucher recipients.
"The idea of parental choice as a determining factor which breaks a government-church nexus," said the court, "is inappropriate in the context of government limitation of the available choices to overwhelmingly sectarian private schools which can afford the tuition restrictions placed on them." Presumably, then, if the scholarships were bigger, and parents in the program could therefore pay the tuition at the pricier nonreligious schools, the judges would be satisfied.
This case is headed for the Supreme Court, where the size of the tuition checks and the mix of schools may not matter as much as the 6th Circuit seems to think they should. In the meantime, though, it's worth considering another approach to school choice that's less likely to be held up by the courts.
In a recent Cato Institute paper, policy analysts Darcy Ann Olsen and Matthew J. Brouillette propose a "universal education credit" that would allow people to deduct tuition costs from their state income tax bills. For each student, the credit would be worth up to half of per-pupil spending on public schools, which averages $7,000 nationwide.
Taxpayers could use the credit for their own children or someone else's. Both individuals and businesses also could choose to donate the money to a scholarship fund for students from low-income families. That way, even households with little or no tax liability would benefit from the program.
The Supreme Court has upheld tax deductions for educational expenses, so a credit probably would pass muster as well. Since it would simply allow taxpayers to keep or redirect their own money, it should not raise any issues under the Establishment Clause, no matter how popular religious schools turned out to be.
For the same reason, a tax credit would be less likely than vouchers to encourage further regulation of private schools. And by capping scholarships at half of what the public schools get for each student, the credit would actually leave them with more funding per pupil, undermining a favorite argument of the teachers' unions.
Olsen and Brouillette acknowledge that their proposal could be viewed as social engineering through the tax code -- the sort of thing libertarians usually oppose. But they argue that "the credit makes the state
more neutral about the types of education services people select for their children," because it eliminates "the state's financial discrimination against families who choose independent schools" and therefore pay for education twice.
The main advantage of a universal education credit would be the "universal" part. For all the enthusiasm (and antagonism) they have generated, vouchers and charter schools serve only 2 percent of American children. By contrast, a tax credit like the one Olsen and Brouillette recommend would make school choice possible on a large scale, introducing real competition to a market that for too long has been dominated by unresponsive bureaucracies.