- The Washington Times - Wednesday, July 23, 2003

Some members of Congress are raising concerns that the proposed legislation to allow children in the District of Columbia to choose private schools using their share of public funds raises constitutional concerns. If there’s one certainty in the debate over D.C. school choice, it’s that the proposal easily satisfies constitutional dictates.

Only one year ago, the Supreme Court removed any doubt about the constitutionality of allowing parents using public funds to choose their children’s school, even if the school is religious. What’s more, the court provided a clear road map for school choice legislation, which members of Congress followed meticulously in drafting the D.C. school choice bill.

The bill would provide tuition grants of up to $7,500 a year to D.C. families earning up to 180 percent of the poverty level. Parents would be allowed to select the public, private or religious school that best meets their children’s needs.

In the landmark 2002 decision Zelman vs. Simmons-Harris, the Supreme Court held that school choice programs, including religious schools, are permissible if two criteria are met: 1) The funds are transmitted to schools only as the result of independent parental choices; and 2) religious schools are one choice among a wider range of options.

In Zelman, the court applied the same principles it had applied in an unbroken line of six prior cases involving assistance to patrons of religious programs. The result in Zelman was urged by a wide array of legal academics, spanning the ideological spectrum, who agree on little except the constitutionality of school choice.

The D.C. program readily meets those criteria. Just as in the Cleveland program upheld by the Supreme Court, not a single dollar of public funds will go to a religious school unless a parent chooses to apply for the program and selects a religious school. The program makes no distinction between secular and religious private schools.

Although the court held that it was not essential to the holding, it examined the broader context of choices available to Cleveland parents. Likewise, D.C. parents also may choose traditional public and public charter schools. Indeed, the school choice provision is part of a larger legislative package that directs aid toward regular public and public charter schools. The bill’s “primary effect” — the court’s touchstone — plainly is not to aid religion, but to expand educational opportunities to children who desperately need them.

The court’s Zelman decision was so broad that school choice opponents subsequently withdrew a federal constitutional challenge to Florida’s school choice program, which is similar to the D.C. proposal. A challenge under the state constitution remains. But because the District of Columbia has no state constitution, only the federal Constitution arises. Any lawyer who would challenge the D.C. bill after the clear holding in Zelman would be flirting with sanctions for filing a frivolous lawsuit.

Opponents of school choice like D.C. Delegate Eleanor Holmes Norton and Sen. Dick Durbin know better. They are so bitterly opposed to the notion of economically disadvantaged D.C. parents exercising school choice that they will make any argument, no matter how palpably untrue, to prevent it. By raising the absurd specter of unconstitutionality, they are invoking the reddest of herrings to thwart the will of the residents of the D.C. as well as the aspirations of thousands of schoolchildren.

That the Supreme Court sanctioned school choice is not surprising. After all, the court nearly 50 years ago made a sacred promise of equal educational opportunities for every child.

The school system in our nation’s capital should be an example of excellence, not a national disgrace. We need to worry less about where our children are being educated and more about whether they are being educated. And we must use every tool at our disposal, including private and religious schools.

Fortunately for the promise of equal educational opportunities, the Constitution provides no bar to doing exactly that.

Clint Bolick, vice president of the Institute for Justice, was one of the lawyers who successfully defended the Cleveland program in the U.S. Supreme Court.

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