A Victory For School Children

Commentary by Pete du Pont

The recent decision by the Wisconsin Supreme Court that it's constitutionally acceptable to use tax-funded vouchers for elementary and secondary education in both secular and religious schools accomplishes at least three good things:

It gives 15,000 children from low-income families in Milwaukee an opportunity to escape terrible public schools and a chance to get a decent education.

It establishes a legal precedent that can help encourage tax-funded school voucherscholarships elsewhere.

It will force Milwaukee public schools to compete for students, and thus improve.
What the decision doesn't do, despite what opponents of school choice say, is break down any wall of separation between church and state or destroy the public schools.

The Wisconsin Supreme Court examined the state voucher law in the context of both the U.S. and Wisconsin constitutions, and determined that it did not violate the "establishment clause" of either. It ruled that the Milwaukee voucher plan meets the three-pronged test of the U.S. Constitution: "(1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion."

It also ruled that the plan does not violate the state constitution's ban on tax money going "for the benefit of religious societies, or religious or theological seminaries."

The court recognized that the money is going to parents, who choose where it is spent. For that matter, is there any reason that a voucher which a family spends to send a child to a religious elementary or secondary school is less constitutional than a payment to a student attending a denominational college (or even a theological seminary) under the GI Bill?

The Wisconsin Legislature approved a state-funded voucher program for Milwaukee in 1990, and about 1,500 children have been attending secular schools. The teachers' union tried to kill the program in court, but failed. In 1995 the legislature approved an expansion of the program to 15,000 children and allowing them to choose religious as well as secular schools. That's what prompted the latest court challenge, with the American Civil Liberties Union, the liberal organization People for the American Way and others joining in.

Some of the losers say they will try to take the case to the U.S. Supreme Court, but a lot of lawyers say the state court's decision was so strong that the opponents should perhaps reconsider. For example, Michael McConnell, a law professor at the University of Utah and a school choice scholar, said, "If I were advising the plaintiffs, I'd advise them not to take the risk of turning this into a national precedent. The odds are very good that the Supreme Court will affirm this."

The immediate beneficiaries will be the 15,000 children from low-income families who will use the vouchers. Milwaukee's schools are bad, and have long been bad. About 40 percent of the school district's 103,000 students are from poor families. Middle-class families fled the city in the 1980s - with the poor quality of the schools cited in polls at that time as a big reason.

The vouchers will be worth about $4,900 each. Milwaukee School Superintendent Alan S. Brown lamented that they would take away about $100 million in public school revenue. What Brown didn't say was that the district will get more than $7,500 for each of those children that the district doesn't have to educate any more, and will get to keep all but $4,900 of it, so the public schools will have more money per remaining student.

"This is no solution to improving the quality of public education in our city and the nation," the superintendent said of the voucher program and the court ruling.

But Mr. Brown is wrong. It is at least one solution. Faced with significant competition from the private schools, it's likely that, instead of drying up and going away, the public school system will improve and innovate in an effort to keep the children it has and lure others back.

School choice supporters hope so. School choice is about what the name says - choice. It's about the liberty to choose what is best for your children. It isn't about replacing the public schools. Besides, government schools control 92 percent of all the money spent on elementary and secondary education, and that percentage isn't likely to change significantly any time soon.

Right now, there are too many mediocre or bad public schools with no motivation to improve because they have a monopoly. Maybe the Wisconsin decision will encourage innovative challenges to that monopoly all over the country. The school children would benefit. So would teachers, no matter what their unions say. And so would the country.

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