June 28, 2002

Judgment Day for School Vouchers

10 a.m. – 12:30 p.m.
National Press Club
Washington, D.C.

Panelists include:
Mark Chopko, General Counsel, U.S. Conference of Catholic Bishops

Judith French, former Assistant Attorney General, State of Ohio; argued Zelman case on behalf of Ohio before the Supreme Court

Ira (Chip) Lupu, Louis Harkey Mayo Research Professor of Law, The George Washington University Law School; Co-director of the Legal Tracking Project of The Roundtable on Religion & Social Welfare Policy

Nicholas Miller, Attorney, Sidley, Austin, Brown & Wood; Co-counsel for the plaintiffs/respondents in Mitchell v. Helms, 530 U.S. 793 (2000); Board of Directors, Council on Religious Freedom

Elliot Mincberg, Co-counsel for opponents of school voucher plans in Cleveland, Milwaukee, Pennsylvania and Florida; General Counsel and Legal and Education Policy Director, People for the American Way

Father William F. Davis, OSFS, Deputy Secretary for Schools (Catholic Schools and Public Policy), U.S. Conference of Catholic Bishops

Marc Egan, Director, Voucher Strategy Center, National School Boards Association

Rev. Tim McDonald, President, African American Ministers Leadership; Pastor, First Iconium Baptist Church, Atlanta, Ga.
Virginia Walden-Ford, Executive Director, D.C. Parents for School Choice, Inc.

Moderators:
E.J. Dionne, Jr., Senior Fellow, The Brookings Institution, and Co-Chair, the Pew Forum on Religion and Public Life

Melissa Rogers, Executive Director, the Pew Forum on Religion and Public Life


PANEL ONE TRANSCRIPT

MELISSA ROGERS: Good morning. I’m Melissa Rogers, executive director of the Pew Forum on Religion and Public Life. We’re supported by The Pew Charitable Trusts, and we’re very grateful for that support.

The Pew Forum is co-chaired by two notable leaders in the field of religion and public life. E.J. Dionne, who is with us this morning, is one of our co-chairs. He is a senior fellow at the Brookings Institution and a columnist at the Washington Post, and we’re very honored that he is here and will chair the second panel in just a little while.

Jean Bethke Elshtain is the other co-chair of the Forum. She is the Laura Spelman Rockefeller Professor of Social and Political Ethics at the University of Chicago and could not be with us today, but sends her greetings.

I also want to recognize very briefly the Pew Forum staff who are here and have worked so hard to put this event together: Sandy Stencel, Amy Sullivan, Heather Morton, Kirsten Hunter, Christina Counselman and Kayla Drogosz, as well as our interns, Brenna Moore, Jennifer Ludwig and Meredith Stewart. I particularly want to thank Meredith, who has served as our early-warning system on this case for over a month, watching to make sure that the Court didn’t surprise us with an early ruling. And indeed, they didn’t, but Meredith faithfully carried out that role, and I want to thank her.

Thank you all for coming. We have some great experts with us not only up here but in the audience today, and we’re looking forward to getting to the discussion period.

Let me give you an idea of how the morning will proceed. The first panel is made up of constitutional litigators and scholars who have great experience with the Zelman case and other issues at the very crux of religious institutions and government funding. This is a great bunch because they are not only brilliant lawyers, but they can also speak English. That’s always appreciated.

The panelists will make brief remarks in just a moment, and then we’ll go to your questions and comments. Around 11:15 we’ll have a short break and go to our next panel, and I’ll turn the mike over at that time to E.J. Dionne. This panel will include a distinguished panel of religious leaders and educational policy experts and activists who will discuss the impact that this decision will now have on the debate over educational policy. In other words, they’ll address the question of: now that the Court has found that this plan is constitutional, is it good policy? A discussion period will follow this panel as well.

Before I introduce the speakers, let me give just the briefest overview of some of the highlights of the decision that came down yesterday to set the stage for their comments. As you know, the judgment on the constitutionality of the Cleveland school voucher plan was favorable by a 5-to-4 vote of the Court in a majority opinion written by Chief Justice Rehnquist and joined by Justices O’Connor, Scalia, Kennedy and Thomas. The Court ruled that the Cleveland voucher plan does not violate the Establishment Clause of the Constitution, which prohibits the government from advancing religion.

The majority relied heavily on the fact that, as they characterized it, the program was a true private-choice program in which government aid goes to a wide spectrum of individuals defined only by financial need and residence and reaches the religious schools, as they said, only as a result of the genuine and independent choices of private individuals.

Significantly, they considered the Cleveland community and magnet schools when determining the constitutionality of the voucher plan and viewed the fact that the parents take their tax-funded check and endorse it over to a particular school as important.

Now as you know from reading the opinion, the dissenters cast this decision as a fundamental break with core Establishment Clause principles, and the Court majority very strongly disputed that claim. The Court majority, in fact, called it part of an unbroken line of cases that allow what they call “indirect aid” to flow to religious as well as non-religious institutions.

Now regardless of where you stand on the merits of the issue, the opinion is notable for the fact that the Chief held five votes in a rather clear opinion, especially in contrast with some other recent opinions in this area.

There were two concurring opinions – one from Justice O’Connor and one from Justice Thomas – and what was in the opinion of Justice O’Connor was notable, but it was also most notable for what wasn’t in there. She did not attempt to limit the majority opinion and instead wrote just to stress a couple of points. She stressed particularly that she felt that this decision was not a break with core Establishment Clause principle, and on this issue, she and Justice Souter had an interesting colloquy, as they did on many other issues, and I’m sure we’ll get to that. She also stressed that she felt it was important to consider, as the Court did – in her words – “all reasonable alternatives to religious schools that are available to parents” because, as she put it, “to do otherwise is to ignore how the educational system works.”

Justice Thomas also wrote an opinion – a very interesting one – and one of the points it stressed was, in his mind, that the promise of public school education has failed poor, inner-city blacks, and he covered a few other interesting points that we may be able to get to later.

The main dissent on the case was written by Justice Souter and joined by Justices Stevens, Ginsburg and Breyer. Justice Souter’s dissent – a very lengthy one, as is his wont to do – describes a history of progression in his mind by the Court away from core Establishment Clause principles and states that “not until today has the substantiality of the aid clearly been rejected as irrelevant by the majority of the Court.” He says that the majority’s criteria not only don’t work, but eviscerate core Establishment Clause principles, and concludes his opinion rather dramatically by saying that “I hope a future Court will consider today’s dramatic departure from basic Establishment Clause principles.”

Just to round out the quick comments here, Justice Breyer also wrote a very interesting dissent, and he described the Establishment Clause role as “protecting the nation’s social fabric from religious conflict,” stating that “all religious institutions cannot be given equal opportunities to the government funding and trying to do so not only turns back the clock on the Constitution, but creates a powder keg in our society.”

Justice Stevens’ opinion was short and noted that, in his mind, the severe educational crisis noted in Ohio should not matter to the decision on constitutionality.

Let me now turn to introduce each of our speakers, who will provide you with much more detail and commentary and opinion on this very important decision.

First, I’d like to call on Judi French. Judi is currently serving as chief legal counsel to Ohio Governor Bob Taft. At the time that this case went before the Supreme Court, she was serving as assistant attorney general in the state of Ohio, and she argued the case on behalf of the state before the Supreme Court. I think that anyone who was at the oral argument will agree that, no matter how you feel about the merits of the case, Judi argued this case beautifully and she really did an outstanding job.

The opinion took so long to come down she has time to change jobs twice – (laughter) – in the intervening time, so I do want to make clear that she has changed jobs at this time and is now serving as chief legal counsel to the Ohio governor. She has been kind enough to make a hasty trip to join us, and we’re very grateful for her patience and flexibility.

So let me first call on Judi to give us her thoughts on this important case that she won yesterday in the Supreme Court.

(Applause.)

JUDITH FRENCH: Good morning. Thank you all for being here. Thank you to the Pew Forum for having this discussion and for having me. I’ve been smiling for approximately 24 hours now, so this gives me yet another opportunity.

I thought what I could contribute today is just give you a little flavor of what our strategy was like going in, from the state of Ohio, and how I see some of those points reflected in the Court’s opinions.

My first job – first and foremost – was to be from Ohio, the way that it is today -to tell the Ohio story, to put it in our words, to let the Court know that this was not about every voucher program that could ever come along. This was about Cleveland, it was about how the Ohio General Assembly addressed a very serious problem in the Cleveland educational crisis.

We thought that that was very important for several reasons. For one, if you know Justice O’Connor’s opinions – and we knew, of course, that she was the one we absolutely had to have in the majority – she often looks to the history of a program, to some legislative history, which we do not have in Ohio, but even though purpose was not at issue here, we thought it important to let her and the other members of the Court know there was no funny business here. I mean, there really was a serious educational crisis and that’s really what we were trying to address.

The other is that, within Ohio and across the country, cities are very different and we needed to tell the Court about that. The demographics of Cleveland are different from the demographics of Columbus, and the fact that there are so many religious schools in Cleveland and participating in the voucher program has nothing to do with the voucher program; it has to do with Cleveland and how the schools there operate, and the schools, quite frankly, who are known in the area as having a good reputation for education. And I think that’s reflected in Chief Justice Rehnquist’s opinion where he talks about the absurd results that would occur if we looked at the numbers of schools in any way other than as a result of private choice by the parents.

The other thing in telling that story was that we just wanted to be direct; that’s one of the rules that I certainly learned in law school – that’s what you do at oral argument – is you answer the question. There are things about this program that we would like to change. It would have been nice if the numbers looked a little bit different, but we had to deal with the case that we had, and in answering the questions just to say it’s true that there are – there is a very high percentage of the parents – I think it’s 99 percent of the kids now go to parochial school, but let me tell you why that is. It has to do with the demographics again and just the way that the program played out. So it was kind of a straightforward approach of just tell the Court what it’s about.

At one point I used in my moot courts an analogy involving Archie Griffin, but I found that that wasn’t very useful outside of Ohio – (laughter) – this is sort of that Archie-Griffin-straight-up-the-middle, no-flare-about-it kind of thing, but – see, it didn’t work. (Laughter.) So that was kind of just in terms of telling the Ohio story.

The other thing is that we wanted to distinguish between the direct aid cases and the indirect aid cases. We saw this case as easier than Mitchell and Agostini, and we saw that reflected in Justice Rehnquist’s opinion where he relies on Mueller, Witters and Zobrest, and that was – the strength of our brief was to say look at these cases. You don’t have to worry about Mitchell and Agostini; those are too difficult. Look at the indirect aid cases where the money gets to a parochial school because a parent has decided. So we really tried to get that great distinction there.

And we also wanted to do what Justice O’Connor said, which was this is a small step. This is the same reasoning that you’ve been applying for a long time. This is what you applied in Mueller and Witters and Zobrest. Zelman is another case in that line of cases. It’s not the end of the world, it’s not a huge leap; it’s just a small step using this same reasoning.

The final thing I would mention is just the records. I’m relatively recent to this case and certainly to the school-choice movement. I got the case just after it left the Sixth Circuit, so I only became involved in the cert stage. The record was enormous in this case. There was an awful lot of factual information that you see reflected particularly in the dissents, but also in Justice O’Connor’s opinion talking about the surveys that were done of the parents, the affidavits of the entrepreneurs that we involved in establishing this program, setting up the reasoning again for the program, putting it again in context, talking not so much about the academic effectiveness – although that information was there – but how much the parents really like this program, and in that respect, how effective it was. So we felt that was important, although there were some people that argued that maybe that wasn’t so useful. I got beaten up in moot courts quite a bit over that as well.

The final thing that I could offer from the Ohio perspective is, where we go from here. As you might imagine, there is a lot of debate about that. There has been for the last 24 hours, and certainly will be for awhile. Our legislature is out of session, and they won’t return until September to do any real substantial work, and I fully expect there to be cries for expansion of the program, both in terms of dollars and in terms of schools.

My current boss, the governor, has been I think a little bit more cautious, saying that this was enacted as an experiment. The title of the program is “Pilot Project.” It started with kindergarten through third grade and then each year has added an extra year until reaching the eighth grade, so we don’t yet have kids who started in the kindergarten and have gotten all the way to eighth grade yet. And we haven’t seen the program without a cloud of litigation hanging over it. So it really has been enacted as an experiment and we’d like to see it continue as an experiment and see what results come from that.

In the debate about what to do from here, what I like to stress – before the Court and certainly before a lot of people afterwards – was that this case was not about whether there should be voucher programs. We didn’t make the briefing about whether there should be voucher programs. We wanted to argue that there could be voucher programs, and we wanted there to just be clearance by the Court to get over that constitutional hurdle. So I didn’t feel it was my job to defend vouchers; I felt that it was my job to say why this particular program was constitutional, and fortunately, we were successful in that respect.

So I’ll wait for questions. Thank you.

(Applause.)

MS. ROGERS: Thank you so much. I suppose that this is the “could” panel and the next panel is the “should” panel. (Chuckles.)

It was interesting to hear Judi lay out her theory of the case because that theory was so much embraced by the justices in their majority and concurring opinions, so that’s a credit to her lawyering.

I next want to call on Elliot Mincberg, a good friend and vice president, and legal and education policy director of People for the American Way. Elliot has also been a key player in this litigation as well as other litigation over voucher programs in Milwaukee, Pennsylvania and Florida.

I think it’s always heartening for a constitutional litigator to know that a Supreme Court justice reads and cites your materials, and I noticed that Justice Souter did that with People for the American Way’s materials yesterday. Of course, you’d rather it be the majority – (chuckles) – than the dissenters, but hey, if you’re going to get neither, you’d rather have somebody, certainly, looking at your materials than not. So Justice Souter did draw on the People for the American Way’s materials, and that certainly a credit to them.

Elliot is very widely experienced in these areas, and I welcome his comments next for a different perspective on this issue.

Thank you.

ELLIOT MINCBERG: Thank you very much, Melissa.

You know, I could have saved the Pew Forum the labor of checking every day to see when the decision was going to come down because about three months ago I had a commitment to be out of town yesterday, so I’ve been predicting for three months – (laughter) – that the decision would come down yesterday. That prediction was right. That’s about it.

Thanks to the wonders of the Internet and the telephone, I’ve had plenty of opportunity to read and talk about the decision since then, and I’m happy to share some thoughts about it.

What we’ve said about the decision is that we strongly believe that it opens a major crack in Mr. Jefferson’s metaphorical church-state wall separation, and a good part of that wall is coming tumbling down on Cleveland’s public school children – not just because of the resources that are lost from the voucher program, the fact that the choice is for schools, not for kids, but also coupled with the fact that the state has not obeyed its own Supreme Court that three times has said that the funding for public schools in Cleveland and elsewhere is inadequate. Most of that discussion will come in the second panel.

I want to talk about two areas legally with respect to the decision. First, its effect on broader church-state principles, and second, its practical legal effects as we go forward in those areas.

In terms of principle, I think it’s very clear that this decision significantly undermines the basic principle of Madison and Jefferson that compelled taxpayer money should not be able to go to support religions that individuals may disagree with. Now traditionally the rule has been that when money goes to an individual taxpayer and the taxpayer makes a genuine and independent choice about what to do with that, that doesn’t fall within that principle. For example, if you are a government worker and you get a paycheck, and you can spend it in an infinite variety of ways, and you contribute to a church; that’s not a church-state violation. Or in the Witters case, when a blind student got vocational aid and could spend it on a huge variety of institutions, only a small minority of which were religious; that was not a federal church-state violation. And the majority paid lip service to that principle but basically twisted it beyond recognition because, in fact, in this case, the only thing you could do with the voucher was to in fact spend it on a private, largely religious school.

Nonetheless, as Melissa pointed out, the majority looks at choice in the sense of where one can go to school – which of course is irrelevant to the Madisonian and Jeffersonian principle of what you do with the money and whether taxpayer money is used to support religion that one disagrees with. Souter makes this point in much more detail in his opinion, but what that part of the decision also effectively does is effectively overrule – although silently – a critical holding in the Nyquist case, which was a voucher-type program in New York. The exact same argument effectively was made there as was made here. The defender said, look, the state gives a lot of money to public schools. Kids can always choose to go to public schools. Why doesn’t that solve the problem? The Court said, of course not, because what we’re looking at is what the choice is with respect to the money in the program that we’re dealing with – the voucher program – and there the result is to overwhelmingly favor religion. By doing what they’ve done, at least in theory, what the Court is saying is that essentially any time there is a choice, there is a secular alternative that is widely available, any kind of funding, even if it is specifically designated for religion, even if there had been zero non-religious private schools in Cleveland would, in theory, be acceptable.

But secondly, I think the Court significantly undermines the principle and the true meaning of the concept of neutrality under the Establishment Clause. I’ll only talk about this briefly. Souter, again, does it very well, and I’m not only referring to him because he cited our reports; it’s because he’s a very good justice. (Laughter.)

The majority says essentially that this is okay because it’s neutral in theory – in theory – that suburban public schools could participate in this program. But as Souter points out, in practice – due in large measure to the structure of the program, the way it’s financed – those things don’t happen. And in fact, in practice, money goes to religious schools in an overwhelming basis. It seems to me, again, that the Court is exalting form over substance by talking about neutrality in what I think is a facial, theoretical way.

And I think the third theoretical, doctrinal issue that concerns me about the Court’s decision is its undermining of the notion of substantive neutrality as it relates to religion and government. The traditional point of view has always been that religion gets exempted from a number of rules that apply to non-religious organizations, such as discrimination rules. But also, religion doesn’t get government support, and that produces what is often called substantive neutrality; in substance, the government is neutral towards religion by acting that way. Both halves of that substantive neutrality have been significantly undermined by the Supreme Court.

In the Oregon v. Smith case, the Court took care of the free exercise part of that by saying that it was not going to give special benefit to looking at religion in that respect. Now the Court has effectively abolished in many ways the other half of that by saying effectively if a public institution is available for the funding, we don’t see any reason why — at least if the parents come in as the intermediary – you can’t provide that same funding to religious institutions. And the effect of that, I think, is going to be very dangerous to religion for precisely the reasons that the founders talked about the Establishment Clause, and we can see that in some of what Justice Souter said in his opinion.

The Ohio law says very specifically that religious schools funded under the law aren’t supposed to be able to be teaching hate, or disrespect — or whatever the term is – towards people based on their religious views. It says that private schools participating are not supposed to discriminate on the basis of religion, which at least as the statute is read ought to apply to discrimination employment as well as to discrimination with respect to which students are accepted. And what we’ll hear more and more in Ohio and elsewhere is that if religious schools are going to get public money, they ought to be subject to exactly the same civil rights principles, accountability principles, testing requirements, disclosure requirements that public schools are as well. That makes perfect sense. But I think from the religious liberty perspective it will undermine, not enhance, religious liberty.

Now the four-person minority made very clear that in their view this is an illegitimate decision and it may well be, if the composition of the Court changes in the right direction, that there may be changes in this in the future. Although, as Chip points out, whether that will happen practically is a difficult question to say. It certainly underlines the importance of the next Supreme Court appointment.

Let me briefly talk about three practical aspects from a legal perspective. First, while this is an important milestone, it is by no means the end of the legal road because despite the fact that the Court has said that it is okay under the federal Constitution, there are many, many state constitutions that have much more specific provisions in them that say that taxpayer money shouldn’t go to support religious institutions directly or indirectly.

That’s what happened in the Witters case. Even though it was okay under the federal Constitution, the Washington state Supreme Court said it wasn’t okay under the state constitution and in fact that decision was upheld. In less than a month there is supposed to be an argument in Florida on that very subject on the Florida voucher program in front of a Florida court.

Second, as Judi already pointed out, I think the impact of this decision will be limited by the fact that all the Court said was that you can have vouchers; not that you should or will, and as the next panel will talk about very much, that is not necessarily the case.

But third, although this may have a lot of impact in areas outside of schools, there are factors that may limit that issue, as well. First of all, the notion of direct funding from government to religion may still be an area where O’Connor will be the deciding vote, and it is not quite as free as it is in the sort of indirect funding, so that direct funding in the charitable choice context may still be a problem.

But even consider the issue of vouchers and charitable choice. For some social service programs – let’s say drug abuse situations – where the government worker wants to counsel the drug abuse victim as to what program they ought to go to, will that be found to be genuine and independent choice in the context that it was in the voucher program? So there are serious legal practical issues in terms of the application of the program and others areas, as well, and I think time will tell.

Overall, there is no question in our mind that the decision is a negative one, but there is also no question in our mind that the fight with respect to school vouchers has only just begun.

Thank you.

(Applause.)

MS. ROGERS: Thank you very much, Elliot.

Next I’d like to turn to Mark Chopko, another friend who is the long-time general counsel for the United States Conference of Catholic Bishops. He has worked very long and hard on this issue as well as many other key religious liberty issues over the years, and he has published numerous articles in this area.

One of his publications particularly caught my eye. It’s entitled, “Can a Good Christian Be a Good Lawyer?” (Laughter.) Many would say no, but Mark is actually excellent proof that the answer to that question is yes. So let me call on Mark.

MARK CHOPKO: I wish I could take credit for the title. (Laughter.) It was added by the Texas Tech Law Review to its compendium. My piece of that was called “Private Lives and Public Virtue,” about the way that lawyers have to live out who they are. And I think that that’s some of the witness the people in the religious liberty practice have tried to do, sometimes imperfectly.

We are in this case primarily for two reasons. One is our interest in constitutional law and the way that that shapes realistic relationships between the way government actually functions and the way religious institutions actually function in this society. And second, because of the longstanding interest that we have in the promotion of parents’ rights and their participation, fully, in educational opportunity in the United States. The first case that my office did, although I did not participate in this case, was Pierce against Society of Sisters in 1925. (Laughter.)

That case bears out the long witness that we have had for educational opportunity and the rights of parents in the United States. I always said that the easier issue in this case was the constitutional law issue, and that once the easy issue got off the table – which I think many people had used as an excuse not to engage the harder questions – the real hard issues would emerge and they would have to be discussed – as they should be – by the people in communities and school boards, on legislatures. Indeed, everyone around the country ought to be focused on quality of education, distraction from other agendas, strengthening public and private education, looking realistically at the opportunities that parents have, especially taking a hard look at the delivery of educational services to those who need them most, and that’s where I think the witness of my community – the Catholic community – has been important.

Justice Scalia noted in questions during oral argument, for example, that when everybody else left the inner cities, the Catholic schools and other religious schools stayed. Things have changed in Cleveland, but it was nice to have some credit where credit is due, that the witness of the schools in that community has been important.

The issues that we briefed in the case, I think, were reflected in the decision, and I’ll make three points about the decision, reflecting both what we had written before and what we briefed on other cases, and how the case shook out.

My own view on this is found in an article called “Vouchers Can Be Constitutional,” which was written in 1999. This is what I thought was an accurate statement of the law then, and I still think it’s an accurate statement of the law. I made that point to the guffaws of a Washington Post interrogator in 1997 after Agostini, when I pointed out that it seemed to me that the criteria that the Court had laid out in Mueller and Witters and Zobrest already demarcated a path for the Court to effectively rule in favor of a carefully designed voucher program, and that was indeed the case here.

The second point that we made in our brief and that we’ve made in scholarship was the primacy of design. It was possible to design programs that were unconstitutional, but that if we looked carefully at all the various elements – the breadth of the class of participation; the neutrality of the selection criteria (indeed, means testing, I think, is important; the fact that there were no incentives that were created for religious schools or even against religious schools, notwithstanding the comments in the majority opinion) – all of these things led to the primacy of design as important. And why is that important? Because the Court can’t sit there and review details of each and every voucher plan that comes along, and it won’t. So therefore, the Court is not focused on – as it says in one footnote – looking at the annual reports of participation and judging constitutionality based on some fluid measure, but rather would look at the program to see whether it is carefully and properly designed, and if so, let that program go into the future, confident that the legislature made correct choices. So the primacy of design is lifted up in this opinion.

And third, the reliance was on the record, rather than speculation and presumptions, both about the motives of parents, the nature of the community, the nature of schools – especially religious schools. If there was a reference to “pervasively sectarian” in the opinion, I would suggest it was inadvertent. It seems to me that the Court is looking, in fact, at why do parents make these choices, what are the choices available, and the totality of real-life choices to people in Cleveland, and abandoning presumptions and speculation, as it left it behind in Agostini five years and confirmed that trend two years ago in Mitchell v. Helms. Is there truly independent private choice? I think there was.

Let me make four brief points about the impact of the ruling for the future. Obviously design matters. I think that people are going to look at the way that the Cleveland program was designed as a template for how these programs can be designed in the future. Certainly from our perspective as the Catholic Conference, we have always thought that programs that were aimed at people at or below the poverty line were important programs and that that’s an important part of our social policy that probably Father Davis will get to later in the second panel.

The second thing that I would lift up for the future is that totality of choice matters. It’s not speculation about what is or might be or could be; it’s what – it is in fact what exists in this community.

The third point that I would lift up for the impact in the future is that there isn’t a hidden agenda — and this is why I think it’s important that Nyquist survives and is distinguished – that we think that it’s important that you can’t legislate with winks and nods; you have to mean it, and that courts are empowered to look at this as common law courts. So the Court specifically looked at why the Cleveland program existed and why it was important within the totality of the program that Ohio had. And there can’t be a hidden agenda. You can’t have a hidden agenda to kind of shovel money to religion, which would be unconstitutional. Similarly, just one of the reasons that we stand with people like People for the American Way, criticizing the Smith decision, is that there can’t be a hidden agenda on the other side, that you can’t pick magic words and phrases and use the law to penalize the religion. Just don’t mention the words. So there can’t be a hidden agenda, and it falls on both sides of the constitutional line. And I think that it also preserves for the future the distinction between direct aid and indirect aid. So I think that those are things that are going to fall out of that.

Let me just mention what I consider three interesting aspects as a lawyer, and then I’ll quit, I promise. The three interesting aspects, to me anyway, were O’Connor’s role. The Washington Post noted it in a few kind of sentences at the end, but I found it amazing that she did not limit or qualify her participation in the majority opinion at all. In fact, she used most of her pages to square off against Justice Souter, and she in fact broadened the rationale of the majority, which suggests that there may be, you know, greater room for operation of legislatures in the future. That’s one of these things, these constitutional puzzles that will keep people like me gainfully employed for years to come – (laughter) – which is a good thing.

Second, I’ve already mentioned that there doesn’t seem to be any mention of the nature of religious schools. That’s just not an issue in the majority opinion. So if you look at this for the future, it seems that the Court is saying so long as we’re convinced the design is right and that there is a wide range of choice legitimately and truly and privately available to taxpayers, citizens, parents, then it’s not going to look at the character and quality of the providers, which I think at least cast in doubt some of the comments of my colleague, Elliot Mincberg.

And the third thing is that I think hard questions remain, and thank goodness this panel doesn’t have to face them because I think the public policy questions are really the heart of the matter, as is where it should be, for the people in our communities, in our states, and in the United States.

Thank you very much to the Pew Forum. Congratulations, Judi.

(Applause.)

MS. ROGERS: Thank you very much, Mark. I’m sure we’ll get to those comments in the question-and-discussion period. Mark has raised a lot of key issues for us to debate a little later.

Let me next call another friend, Nick Miller, who is currently practicing at the law firm of Sidley Austin Brown & Wood. Before that, he served as executive director on the Council on Religious Freedom, a project affiliated with the Seventh Day Adventists Church that focuses on First Amendment issues. And Nick significantly was the second chair in the Mitchell v. Helms case decided in the year 2000, and wrote a really excellent brief in that case. He did not have as much as success as he would have liked with it, but it produced a much more fractured opinion. So we’ll view that as a success of some sorts, I think. And he has worked very hard on Free Exercise issues, along with Mark and Elliot. And that’s important to note, that there are many things that unite this panel on the Free Exercise side of questions, even as some Establishment Clause issues divide them.

So let me call on Nick now to offer his view of this opinion.

NICHOLAS MILLER: Thank you, Melissa. And I think that is the most surprising thing about this case. In Mitchell v. Helms we managed to pick off O’Connor; didn’t win her over, but prevented a very broad decision from coming down. And in this case, obviously, there’s a unified majority.

I want to say at that outset that I’m someone who’s very sympathetic to school choice and to religious schools in general. Society of Sisters is one of my favorite decisions. I am a grateful recipient of 16 years of Christian education. I plan to send my children to church schools. And my church, the Seventh Adventist Church, has the second-largest parochial school system in the world, just behind the Catholic Church. So therefore, I hope that this decision is good for religious schools, but I fear that it may well not be. Indeed, I think Zelman may well be bad for religious freedom generally, and bad for religious schools in particular. I’ll explain why, and there’s two main points. But first, let me put the decision in a larger context.

Elliot touched on this. Twelve years ago, in the Smith decision, the Supreme Court, in the words of the Harvard Law Review “eviscerated” the Free Exercise Clause. Yesterday, in Zelman, the Court apparently has abandoned long-standing Establishment Clause principles prohibiting tax support for religion.

Now, many observers view these decisions as being in tension or downright conflict. One decision seems to be anti-religious rights, and the other decision seems to actually be supportive, perhaps, of religions, allowing them to use tax monies to fund schools. People have puzzled over the apparent inconsistency of the Court on this, but I think there’s an underlying theme that explains and unifies these decisions, and it’s not support or hostility or even neutrality towards religion, rather there’s one word that can describe this theme, and that is majoritarianism – giving power to the majority in religious matters. In Smith, you had the Court turning to the legislature and saying, the legislature will now worry about protecting religious freedoms — the majority-controlled legislature. Now, in Zelman, it has given power over the funding of religion to those same legislatures, where of course majority and popular religions will be at an advantage.

Both decisions, I believe, misconceive the role of the courts in our constitutional scheme, which is, in my view, to protect religious minorities, under the religion clauses, from both the insensitivity or hostility of majorities, or from having to support religious views with whom they don’t agree with their tax dollars. For this reason, I believe both decisions are tremendous setbacks for religious freedom in America, although for different reasons; and of course we’re looking at Zelman today.

Now, it will be argued that Zelman that does not, in fact, give legislatures the ability to support majority religions because, in fact, the decision about where the money goes is in the hands of the private individual, and the money is guided by private individual choice and not by the government. But this assumes that truly neutral voucher schemes can be created. I think that’s an unsafe assumption. To begin with today, even the Cleveland voucher system, those religions that have existing school systems will be favored. The Catholics and the Adventists will do pretty well, but those who don’t have systems won’t have their particular religions advanced by taxpayer money.

Now, you say, well, other religions could get their act together and put some schools together, and they may well do that, but I suspect that we will very quickly see disfavorable treatment of less popular groups. I question in the current climate whether Muslim schools, for instance, will receive equal treatment with other types of schools, whether schools sponsored by Farrakhan will get funds. And this is, I think, a concern that drive Justice Breyer’s opinion and dissent. But I think even more profoundly than the difficulty of creating a truly neutral program is the fallacy of the public/private choice distinction, at least as embraced in this case. What the majority has assumed is that society can do directly that which it is forbidden from doing indirectly through its representatives. That is, that society can directly use taxpayer money to fund systems of religious teaching, even though its representatives cannot do that.

Now, the founding fathers considered this distinction and rejected it. James Madison and Patrick Henry engaged in a very historic and well-known debate in the 18th century over a similar funding scheme in Virginia, the closest you’ll ever see to a neutral system in the 1700s. Patrick Henry’s bill to establish teachers of the Christian religion –really there were only really Christian religions in Virginia of the day — levied taxes and then returned those taxes to the individual preferred religions of the individual taxpayer. There were even exemptions for the Amish and the Quakers, who didn’t have a professional clergy. And those who had no religious preference, there was a fund set up in the legislature to support religion generally; so, as close as you’ll come to the kind of voucher scheme we’re looking at today.

James Madison wrote his famous “Memorial and Remonstrance” against this particular scheme, and he didn’t say, we fix it by making it more neutral or more widely applicable; he said the principle at heart is being violated of religious freedom. And in point one he said society cannot force people to support religions that they do not agree with, and point number two was that the legislature cannot do it. Now the Supreme Court has taken that and turned it on its head and said, while the legislature cannot do this directly, we think that society can.

I know, according to Chief Justice Rehnquist, that the 80 percent religious schools in the program reflect the fact that there are 80 percent or so of religious schools in the community. So what about communities where there’s a higher percentage of one particular religious group?

It would seem that the school systems there will very quickly reflect the religious views of the majority in that neighborhood, with many religious minorities not having the critical mass to be able to put together a school of their own. I think this afternoon’s panel will talk further about the funds going from the public schools to the private schools. To get a good education, you’re going to have to choose a private religious school where you’re not a religious member. And this is not speculation, because in Cleveland that has happened presently. Two-thirds of those that are using the vouchers are going to schools run by churches that they are not members of. Polls have shown that the consideration about where to go using the voucher — very, very few of the students actually were interested in attaining a religious education at the school.

Now, I think there is a serious constitutional problem with this. It’s a de facto establishment. I think under Madison’s reasoning that there’s no distinction between society and legislature as far as what it’s forbidden to do in the area of religion. But I think it’s also very bad for the religious schools. It gives you a student body that is much less invested and much less committed to the religious mission of the school. And also, it creates a program where the government feels constrained that they are going to prevent discrimination – choices made by the school on the basis of religious criteria.

Justice Souter points out, as Elliot touched on, that the Cleveland program prohibits discrimination on the basis of religion. Now, prohibiting discrimination always sounds like a good thing, except when you understand that making choices between competing value systems is how religious groups, and indeed any other group, defines itself. But for religious groups, it’s especially important because they exist because they have a religious mission. If you can’t choose your student body and you can’t set student body lifestyle standards based on that religious mission, you very quickly water down your religious mission. And even more importantly is the ability to hire staff members and teachers based on religious criteria. And I think that while the majority opinion did not discuss this at length, as Mark has pointed out, it certainly referred to the discrimination provision in the Cleveland voucher system, and I think in future cases that will play a significant part of the decision.

So I think that now that vouchers are going to be instituted, religious schools may well have to accept them to survive in a competitive educational market. If an individual has two religious schools to choose between and the only difference that he can see is that he has a $3,000 voucher he can spend at one, the one that you can’t use it at will be at a great competitive disadvantage. But to accept the vouchers means that they will likely have to give up the main way in which they define and carry out their religious missions; the ability to choose students and staff that have a commitment to the school’s religious ideals.

The cost of the voucher system to the state legislature, and even the public school system, may be miniscule compared to the cost of the voucher system to the mission and identity of religious schools. I may be wrong, I hope I’m wrong, but I fear that this will happen, and it will serve as another indicator of the practical, moral and legal bankruptcy of the majoritarian view of the Bill of Rights, now espoused by a majority of the Court.

Thank you.

(Applause.)

MS. ROGERS: Thank you very much, Nick. We’re going to have a lot to discuss in a few minutes, I know.

I want to call next on another friend, Chip Lupu, a distinguished professor at George Washington University Law School. He is the Louis Harkey Mayo Research Professor of Law. I’d also like to recognize Chip’s colleague, Bob Tuttle. Bob is Chip’s colleague at GW, but also his co-author in terms of many law review articles of great significance in this area. And one of those articles that deals specifically with the issue of vouchers is available on the tables at the outside of the room, so please do pick up that very cogent and insightful article. Bob and Chip are also co-directors of the Legal Tracking Project of the Roundtable on Religion and Social Welfare Policy. And if you’ll permit me to just say a few words about this very interesting project, I’d appreciate it.

The project is a key one that will address important topics dealing with, as the title suggests, religion and social welfare policy. It is supported by The Pew Charitable Trusts, so we’re sister projects in that way. Neither of us speak for Pew, we’re quick to add, but we are graciously supported by Pew. The Roundtable invites a group of scholars and leaders to track and evaluate social science research regarding the role and effectiveness of faith-based organizations in delivering social services. Dick Nathan and David Wright, two well-known scholars in this area, are leading that part of the project from their post at the Rockefeller Institute in Albany, New York. Chip and Bob are heads of, as I said, the Legal Tracking Project, which will bring to the public lots of great information about the constitutional issues that are so important to this overall matter.

Another piece of the project is held by Roger Conner and Jerry Kamens of the Search for Common Ground Project, a project that accomplished a good deal over the past year in bringing together different voices on the faith-based initiative, and produced a very important report on that topic over the past few months.

So, let me call on Chip now. Chip is a great analyst of these issues, and he will bring his comments on this particular case and the implications for other church-state issues.

IRA (CHIP) LUPU: Thank you very much, Melissa. Bob and I appreciate the plug for the Roundtable on Religion and Social Welfare.

It’s a privilege to be part of such a distinguished panel. You’ve been listening and you know that it’s 2-2 now on whether the voucher case was correctly decided yesterday, so I think Melissa’s given me the deciding vote, but I’m not going to cast it. I’m going to take a rather different perspective from what we’ve heard so far about the implications of the opinion. Right or wrong, it’s the law now, and there’s five votes for it, and there’s a solid majority, and everybody stayed with it, and Justice O’Connor didn’t leave the ranch, as a lot of people thought she might.

So, we have an opinion here that is guidance for the future. And the future of what? Not only school vouchers, but the more general question of the use of the voucher-financing mechanism for aid to faith-based organizations. Now, Elliot touched on this in his remarks, and I want to spend a little more time on it. The questions here are not only about faith-based schools — of course Zelman was about faith-based schools, as among the voucher recipients — but it’s also about the President’s faith-based initiative, the use of faith-based organizations and other community organizations to deliver social services: substance abuse treatment, child care, welfare-to-work programs.

This is part of what’s going on in the faith-based initiative, and the question of financing faith-based organizations is a central question. And the reason it is so squarely framed now, after yesterday’s decision, is that direct financing, contract or grants financing of faith-intensive services, not just services by faith organizations, but services which themselves have a strong faith component; for example, a 12-step alcohol or substance abuse program that’s heavily built on belief and faith in God. Those sorts of programs, under the current law, cannot be directly financed by the government. As the law has developed, both in the Supreme Court and in the lower court cases that have confronted this in the early stages of the faith-based initiative, there have been important rulings that the government may not directly finance faith-intensive social services.

So, why is Zelman so important to this particular movement? You can see that indirect funding, funding driven by beneficiary choice, is analyzed differently by the Supreme Court. If beneficiaries designate faith-based organizations rather than the government designating faith-based organizations by its grants or contracting practices, then faith-intensive services paid for through that voucher or certificate system become constitutionally acceptable. So, what is it that we learn from Zelman about the standards that will govern which vouchers programs are acceptable and which ones are not, whether it’s schools or other social services? The mantra in Zelman is “true, private choice,” or “genuine and independent choice.”

Now, why are we asking the question about true, private, genuine choice? One possibility is that we’re asking it to make sure the program isn’t a sham, that it’s not a secret way, a clever way, just to funnel money to religious organizations. That’s one possibility. There’s another more subtle possibility which does not get reflected much in yesterday’s opinions; that we’re asking the question because we’re concerned about the government manipulating, steering, encouraging or pushing people towards religion rather than simply towards the secular service in which the government is interested.

And it’s very interesting to see the way the various justices talked about true, private choice and how to measure it. There were many different angles on this, but among others, Justice O’Connor says, well, look, let’s just look at the market. Some parents sent their children to charter or community schools, some to magnet schools, some to voucher schools. People voted with their feet or with their children’s feet. Isn’t that enough to show true, private choice? In the eyes of the parents, these were decent options. Well, they may have been – I don’t know that this is true or not – but it may well have been that the best schools in Cleveland were the religious schools. And it may well have been that parents said, “Well, I don’t really want that religion, but I really want the best school in Cleveland I can get for my child, and this voucher program is pushing me in the direction of accepting religion along with the education I want for my child.”

This was not the way the court analyzed the problem yesterday. I think, for instance, one of the features of the program that I thought was a critical omission — Ms. French will disagree with this, I’m sure – is its lack of a religious opt-out provision for children who went to religious schools with a voucher. In the Milwaukee program, voucher children can say, okay, I’m going to a religious school but I don’t want the religion class, and they have to be given that option. That’s not true in Cleveland. So it was a package; it was religion plus the education. And that seemed to me to squeeze private choice in a way that the court did not recognize.

Let me say two more things about social services and vouchers and true private choice.

Other kinds of services, not education, will not look like education when the question of true, private choice comes up. There might be childcare programs, there might be substance abuse programs, there might be welfare-to-work programs. There will not be a thousand options. They will not be the wide government provision of places the way schools in Cleveland and other places will be. The constellation of options — public-private, the number of seats, how many are religious, how many are not — will be different depending on the service and the place. So the real question to me, after Zelman is whether true, private choice is a phony mantra or whether it’s a real mantra that will lead to development and thought in the lower courts and elsewhere about what it means to give people a true, fair, unsteered, decent choice between secular and religious alternatives. This is going to be a central question in the debate about the president’s faith-based initiative that will go forward.

Thank you.

(Applause.)

MS. ROGERS: Thank you very much. That’s a good way to conclude the remarks from the panelists up here. I want to thank everybody for their remarks, and now I want to make sure that we get to your questions and comments.

Q: I’m Mike McManus. I write a syndicated column called “Ethics and Religion.” Could someone, perhaps the attorney for the governor, tell us what the results have been? Are these kids doing any better compared to those in the public schools? I haven’t heard any numbers on that.

MS. FRENCH: I’ll let others elaborate, but I think the fair assessment in my direct Ohio way is to say that the results have been mixed. The best that you probably can say is that they are doing as least as well as the public school students, and some studies, both in Cleveland and in other areas, show that students are in fact doing better academically. We went beyond the academic studies and included in the record other kinds of surveys and other kinds of measures of success.

The history of the Cleveland program wasn’t just in terms of academic failure, it was also in terms of economic failure, of student discipline, of children not graduating. And if you look at a broader range of criteria for what is a measure of success, the students are doing quite well and the parents, in particular, love the program because of the other kinds of things that it requires: parental participation, that they do have to attend class, the parents do have to participate. And in terms of student discipline, that ranks very high for why the parents like the program so much.

MR. MINCBERG: One of the reports that Justice Souter mentioned — that is on our Web site– talks about the studies. And I give Ohio credit for this. Unlike Wisconsin, which ended the state evaluation of the voucher program when the state evaluator found that vouchers actually weren’t improving academic instruction, in Ohio they’ve at least continued that. And Lee Metcalf, who’s the person who has been doing the study, his latest conclusion is that there is no pattern of improvement that can be attributed to voucher program participation. There are some areas, as Judi has mentioned, where voucher students do better. There are actually some areas in Metcalf’s study where public school students do better in terms of academics. And this is despite the fact, I should add, that — as I said before – the state of Ohio continues to totally inadequately fund the public schools in Cleveland. Metcalf also found that voucher students in Ohio were disproportionately white, and that actually tracks an interesting new study released I think the day of the voucher decision from the Harvard Civil Rights Project that indicates that private, including religious schools, are much more segregated than public schools.

Q: I’m Rob Marus with Associated Baptist Press, and my question is for Ms. French and Mr. Chopko.

It regards the dissents, and particularly the language in Souter’s dissent, as well as, I think, Stevens’ dissent regarding the religious strife that may be created as voucher programs are expanded and different religious groups in our incredibly pluralistic society compete for different dollars. The sort of problems that our framers feared would be created eventually by direct government participation through the pockets of parents in giving money to private schools. Does that not give you pause?

And, also, as already has been touched on today by a couple of our panelists, some voucher programs are already creating regulation for the private schools in that they can’t discriminate in admissions or in hiring, and they can’t teach hate. Does that not give pause to anyone who is an advocate of private religious schools, that these schools may be unduly regulated, therefore violating their Free Exercise rights?

MS. FRENCH: I’ll take number one in terms of the potential divisiveness. I think Justice Breyer brought that out, as you said, the political strife. There is no question that there has been a very healthy debate within Ohio, but it has been in, as Elliot referred to, the school funding debate. It has been in that larger context of the school funding that’s appropriate for all public schools. This has been part of that debate. But I have not seen the debate go beyond what I would call healthy, or part of a public discourse relating, either in the General Assembly or relating to public schools, of just what is an appropriate use of the money in Ohio. There is the constitutional debate. I think that that’s healthy, it’s part of the democratic system, but we haven’t seen what some people I think have forewarned in terms of the real political strife that you might be concerned about.

MR. CHOPKO: I’ll make a brief comment on the first part and then deal with the second.

I think the premise of the first part is wrong. Schools are not competing for aid. The aid goes to parents and parents select schools, so the idea that you’re going to have some kind of intramural fighting among providers for a share in a program I think is wrong. The premise there would be right if this were some kind of a contracted program or there were only so many slots available and so many contractors could participate. But here the aid goes to parents and parents are making those decisions. So I think the premise of that assumption is wrong and has to be corrected.

The second part of this, I think, is that religious schools I think have lots of reasons why they may decide that they don’t want to participate in government programs. A colleague, the late Dean Kelley, used to say, you know, “With the government’s dollar comes the government.” Or we’ll use the king: “With the king’s coin comes the king.” And I always said that that’s not a reason why participation is unconstitutional, but it may give, and it should give, religious providers some reason to think seriously about whether they want to participate in it.

Here I think the religious schools choose whether they want to be part of this program to deliver this kind of service, whether they want to submit their curricula, their qualifications for teachers, the content of what happens in their educational programs. And I think that different schools are going to come at this different ways, as to whether they’re comfortable with that level of involvement by the government or not, and have to make that decision, I think, on an ongoing basis, year to year to year to year, whether they want to qualify for that participation or not. So if they’re uncomfortable with it, they shouldn’t participate.

MS. ROGERS: Let me just ask one question. Judi, is there a stated policy of the state of Ohio regarding the employment practices of the private, including religious, schools that participate in the voucher program?

MS. FRENCH: People have alluded to that. The religious schools are free to use their own employment policies. What we have required is in terms of admissions, and we have limited the guidelines and what’s in the statute to how they admit children, not in terms of how they employ teachers. There may be other Department of Education regulations that impact it in other ways, but that wasn’t made part of the case.

MS. ROGERS: Okay, so you cannot discriminate on religion on that basis, but in the employment of teachers, that’s permissible from the state of Ohio’s point of view.

MS. FRENCH: Well, I guess I should clarify that I do not have a background in those kinds of educational requirements. Others on the panel may know the answer to that question. What I’m suggesting is the voucher program itself does not limit any of the employment aspects and only regulates the admission of students, so that would have to come from some other way.

Q: I’m Christine Hall from CNSNews.com. I was interested in Mr. Lupu’s first comment — the way I’ve kind of translated it to myself is choice in the marketplace for schools. Right now the choice seems to be parochial schools. That doesn’t necessarily dictate what it will be five, 10 years from now and so forth. I guess what you’re kind of arguing is that we should be limited by what the current choices in the marketplace are?

MR. LUPU: Yes — yes and no, and I mean more no than yes, okay? And let me try to explain. The choices in the marketplace are relevant in some circumstances. Let’s say that it’s a drug abuse program and there are vouchers to use it, and there are only three in town and they’re all heavily faith-based, and that’s your option. Well, that seems to me quite a troublesome situation: it’s faith-based system or nothing.

If we’re talking about schools we know we start out in a situation in which the market is heavily titled towards sectarian schools, because that’s who’s been delivering education in the cities. And so, my view is that the government should be sensitive to the fact that the market basket has choices that may be skewed towards faith. Maybe the best schools are also the most heavily faith-based schools, and the government should be doing things to try to empower the parents not only to choose schools, but to choose how much faith from the schools they get, which is why I emphasize the opt-out possibility, that a parent could send a child to a faith-based school but not have to take the faith part of the educational program.

MS. ROGERS: Judi, can I ask you about that, the opt-out provision?

MS. FRENCH: I can respond to that. It’s absolutely correct, there is not an opt-out provision the way that there is in Milwaukee. The way that we respond to that concern within the case was to say this is an opt-in program; the entire program is an opt-in program that parents are free to take or not take, and that it was left to each individual school to have its own policies as to whether they were allowed to opt out. And the different schools, as you might imagine, had very different policies, some requiring that you had to participate in all of the classes, but certainly the vast majority of them saying that they had variations on how parents could accept or not accept certain teachings. When parents were choosing what particular school they wanted to go, the schools were open about their requirements, but that was left open for the parents.

MR. LUPU: The entry into provider markets is very different depending on what the service is. It is very expensive and difficult to start a new school – a building, a library, all that you need. Starting a childcare center is much less expensive, which is why childcare vouchers have produced markets — secular, religious, all sorts of providers — very quickly and efficiently.

Q: I have a quick second question, if that’s all right, for the People for the American Way. As I recall, wasn’t it the NEA and the American Federation of Teachers who argued this case with the Supreme Court? And the interesting point I thought about that was that you don’t normally think of them as being big Establishment Clause organizations. They obviously have a whole different set of interests in this. I’d like to hear your explanation of why they were the ones to argue this case and not your organization or someone else you might normally think of.

MR. MINCBERG: Many people have asked that. (Laughter.) No, I’m just kidding.

MS. ROGERS: Elliot’s been wondering that himself.

MR. MINCBERG: That fact is that there were two cases that were brought. One was brought by a large number of organizations, including the NEA, People for the American Way Foundation, the ACLU, others. A second court case was brought by the American Federation of Teachers. The two cases were brought together, and basically the two lawyers that argued the case in the Supreme Court were the two most senior lawyers that were involved in the case. I’d like to think if I had been more senior maybe I would have been able to argue it. Bob Chanin, who is the general counsel for the NEA, has been counsel in a number of Supreme Court cases over the years, and, the unfortunately now-late Judge Marvin Frankel as well.

Both of those organizations, at least from my working with them, really have shown a genuine concern and commitment about the Establishment Clause issues, as well as some of the policy issues that will be talked about soon about how the choice here really belongs to the schools, not to the kids; it doesn’t really help poor kids, it really helps kids who are already in private schools, et cetera, et cetera.

Q: I’m Ken Jost. I write the Supreme Court Yearbook for CQ Press. I wanted to ask whether the two background facts, the educational crisis in Cleveland and the limitation of the aid based on financial need, are constitutional prerequisites under the ruling, or is the school system free to adopt a voucher program even if it’s not in crisis and even if the aid is not limited to those in need?

MR. MINCBERG: One thing is that, in fact, as I think Judi would agree, the program is not limited based on financial need. There is a preference given in the program to people under the poverty level, but in fact, there are many people – one estimate was as many 40 percent in ’99-2000 — that are not in need that are in the voucher program. So that seems to pretty clearly indicate that that isn’t a constitutional requirement since that, in fact, was not the case in Cleveland.

I also frankly did not see anything in the Court’s decision that suggested that the background facts of the educational crisis in Cleveland was a prerequisite. It certainly was useful in arguing that the intent of the program, according to the record in the case, was not to promote religion but instead it was to address this issue. But, under the secular purpose prong, as long as a state or school district could come up with a secular reason, they would be entitled to try to get such a program adopted if it can pass the hurdles of the state legislature and the state courts.

MR. MILLER: Apart from the emotional pull of those particular factors, I think the only constitutional significance they had would help explain that the program was set down based on neutral criteria. The fact that it went to a poorer segment of society was a fine line to draw because it was neutral towards religion, and I suppose the financial crisis helped explain that a background of it wasn’t an attempt to go out and support religion, but rather to fix education. So I don’t think there is anything distinctive about those other than that they are neutral.

Q: Hi, my name’s Matt Young. I’m a reporter with Religion News Service. This question is for Mr. Mincberg.

Mr. Mincberg, you said that there are states that bar government money from going to religious schools. I was wondering how many states were you talking about, and will the Zelman decision likely affect their policies?

MR. MINCBERG: Well, what I’m referring to are state constitutional provisions. They generally are not specific with respect to schools, but usually the way they read is something along the lines of, no government money can go directly or indirectly — interestingly enough — to support religious institutions. Usually that’s the language that they have, and I think it is a majority of the states, but I don’t have the exact numbers, someone else may. I know that Florida has such a provision, Michigan -

MS. ROGERS: We’ve got Mark Chopko with a helpful chart here.

MR. CHOPKO: There actually was a chart that was published in the Education Law Report that classified states this way; that there were 17 state constitutions, according to the author of this article – it escapes me right now — that were restrictive, either through constitutional language, case law or attorney general opinions; 16 that were permissive; and 17 that they were uncertain, based on there was no case developed or that the case law was ambiguous. So the states basically fall out a third, a third, a third.

MR. MINCBERG: On the second part of that question, I don’t think the Zelman decision has an effect, one way or the other, on those state constitutional provisions, because it’s often been said that the federal Constitution is a floor not a ceiling in terms of rights, so that a state is free, as long as it is consistent with the federal Constitution, to provide for more protections.

Now, there are some people who already have argued that those state constitutional provisions are not proper. Those arguments so far have met with zero success. For example, the Maine and Vermont Supreme Courts recently ruled that religious schools could not be included in a voucher-type program in rural areas in those states. The folks who lost those cases tried to take them to the Supreme Court; the Supreme Court turned them down.

MS. ROGERS: Because we’re getting close to the end, let me go ahead and collect a few questions if I can. And then we’ll let everybody make a final remark. So please go ahead, and take notes, panelists.

Q: I’m Candace Crandall with the PBS television show “Think Tank,” and I have a question for Judith French. It seems to me that much of this ruling, as it’s been presented here by this panel, seems to be a struggle between large entities over who gets the money. And something very important has been left out here, and that’s the role of parents and the concern of parents for their children. I’ve heard that under the voucher system parents, or taxpayers, rather, will be compelled — and that was the word used — to support religious schools, religions that they don’t agree with; that individuals will be pushed toward accepting religions that are not their own or that they don’t want to accept.

But under the public school system, it seems to me that taxpayers are currently compelled to support failed schools, often dangerous schools and sometimes even when they have their own children in private schools, which they are paying additional money for, they are also in the position of being pushed toward, in the public schools, accepting cultural and political ideologies, often presented at the point of being religious views, whether they like them or not. Is there anybody in all of this debate defending the role, desire and rights of parents to see that their children are getting the best possible education and in the best possible educational atmosphere?

Q: My name is Tasha Tillman, and my question is very similar to hers. I’ve heard the opponents here argue solely about supporting religion and religious programs, but not once have I heard any discussion about removing and eliminating the achievement gap that is so obvious between blacks and minorities and the advantaged children. So where is the discussion in all of that and why are we missing that?

Q: James Standish, Seventh-Adventist Church. I had a comment and a question. First of all, the study that was referenced regarding the diversity of private schools, I just wanted to point out that that study may be quite misleading when applied to Catholic and Adventist schools. There is obviously a very big difference between those kinds of school systems that aim to provide education at a fairly egalitarian level versus elitist institutions like prep schools in New England and so forth. Putting them all together might be somewhat misleading.

My question is that parochial schools aim to produce a first-rate education, but also to indoctrinate children. My question is, is there any evidence that students attending parochial schools on vouchers are more likely to change their faith as a result of this indoctrination?

Q: My name’s Kenny Byrd, and my question is just to follow up on the religious strife issue. Just a hypothetical to make it more real. What if, say, Jerry Vines from the Southern Baptists had a Baptist school and they taught about Islam, which, he said, was started by a pedophile, like he said the other day, or made anti-gay statements, and then people complained about that because tax dollars are going to those schools? How could that situation not lead to the strife that we are concerned about? How could that be avoided? It seems like then the Baptists would have to go to the legislators and say, please don’t de-fund us. Couldn’t that lead to the type of religious strife?

Q: Hi, my name is Marc Sorel. I’m from the American Jewish Committee. And my question deals with the issues of government funding and the issues that we brought up recently.

Basically, the way I see it is that there are two problems here, and the first one deals with the government funding that goes to parents. Mr. Chopko, you pointed out that the issue of fighting over parents is different from government funding directly, but what my position would be is that ultimately when these parents get government funds in their pocket, they’re working with someone else’s tax dollars. So regardless of whether it’s the government directly dealing with these organizations or the parents, these are still tax dollars from someone else’s pocket that are being put forward to these organizations.

The second part of my question deals with Ms. French. You talked about how you argued this case from the basic standpoint of Ohio, and specifically the Cleveland district, where these parochial schools are not allowed to discriminate in terms of their admission policies but they can discriminate in terms of who they hire. And my question to you is that if these vouchers are going to those schools, inevitably some of that money is going to go to fund the salaries for these teachers, and they’re discriminated against based on their religious beliefs or some other aspect of their employ. So, my question there is, once again, how do you say that this government funding is not directly going to some kind of religious ideology?

MS. ROGERS: Okay, I’m going to go in reverse order than we started, so I’m going to start with Chip, and – this is not very fair – there’s a lot of questions and a lot to say, but if you can, just very quickly, react to the questions that were directed to you or any last comments.

MR. LUPU: There were too many questions and not nearly enough time, but let me just try to capsulize one piece of what came out of several of the questions: parents’ rights, compulsory education, strife and resources.

Yes, of course, parents’ rights, compulsory education, strife and fights over resources, this is not new; this has been American education ever since we’ve expected everyone to be schooled. This has been going for more than 100 years. Everyone has to go to school. The governments provide schools. People get taxed for those schools. We recognize parents’ rights to send their children to other schools, private, but of course some people can afford it and some people can’t.

And then there is fights about who gets to afford it and whether the government should subsidize it, and people are being taxed for public schools or private schools where teachers or principals are saying things that they hate. They may be pro-Muslim or anti-Muslim or pro-America or anti-America, but someone will hate things that are being said in schools that are financed by the government, and that will never end. So there’s a question of how you arrange the options, but the overall toxic brew this presents will never end.

MS. ROGERS: And on that happy note – (laughter, applause) – we will go to Nick.

MR. MILLER: Well, I’m very sympathetic to the point that parents need a choice and that the public school system frequently is not neutral towards religious views, and that there is an ideology that sometimes contradicts with basic moral assumptions that many Americans hold. But it’s just my concern with how we deal with that problem that drives me here.

To move on to the religious strife question, I think that we set up our system, as we did in separating church and state, as best we could because of our historical experiences in Europe where people have wars over these kinds of questions. You don’t have to go back 200 or 300 years to find those wars; you just have to go overseas now.

Why, in Eastern Europe and in the Middle East and in Northern Ireland, do we have unresolvable conflicts? They’re largely political, but if you look at each side, you’ll find religious groups on either side. You can’t compromise on matters of religion because they’re matters of faith. That’s not a bad thing. I believe that. That’s the way religion should be. But that’s why you don’t want to create fractures in society, political fractures that divide along religious lines, because then there you lose your ability to compromise effectively, which is the art of politics. And that’s why I think the solution to the secularism in public schools has to be solved in another way.

MS. ROGERS: Mark Chopko.

MR. CHOPKO: I think that Nick ended his original comments by saying that maybe he was wrong, and he hopes that he’s wrong. I think you are wrong. (Laughter.) I think that one of the things that vouchers do, by benefiting a class of parents, regardless of who they are, is in fact it works against majoritarianism, it works against strife by putting the votes, the decisions, the power in the hands of individual parents to make what they think are the best choices they have for their children. We have stood for, we will stand for, and we will always stand for the rights of parents to participate in the education of their children. We don’t come at this as a community that is trying to infuse Catholic schools but as a community that educates two-thirds to 80 percent of our students in public schools. So we stand for education and for parents, and that’s where we have stood, that’s where we will stand. And we support what’s going on in Cleveland because we see that as validating our experience in this country.

MS. ROGERS: Elliot and Judi.

MR. MINCBERG: I think the role of parents in education is absolutely critical, but anyone who thinks that vouchers truly serve parents and truly provide choice to parents is reading a lot of right-wing propaganda and not looking at reality. Because the fact of the matter is that the facts show – and please look at the facts and don’t just repeat the slogans that you hear – that voucher programs have not improved parental choice in a meaningful way because the choice goes to schools, not parents.

In Milwaukee, as many as 40 percent of the kids in the voucher program in one year are gone the next year because the private schools can do that. Kids are not like toothpaste. Private schools don’t market and don’t care who buys their services. They want to and they have the right to, with their own funds, select the kids that participate. They can exclude special education kids with private funds and all the rest. But if we’re talking about government funding, then you have a very different situation.

And the question about the achievement gap is critical in that respect because, as we’ve seen, vouchers don’t really deal with solving the achievement gap. What does deal with solving the achievement gap is in fact providing adequate funding for public schools, and choice within the public school setting so that in fact you can provide meaningful choice in a way that is consistent with the values of our public school system.

Are public schools sometimes wrong in what they do? Public schools are not perfect, no question about that. They need a lot of improvement. But they must be neutral in our society with respect to religion and many other objectives. We fund a lot of things in our society publicly. The bus system is publicly funded, but you don’t get a voucher for taxi cabs if you don’t like the bus system. What instead you can do is work on improving that bus system and make it work in the most effective way. Most of that will be talked about more specifically in the second panel, but I wanted to respond to that because of the questions that were raised about it.

The issue about religious strife I think is also a very important one as well. I think it will be inevitable – and frankly, in some ways, the international situation we’re in now may increase it even further, that people will contend that schools of one particular religion teach hatred of some other religion. Indeed, as Justice Souter points out, it is the prerogative of religion to teach that its religion is the one superior religion and everybody else is inferior. But the real question is, should taxpayer money, government money go to promote those kinds of religious doctrines?

MS. ROGERS: Judi.

MS. FRENCH: I see my rebuttal flashing before my eyes. As I said to the Court with their questions, your questions reflect the challenge that was before the Ohio General Assembly. How do you balance all of these views? How do you take into consideration how to fund all of these different programs with a limited amount of resources?

We start from the presumption that the current system is constitutional. So the current system that offers the public schools, despite their faults and despite the ongoing litigation, is, in fact, constitutional. So we did not argue that this was a right for a child to have this voucher system because the Ohio program was inadequate.

You also have to balance the views, and when you’re thinking about political strife, how do you do that? We did it in two ways. The Ohio General Assembly did it in two ways. You require the schools not to teach hate, and you require them not to discriminate based on admissions. There may in fact be particular instances, whether they relate to Cleveland or other similar voucher programs, where schools are not abiding by those principles, and we’d have to address that. But that was certainly not the evidence before the court.

The final thing is, I think also in terms of the strife and the other considerations that came up, is that you have to balance the Establishment Clause concerns with the Free Exercise concerns. How do you place limited or fundamental requirements on the schools to say, these are the things that you’re required to teach? We’re not going to get into the details of how you teach those things, but we want fundamental requirements — you have to teach math, you have to teach science — and in some ways we enforce that.

The students have to pass proficiency exams at some point, and also to give these schools very limited oversight so that we don’t get into the problem of deciding how they’re going to educate the children and thereby perhaps encroaching on some free exercise concerns, again, it’s an experiment. We’re going to see how it goes. So far the results have been mixed, but we’re optimistic about where it can go from here.

MS. ROGERS: Thank you so much.

Thanks to all our distinguished panelists and audience members. We’re going to take now the briefest of breaks, so get up, stretch your legs, and we’ll get started again in a moment.

Thank you very much.

(Applause.)

(END OF PANEL ONE.)

 

PANEL TWO TRANSCRIPT

E. J. DIONNE: I think I’m going to begin while everybody takes their seats; we don’t have too much time. And I suspect that this is the part of the panel where lots of people are going to want to jump into the conversation, and perhaps jump on each other. So, if everybody could please move into your seats. Thank you. I appreciate it very much.

It is said in polite society that the two subjects you’re not supposed to talk about are religion and politics, and at the Pew Forum on Religion and Public Life, that’s pretty much all we do; our concerns are really at the crossroads of religion, politics, public policy, and public life. And Melissa is always the person who comes up here and thanks everybody else. Melissa has really built this organization, and I think that Melissa proves that you can have strong views and strong commitments and also be absolutely fair, civil, and profoundly committed to open, lively, and thoughtful discourse on very difficult public questions.

She has worked harder than anyone I know to turn the Forum into a place where everyone feels comfortable and knows they can have a good argument without having their heads taken off. And she has done so much work; this organization wouldn’t exist without her. It’s an honor to be her friend and her colleague. Thank you so, so much, Melissa, for the work that you do.

Now that the lawyers have told us what we can and can’t do, as Melissa said, we have to decide what we should do with this decision. And I guess at the heart of it is the question, will vouchers spread? If they do spread, will their spread enhance equal educational opportunities and place pressure on public schools to improve, or will their spread deprive public schools of funds vital to their improvement and reform? I think those are among the questions we’re going to be dealing with here.

There are also the lawyers, who have some fascinating questions on the table — Mark Chopko’s point about the Catholic Church’s commitment to helping people at or below the poverty line. Will there now be pressure to universalize vouchers? Will this pull out the parents of affluent children and their tax dollars from the public schools? There is also Chip’s point on the supply question; it’s easier, he said, to start a childcare center than a school.

In the decisions themselves, when the justices ventured into public policy, they too put some important issues on the table. Justice Thomas sounded somewhat like Tasha Tillman, whose question earlier, I think, is going to be dealt with here, when he said, “At the time of Reconstruction, blacks considered public education a matter of personal liberation and a necessary function of a free society. Today, however, the promise of public school education has failed poor inner city blacks. Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs, because they provide the greatest educational opportunities for their children in struggling communities.”

That is on the one side. I think Justice Breyer puts some very interesting policy questions on the table when he asks the following, “How are state officials to adjudicate claims that one religion or another is advocating, for example, civil disobedience in response to unjust laws, the use of illegal drugs in religious ceremony, or resort to force to call attention to what it views as an immoral social practice? How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest, say, the conflict in the Middle East or the war on terrorism?” Those are also among the questions put on the table here.

And lastly, I thought Justice Souter making the point about the $2,500 voucher and what it meant, and whether it directed people to certain kinds of schools, I think people on both sides of this controversy wonder whether the size of the vouchers that we are talking about will actually be sufficient to achieve the results that voucher advocates would like. And so, these are among the questions that we are going to put on the table.

As I said earlier, Melissa is very conscious of fairness. We spend a lot of our time figuring out who should sit on a panel and how to represent all the diverse views on these issues, because often, we’re not just talking about two or three sides of a question. Melissa and I usually come up with an excellent list of 20 and then decide that we can’t rent out the baseball stadium for our panel, so we have to cut it down. And we have an excellent group of people here today.

I will introduce them in alphabetical order and make note that the Roman Catholic Church is very smart, because it tends to hire good people whose names begin with letters at the beginning of the alphabet. Father William F. Davis is deputy secretary for Catholic Schools and Public Policy at the U.S. Conference of Catholic Bishops. He holds degrees from Catholic University and Villanova. Previously, he served as the interim secretary for education for the United States Conference of Catholic Bishops.

The Reverend Davis has worked as a secondary school teacher, principal, and superintendent of schools for the diocese of Arlington, Virginia. He has also served as the president of the Virginia Council for Private Education, and he is a member of the Oblates of St. Francis de Sales, and you should know that St. Francis de Sales is the patron saint of writers, and I often turn to him for editing advice. Father Davis, thank you very much.

FATHER WILLIAM F. DAVIS: If I had known I was going to be first because of the alphabet, I would have probably changed my name. I’d just like to say something about the decision, and basically, to refer to the statement that we issued yesterday, when the decision came down. And that basically said that we considered that this was a significant victory for parents, especially for parents with low income and little resources, and that it reinforces the basic right of parents to choose the schools that they best believe serve the needs of their children.

And it supports, I think, the responsibility of the government to assist people to attain that education and to fulfill that responsibility. We also said that we don’t think that the decision, in any way, threatens the public schools of the country, or their ability to provide a quality education to the millions of parents, including millions of Catholic parents who decide that they want to send their children to public schools, including, if they were still alive, and I was a young person again, my parents, who chose to send me to public elementary and public high school.

And finally, we said that now that the constitutional question about this voucher program is settled, we would encourage state legislators and members of the federal Congress to look at the options that ought to be available to parents to obtain a quality education for their children. That basically is our position on this case; it basically is our position on the public policy issue of supporting the parents’ right to choose the school where they want to send their children.

And a number of years ago, we issued a set of guidelines on federal parental choice options, and that basically said that all parents should have the option and should have the ability to choose the school that they want to send their children to. The essential element, then, of that ability to do that, is that it should go to all parents, and that if preferences have to be given, the preference should be given to the low- and middle-income parents who are unable to make that choice, and that such programs have to respect the integrity of the private school community.

We do not have to have a program that requires private schools to change who they are, or what they believe, or what they do. They ought to be able to function that way. No single model of schools answers all of the questions or all of the needs that parents have in providing a quality education to their children. There is no one model. So, to have a cookie-cutter approach to this and say that everybody ought to go to this school, the Supreme Court settled that question 75 or 80 years ago, when they said that children were not the creatures of the state, and you couldn’t require them to go to public schools.

We also said in that set of guidelines that we ought to put new money into the program. It shouldn’t be a program that would take money away from somebody; it ought to be additional funding that would allow parents to make that choice. The Catholic bishops have spoken, over the years, on a number of educational issues, not just on Catholic schools, but on the issues that affect public schools as well. Because of the numbers of children, our children, the numbers of members of our faith who teach in those schools, we think that public schools ought to be providing a quality education just as well as private schools, and we will work to do everything we can to bring those issues before the state legislatures and the federal Congress and try to resolve those questions.

Having said that, I think, personally, that the decision was a great one, and I’m happy to be here with Virginia Walden-Ford this morning, because we’ve worked together, over a period of time, to try to bring about choices in the District of Columbia. And I want to say that I’m delighted that you’re here, and I’m delighted that we can celebrate this victory today. I also want to thank Judith French for arguing, excellently, before the court, in the oral arguments in February. But we need to address a wide range of public policy issues if we’re going to deal with this issue of school choice.

Are private schools accountable? Absolutely. Should they be accountable? Absolutely. Do we need to look at how we operate? Maybe. I think the Catholic Church has provided, over the centuries in this country’s existence, an excellent example of how to run good, quality schools. We share that information with people. Should we be allowed to hire Catholics as a preference? I don’t consider that discrimination. I consider that saying we want to keep our schools doing what they are supposed to be doing.

Do we hire non-Catholics? Absolutely; we have them in many of our schools. What we ask those teachers is, will you be able to teach quality education according to the philosophy of our Catholic school system? And if they say yes, we hire them. That’s not a problem there. Do we test our children? Yes. To say that we’re not accountable is ridiculous. We’re accountable to parents every day. We’re accountable to people, and if they don’t like what we’re giving them, they can leave us.

Should we have the option to participate in voucher programs? Absolutely. Should we have the option not to? Yes. The paper that I provided for this meeting, which is on the table outside, ended with a paragraph that I’d like to read to you. “Finally, not every parental choice proposal is a good one. The devil is in the details, and we reserve the right to review each federal, state, and local proposal in order to determine if each proposal is acceptable and appropriate.”

“Problems can arise in a number of critical areas, and decisions on whether to support a proposal or not may vary from place to place. We have supported voucher programs in the federal Congress; the Catholic Conference does not normally take positions on state initiatives, but state conferences do. And in some cases, they have not supported voucher proposals because they didn’t feel that they were satisfactory or were going to be successful.”

So, that basically is the public policy position of the Catholic Bishops of the United States. We’re happy with the decision. We think that it’s possible that this option for parents will expand our key focus and all of our educational endeavors in children, and we will continue to do that and seek quality education in public, private, and religious schools for all of the children of this country. Thank you.

MR. DIONNE: Thank you, Father Davis. And I’m hoping we can sharpen that point that he made, because I think it’s a critical point. It’s not just whether vouchers exist or not, but what kind of programs work and what kind don’t, and I hope we can enter into that. I also noticed there are a couple of children who are in this audience; I see a little girl over here. They are what this is about, and I just want to thank them for being so good. God bless you all. (Laughter.)

I am happy to introduce Marc Egan, who is the director of the National School Board Association’s Voucher Strategy Center, which was established in September of 2000. Before joining the School Board Association, Mr. Egan served as an account manager at the Widmeyer-Baker Group, a communications-public relations company. He also worked as a lobbyist at the Alabama Association of School Boards, and as a journalist at the Montgomery Advertiser in Alabama. Imagine, two very popular things to be: a lobbyist and a journalist.

There is no conspiracy here, but he too holds a degree from Villanova University. It’s very good to have you with us, Marc.

MARC EGAN: Thank you very much. I want to thank Melissa Rogers, E.J. Dionne, and the Pew Forum for inviting me to be a part of this discussion today. Villanova definitely is very well represented here. And I want to thank also my fellow panelists, and the previous panel as well, for sharing their insights. I hope that this is the first of many debates and discussions about this issue, because I think it needs to be talked about at length.

And so, now it goes to the court of public opinion. The Supreme Court has spoken on vouchers in the Establishment Clause, but we believe that the debate over school vouchers is more about the role and the future of public education in America than it is about the Establishment Clause. The court decision merely shifted the debate from the courtroom back to the living rooms and statehouses of this country.

There’s one number that I want to emphasize this morning: 47. Forty-seven years ago, Milton Friedman first floated the idea of school vouchers, and in the half century since then, American voters have rejected that idea every time it’s been put before them. Almost 75 percent of the nation’s state legislatures have rejected the concept. The United States Senate and House of Representatives have rejected vouchers multiple times, most recently, just last year.

And in the few locations where tax-funded vouchers have been tried, credible research on its academic merits has come back largely inconclusive, as Ms. French admitted this morning. It’s not exactly a stellar resume. Forty-seven; 47 million children. That’s how many students attend our nation’s public schools. It’s roughly nine out of every 10 students in this country.

Now, with 90 percent of this country’s students going to public schools, we believe that any serious policy measure aimed at improving the education of America’s students must start with the public schools, or at the very least, consider the impact on them. Think about it; even if 10 percent of the public school students in this country used a voucher and transferred to a private school — and there is no capacity for that kind of shift — 80 percent of the nation’s children still would attend public schools.

The public understands this, and vouchers have routinely lost in the court of public opinion because they ignore the needs of the overwhelming majority of children in this country. The public rejects vouchers because they do not want to take critical dollars away from their public schools, which vouchers do. They reject vouchers because they understand that, unlike public schools, private schools do not have to admit and educate all children, particularly those with disabilities.

We know from the official evaluation of the Milwaukee program that even many of the students who actually do manage to gain entry into a private school may not be there for long. With an annual attrition rate of 33 percent, many students are simply shown the door. And we know that the Cleveland voucher program overwhelmingly leaves behind children with disabilities. Indeed, special education students, and I quote, “were actively counseled out of the program,” said one state education official.

The public also rejects vouchers because although voucher money is taxpayer money, voucher schools provide no accountability to the taxpayers. Instead, they take a u-turn on the public road, they take a u-turn on the road to public accountability for public dollars and education. Voucher programs practically hand over tax money with no questions asked, which is why we’ve seen voucher schools in Milwaukee go bankrupt and close down in the middle of a school year, with school principals and founders convicted of fraud and embezzlement.

It’s why a Cleveland voucher school was able to collect almost $300,000 from Ohio taxpayers, despite operating in a 110-year-old school building that had lead paint flaking from the walls, no fire alarms, and virtually no heat in the winter. Two-thirds of this school’s teachers were un-licensed, including one who had a murder conviction for a barroom shooting, a conviction that the school’s principal knew all about.

When several teachers began leaving this school, the mother of one child said, “Students were simply left to teach themselves.” She ultimately returned her son to the public school, where he had to repeat the first grade. Now, with the 30th anniversary of Watergate recently in the news, let’s recall the famous phrase, “follow the money.” Except in the case of a voucher school in the state of Florida, you would have to follow it all over the Sunshine State.

The state sends taxpayer dollars, for one school, to five different addresses, including the school owner’s home, a motel, and an empty church hall, in search of what must be the nation’s first traveling voucher school. Instead of monitoring tax-funded voucher schools, the state has admitted that it does not ask for any accounting of how the money is spent. That policy would help explain why the state government sent millions of taxpayer dollars to a management company that operates a half dozen voucher schools in Florida, despite numerous complaints from parents, teachers, and even the pastor of the church that houses one of the schools.

When the Reverend questioned why the students had no textbooks, why they were not receiving the special education services to which they were entitled, he was fired as dean of the school. He also wondered where all the tax money had gone when the teachers of the school were paid as little as $10.50 an hour, which may also explain why some students have had as many as seven different teachers in just seven months.

I raise these examples because there are some in the voucher movement who believe that we should turn education into a marketplace, and that the laws of the market will dictate which schools succeed and which schools fail. As too many examples, however, from Cleveland, Milwaukee, and Florida show us, we should not play the Enron and WorldCom games with the educational futures of our nation’s students.

Yesterday’s court ruling does not eliminate any of the flaws that have proven so fatal to the voucher movement. When it comes to public dollars for education, the priority should be public schools. The priority should be ensuring that all public schools are quality places of learning for all children. No child deserves less.

The court of public opinion matters too, and the public’s verdict time and again has been this: they want strong public schools for all students; they do not want tax-funded vouchers for a chosen few. Thank you very much.

MR. DIONNE: If you want to know how passionate this argument will get, just consider Watergate, Enron, WorldCom, and traveling circuses. We have a lot going on up here.

The Reverend Timothy McDonald the Third is the president of the African-American Ministers Leadership Council. He’s president of Concerned Black Clergy and pastor of the First Iconium Baptist Church in Atlanta. He received his BA from Barry College, Georgia, his M.D. from Emory University. He has taught and lectured at colleges and universities in Atlanta and around the country. He has served as full time assistant pastor at the historical Ebenezer Baptist Church in Atlanta and as national director of Operation Breadbasket.

And I’m grateful to him because he has appeared as a special guest on both Oprah Winfrey and Sally Jesse Raphael. And unfortunately for me, this is the closest I’ll ever get to being on Oprah Winfrey. So, thank you very, very much for joining us.

REV. TIM MCDONALD: Thank you so much, and to the Pew Forum, thank you. I’m a Baptist preacher, not Southern Baptist, though I live in the South. This is a very passionate issue for me. I’m a product of public education, and I am one who, by my very life, I hope, is a seeker of truth, and I don’t like it when a lot of falsehoods, lies, and propaganda are being perpetuated upon the American people, but most especially, upon my people.

Given who I am, as an African-American who lives in the South, I’m a born conspirator. I don’t believe nothing nobody tells me. I don’t believe what I see on TV; I don’t believe what I read; I take everything and I question. I want to know why. And I think we should take a serious look at what happened yesterday, if we take a deep breath and we start asking the question why. Why was the Cleveland voucher even established? Who is behind it? Why were they behind it?

When I’ve done my little cursory analysis, it takes me all the way back to 1954. In 1954, when the Brown decision came down, particularly in the South and in certain parts of the East, along the Northeast, there were whites who did not want their children going to school with black kids, and so they pulled their kids out of public schools, and they set up church schools. I called them segregation academies.

And for several years, these academies were doing just fine. After a couple of decades, the buildings started getting a little old, run down, and raggedy. Public schools were doing pretty well during that era, but these academies got to a point where they decided they wanted their tax money back. You heard it was 47 years ago, but it really started in ’54. They wanted the same benefits in their segregated academies that they had been experiencing in public education. And so, the voucher agenda started.

It’s not a new phenomena, like many of us believe, that just started an hour ago — it’s been going on, and there have been meetings after meetings, and think tanks after think tanks, and legislation after legislation, trying to get their hands back on public dollars. And they had a difficult time doing it because of religion. Anybody who thinks that this issue is really about children is being naïve, in my humble opinion. This issue is really, always has been, is now, and will be tomorrow, about money.

It is about money. It’s not about parental choice. Those are camouflaged slogans that we put up there. In fact, in the Cleveland program, it was called a scholarship, not even called a voucher. They tried all kinds of different words to get the public opinion on their side for 50 years, and now they’ve finally got themselves a Supreme Court that would agree with them. They finally got themselves a Clarence Thomas who, in his humble opinion, even used the name of Frederick Douglas, and used the Brown decision to validate what most black folks, through their very vote, have already said they are adamantly opposed to.

All you’ve got to do is look at the 2000 elections, where there were referendums on the ballot, and in the state, not just city, but in the state of Michigan and in the state of California, they were overwhelmingly defeated, and even more so, overwhelmingly defeated by African-Americans. We hear a lot of talk about parochial schools and the Catholic Church. I love the Catholic Church; they do good stuff. But their schools are in trouble, and have been for a long time. And the right wing knew that they needed an ally; they knew that they needed somebody to come in who had some muscle.

And they even devised a strategy — they made it public. We’re going after the Catholic Church; we need allies. I come from Atlanta, Georgia. Two Catholic schools have closed in the last three years. Why? Because of parental choice? No. Because they have bad students? No. They closed for one reason: money. And if I were a parent, had my child in the school, and you offered me $2,000, you think I’m going to be a fool and not take it? I’m going to take it. That is what has happened, but we’re taking it at the expense — I don’t care how you slice it, dice it, stir it or fry it — at the expense of our children in public schools. And that, my brothers, ladies and gentlemen, is absolutely wrong.

And so, now the fight goes to the school of public opinion, and I’m glad it’s going to be there because I love a good fight. I love a good fight. And wherever we have had the opportunity to address the public about vouchers, vouchers have overwhelmingly been defeated. For those of us who think that we are in charge and our opinions really matter, you need to know that there are folks who are pulling strings you don’t even know about, that there are folks who are writing legislation that’s going to be dropped.

And every general assembly in the United States, they were just licking their chops yesterday — legislation that’s been drawn up not just last year, not even just five years ago, but legislation that they have been drawing up for decades, that I guarantee you, on my mamma’s grave, is going to be dropped all over this nation, because now they see, show me the money, at the expense of our children.

And I tell you, you can mess with me, and I took a lot during the civil rights movement, but don’t you mess with my child; don’t you mess with my child’s future. I believe like Gandhi said. Gandhi was asked a question one time, “Mr. Gandhi, what do you think about Western Civilization?” He says, “I think it’s a great idea. They should try it.”

I believe, when we ask the question, what do you think about parental choice, I think it’s a great idea. We ought to try it, but it is not being tried in Cleveland. That is not parental choice. Parental choice is when I have total freedom to choose and decide where my child will go to school. Parental choice is not because I am disabled, or not because I’m black, or not because I didn’t come from the right side of town. If I could send some of these schools some of the kids that I know, they would not open their doors.

You think that these schools are going to just open their doors to these inner city black kids? How are they going to get there? How are they going to pay for the uniforms? How are they going to participate in extracurricular activities? The ones who are really benefiting are the ones who are already down there, whom we are now subsidizing. That’s what’s happening in Cleveland. We are subsidizing private education at the expense of our children, 90 percent of whom are in our public schools.

And so, I would hope and pray that as we move forward, that we would do what is in the best interest of our children; not the religious right, not the right wing, not the Supreme Court, not some other gender, but our children — not even the parents, but the children, because that’s where it really counts. The clearest undermining of our democracy is the mis-education of our children. The clearest undermining of our democracy and our democratic principles is the mis-education of our children.

We’ve got a lot of work to do in public education, no question about it. But anybody who believes that vouchers are the answer is, I think barking up the wrong tree.

MR. DIONNE: Thank you. Asking a Baptist preacher to speak for five or seven minutes is like asking Barry Bonds or Sammy Sosa to stop hitting homeruns. So, bless you Reverend. Thank you very, very much.

It’s an honor to close this part of the discussion with Virginia Walden-Ford. She currently serves as executive director of D.C. Parents for School Choice Inc. Before taking this leadership position, she served as community outreach director and media specialist for Friends of Choice in Urban Schools, also known as FOCUS, an advocacy organization currently supporting the D.C. charter school movement.

She worked with the National Center for Neighborhood Enterprise on parent outreach, organizing parents to support school choice and the D.C. Scholarship Act in 1998. She also worked as a volunteer with the Center for Education Reform, in their parent outreach campaign, and has worked as a financial manager of an international cultural exchange organization, and as the owner and operator of a child development center in Washington D.C. Thank you so much for joining us.

MS. VIRGINIA WALDEN-FORD: Good afternoon. I’d really like to thank the Pew Forum for including us. We’re definitely representing parents here today. And, you know, I thought long and hard about what I was going to say here. I’ve talked many times about my own personal story, and I think I need to talk about it again today.

Six years ago, I was a single mother, raising three children in Washington, and my youngest child was failing in the public school system. You know, I come from a traditional public school background; both of my parents were public school teachers, I taught, I have three sisters who taught in public education, and I just didn’t get it. I didn’t understand what was happening with this child. I mean, I spent time at the school, I talked to the teachers and administrators, and he still came home and was not succeeding, and getting in trouble, and acting out.

And I felt very, very pushed against the wall. I had no idea where to go with this child. I was certainly a working, middle class parent, but I was single, and the option certainly was not to send him to private school; I could not afford that. A neighbor saw something good in this child and offered us the opportunity to get a scholarship to send him to private school, and we did. And I watched him, just his whole attitude turn around dramatically and quickly.

This child went from being brought home by the police — actually, the final straw for me was I came home one day, and he was handcuffed to the porch. So, he went from that picture to excelling, running track; he graduated with honors, I have to tell you, and is now in the United States Marine Corps, and is just a great young man. You know, I talk about myself, but I see myself every day, in Washington. You know, we talk so much about the legal ramifications, the public policy issue, how this is going to affect whatever, but I talk to the people who it does affect. I talk to the parents who feel like they can no longer take seeing their children in schools that are not teaching them.

You know, yesterday, I spent all day on the telephone, and every time the telephone rang, starting when we got the announcement of the decision, and I picked the phone up, nobody said, “Hi, Ginny.” Every parent who called us said, “We won,” and not one of them was from Cleveland. We won. Parents won, you know. And as I talked to the parents yesterday, and I talked to them about what this means for D.C. parents, they get it. And that’s what I don’t think people were hearing.

You know, actually, I’m from Arkansas, and I went to Central High School, and I remember when the schools were closed, and I remember the schools that were formed for white kids to go to, where we had to figure out what to do with our kids. But what I’m seeing in traditional public education is not what we fought for. You know, I got a fine public school education, but that’s not what’s happening there.

You know, my mom was a public school teacher, retired. And when I first started advocating on behalf of vouchers, she called and said, “How could you do this?” “If your father,” who was also a public school administrator, and is now deceased, “if he were here, he would be really, really angry.” And I said, “You know, mamma, if daddy was alive, and he visited the public school system, and he saw what our kids were having to be subjected to, he’d be right here fighting with me.”

We want to see the public school system work. I had an assistant superintendent of D.C. Public Schools tell me a couple of years ago, when I was chatting with him, that they were going to do a big reform effort, and they were going to reform K through fifth grade. And I said, “Well, what happens to sixth through 12th grade,” and he said, “Well, you know, we’re going to concentrate on K through fifth, and those kids will gradually move out of the system and graduate, and these K through fifth graders will move into those slots, and they’ll be really educated well.”

At that moment, I had a child in the ninth grade. So, he was telling me, forget my child in the ninth grade; he’ll just move out of the system. That’s when I left. And a lot of parents are leaving not only for those reasons, but for a lot of other reasons. And Judith French said, the measures of success of the voucher programs all over the nation are determined by researchers who look at test scores and how the kids are doing academically. Absolutely, and we want to know that information.

But we also want to know the kids are safe, that they’re going to graduate, that somebody cares about what happens to them. So, there are a lot of things the parents are looking at, and that’s what’s wonderful about being able to provide options for parents. You know, actually, in Washington, in our little parent organization, we talk to parents no matter what schools they choose. I mean, we have parents who choose traditional public education, private schools with private scholarships, home schooling — we have a home schooling parent right over here with me today — and whatever option.

But what we say to them is the simple fact that we can give you the information to make a choice; that is the beauty of this. And, you know, I believe that parents want to make a choice. They want to have some kind of investment in what happens to their children, educationally. You know, I’m not angry; I want vouchers to be one of the choices. I also work with the Black Alliance for Educational Options, because there are a whole lot of us in the African-American community who believe that we can’t sit around and wait and sacrifice our kids.

How long are we going to wait? I mean we have to do something now. And that’s what this is about. A few years ago, I may not have even been up here, but I’ve watched what the system has done. I have eight children, and I have watched what the system has done to those kids. And so, if, for no other reason, I’m here to give that perspective from parents, the parents who this has affected.

It doesn’t matter what decisions are made amongst us, because the people who are really affected are the ones in Southeast. If you’re from Washington, Southeast is a very low-income community. Those are the parents who are going to be affected by this, and those are the parents that we’re going to support. And I’m going to fight, I’m going to fight as long as I can, because I might have grandchildren one day, and I don’t want to say to them, when their schools were not working right, that I sat back and did nothing. I couldn’t do that. My conscience won’t let me do that.

So, we have to keep on fighting. We have thousands of parents in Washington who we work with, thousands of parents. Not only did Washington parents call me yesterday, but I got a call from Tina Dupree in Florida, and Darius Stone in Dayton, Ohio, and Tracy from Detroit. Parents all over the country, African-American parents, are looking at how this is going to affect all of us. It can’t be anything but good.

The Supreme Court has said to us, I’m going to listen to parents. They have said to us, it is important that you have a choice; it is important how you feel. You don’t know what that does to parents. For the first time, we really believe we have a choice, and we do believe that people are listening to us. So, whatever happens — and it is going to be a lot of debate about this over the years — parents in this country, low-income parents and the working poor, are going to be at the forefront. And there are a lot of us, because we have a lot of kids. Thanks.

MR. DIONNE: I want to thank our panel for putting forward a really wonderful preview of what we are going to hear in our country in the next six months, six years, and maybe longer. We are hitting our time, and we neither have vouchers for lunch nor direct service, unfortunately. What I’d like to do is let it run over about 10 minutes or so, and I’d like to include as many voices as we can. Maybe we can take a few questions at a time, and then have the panelists respond, if that would be okay.

We’ll start over here with a lady who’s come all the way from Ohio to be with us today.

Q: My name is Jan Resseger. I’m here from the United Church of Christ Denominational Headquarters, which is in Cleveland, where I’m an advocate for public education in the justice ministries. I guess I just want to bring a critical perspective today, and broaden it. One of the things that has struck me in the litigation, and in the language of the majority decision, and in the press coverage, is that Cleveland schools have been absolutely trashed as some kind of aberrant public school failure that warranted this experiment.

I think this analysis misses the mark by misdiagnosing the scope and the true nature of the problem. I think Cleveland isn’t some sort of weird special case. Instead, it is every city; its schools are the schools of Hartford, and Philadelphia, and Washington, and Milwaukee, and Kansas City, and every other big city. I don’t want to let those schools off the hook, but I think the struggle is larger, and that the overwhelming challenge for urban public schools across this country is the challenge of overwhelming segregation by race and concentrated family poverty.

And I guess I would just like to put the question out to you all on the panel: how can we reframe this conversation so that we bein to address the challenges, the justice challenges that are underneath the public school crisis in our city?

MR. DIONNE: Thank you very, very much. Who has the other mike? Please.

Q: I’m Patrick Wolf. I’m a professor at Georgetown University. I have a question for Marc Egan. I wonder where you got your information that the Cleveland voucher program actually takes money from the public schools, because the actual law provides that 100 percent of the local spending on a child who uses the voucher stays at the previous public school; 100 percent of the federal money spent on that child stays at the previous public school, and 55 percent of the state money previously spent on that child stays in the previous public school.

And as a result of that, the Cleveland schools have actually been able to spend much more per student on students who remain in the public school since the voucher program has been implemented.

MR. DIONNE: Marc, just hold that for a second, because I want to get this gentleman over here.

Q: Ed Doerr. I’m the author of several books on vouchers. I’d like a panel response on three points. One, Washington D.C. is a majority black community, but 20 years ago, they had an extraordinarily generous tuition tax credit program on the ballot that was twice as generous as the Cleveland voucher program. It was defeated by voters in this city by 89 percent to 11 percent.

Next, in 1998, the U.S. Department of Education issued a report on the possible use of non-public schools to alleviate overcrowding in inner city public schools. They found that almost no non-public schools, which were religious, had any interest whatsoever in a religious opt-out. Therefore, it was seen that the religious or denominational nature of non-public schools determines who sends their kids there. And how can this avoid the fragmentation of our school population along religious lines, a la Northern Ireland?

And finally, no one seems to have discussed the question of cost. Getting kids to schools of parental choice means having a lot more buses, or something, to get a lot more kids moved around cities and neighborhoods. Pennsylvania, for instance, requires every one of the 500 school districts to bus kids up to 10 miles beyond a school district to non-public schools, including out of state. We know that even in public school choice systems, as in Cambridge, Massachusetts, the cost of transportation increases the school cost without any increase in educational value.

MR. DIONNE: Thank you. We’ve got some good questions here, one specifically to Marc on the issue of spending, another question on whether the real problem here is not race, and especially concentrated poverty and concentrated family poverty, and is that the better discussion to be having here. And then, the third, the three points, which you just heard on the voucher program losing here, no interest in religious opt-outs, and the cost of vouchers.

Marc, why don’t you start onto that specific question, and if you all could stay a little bit brief, I’d be grateful, so we could have at least a couple more rounds.

MR. EGAN: The question was from Dr. Wolf, right? Dr. Wolf, the Cleveland voucher program is funded out of state money, in Ohio, that is from a pot of money called Disadvantaged Pupil Impact Aid. It’s meant to go to disadvantaged public school students to pay for programs like smaller class sizes, reading improvement programs, and the like. And the money, instead of going to the public school students for that purpose, has been diverted to the voucher programs.

The superintendent, or as she’s called, the CEO of the Cleveland schools, Barbara Bird Bennett, has said it’s upwards of $14 million a year, in past years, that is diverted from the district. What is notable about that, though, and you pointed out that, in your view, spending is up per student, 33 percent of the students receiving voucher money in this program were already attending private schools before taxpayers began subsidizing their tuition. On the other hand, only 21 percent, it’s about 800 students out of 4,000 in the program, left the Cleveland public schools.

So, we’re seeing a diversion of money from the public schools, even though most of the beneficiaries of the program were already in private schools to begin with. And it ignores the fact that Cleveland’s public schools have 76,000 students still attending those schools; I think the focus ought to be, and the dollars, you know, money talks, and the dollars ought to be invested in the schools where 76,000 students in that city attend.

And if I could just quickly shift to some of the other questions. About the issue of how we reframe the debate, some folks saw this ruling yesterday as a major defeat; there was some hanging of the heads among public school advocates. We took a different approach. I think today’s debate, not just from voucher opponents, but even from voucher supporters, makes it very clear that this argument, in many ways, is just beginning.

And our approach and our feeling on the ruling is that this actually, while we would rather see energy, time, and passion devoted to things like making sure every school has a quality teacher in the classroom, manageable class sizes, modern schools, things like that, we’ve realized the debate, instead, is going to be public dollars for public schools or public dollars for private schools. The advantage, however, is that it gives us all a chance to point out the many, many needs in so many of our public schools to talk about what is best for all children.

Ms. Ford’s story, no one can help but be moved by her story. However, we have to think about the education of America’s kids in totality, not one child at a time, particularly if we are dealing with, which we are, taxpayer dollars. What is best for the majority of children in this country? We need to make sure that our public schools, all of them, are providing for all children.

MR. DIONNE: Who else wants to jump in on any of those, particularly on the D.C. experience in the past.

MS. WALDEN-FORD: I’d like to just comment briefly on the three things, or at least two of them, that you brought up: the fact that the vote in ’80, ’81, that people didn’t vote in favor of a tuition tax credit program; I vaguely remember that myself. Because I believe that, at that time, people were still — this is a very, very, very emotional city. I mean, people are very protective of what’s in here, and I think still, at that time, we hadn’t gone through eight superintendents, and people were still really hopeful, and didn’t think it was necessary. Personally, that’s my opinion.

As far as the transportation issue, one of the things that we see, we have 38 charter schools in D.C., and the charter school facilities have been a real issue. So, parents have had to transport their kids from some of the poorest sections of the city to where the charter schools are housed, and there’s never been an issue about transportation. They are, all the charter schools have waiting lists, they’re all full, there are thousands and thousands of kids in charter schools.

It seems to us that parents will get their kids where they feel that their kids will best benefit. But interestingly enough, this debate is going to be interesting, because we support traditional public schools. We believe that traditional education is going to support the masses of kids, but we want parents to have their children in quality environments. It is not that we do not support public schools; those are the schools in the neighborhood.

But I don’t want to have to pass three schools to find a quality school in my neighborhood — because I’m still raising children — to get to a school that’s going to serve their needs. I mean, I just really want all of our schools to be doing what they need to do to serve the needs of the children. So, I use my story as an example, but I certainly look at what’s happening nationwide and how best it’s going to benefit all children.

And I still feel very strongly that we cannot afford, while we’re trying to determine how to do this, we cannot afford to sacrifice one more child, black, white, Hispanic, it doesn’t matter. So, we have to provide options for the children, for the parents.

MR. DIONNE: Could I do something here? Could I keep these questions on the table, turn to you folks in the next round, and you can answer these, and we’ll add a couple more? I just want some more voices to be able to come in, in the audience. This lady in the back, these two gentlemen over here.

Q: I agree, and I think the conversation this morning has been very well balanced, and it’s been a great discussion to hear from all sides of the argument. My name is Mary Conk. I’m with the American Association of School Administrators. We represent the public local superintendents.

What my concern is here is we’re at the verge of possibly setting up a dual system, a tiered system, and I take that in light of the brand new ESEA law that has just been signed by our Congress. Public schools are under new mandates in terms of testing and accountability, curriculum content, teacher qualifications of who is teaching our children, all great things, all things that will hopefully improve our public school system.

I think one of the most crucial elements of it, as we talk about vouchers as a national policy element, is the phrase, scientifically based research, and the fact everything we now do in the public schools has to be scientifically-based. And what that means is there has to be randomized field-testing; there has to be a scientific background, almost like a medical model to do so. What worries me is if the voucher movement sort of takes off on a national policy level without the background of scientifically based research, if it proves by scientifically based research, well then, that’s another thing.

But do you see, do the panelists see a huge rush towards the getting of this research so that we are in line, or do you really see a dual system setting up, where we’re doing things in our public schools that, solutions and everything now, post January 8th of this year, that are all scientifically based, versus the accountability measures and the movement within the private schools, which may not have to be scientifically based?

MR. DIONNE: Thank you very much. Over here, sir.

Q: Hi, my name is Kevin O’Reilly, Knight-Ridder Tribune News Service. My question is also about accountability. We’ve seen with very low-income, very poorly performing schools that what we have is more federal funding going to those schools to help them out, as part of George W. Bush’s reform to give parents a choice after three or four years to maybe, then, possibly have a different choice.

But isn’t accountability with parental choice, isn’t the mechanism of accountability provided through the parents themselves, deciding where they want their children to go to school? Whereas with the public school system, you know, you’re there, that’s your only choice; there must be some public oversight. I’m curious about your thoughts about whether that is a valid mechanism or not. Thank you.

MR. DIONNE: And then, the gentleman behind.

Q: Once again, I’m Rob Marus with Associated Baptist Press, and my question is for Father Davis and Ms. Walden-Ford. Ms. Walden-Ford, I am also a graduate of Little Rock Central High School, but I grew up around the corner from Polaski Academy, which is one of those segregation academies that Reverend McDonald was talking about. And in every county seat town in the South, there’s a private school, Christian or otherwise, that could be traced to about a1960 founding.

Would you be comfortable with your tax dollars going to support schools like that? And for Father Davis, a similar question. In every county seat town in the South, unlike Cleveland, most of our private schools aren’t Catholic, they’re independent, fundamentalist, Baptist, or other Protestant schools, who don’t have a very high opinion, by and large, of the Catholic Church in a lot of their teaching. Would you support your tax dollars going to pay for the kind of teaching that goes on in schools like that?

MR. DIONNE: Thank you. A lot of provocative questions. If you could hold on for a second so I could move to this side of the panel. We’ve got tiered system fragmentation, research for accountability, the parents themselves through accountability, this excellent question out of Little Rock. Also, the concentrated poverty question is still on the table. Why don’t you take it, Father, and then Reverend McDonald? I didn’t mean to divide it clergy, lay people, by the way. (Laughter.)

FATHER DAVIS: Let me just address the segregation issue, because I just can’t allow that to sit on the table without a response. To even imply that every person who supports parental choice in education is seeking to segregate children into segregationist academies — the Catholic Church has been in the education ministry since it was founded, the Catholic Church has provided education for poor, black, Native Americans, in this country, since it came here, before this nation ever existed. We are the school system that has remained in the inner city. We have made a calculated decision to spend human and financial resources to maintain those schools.

To say that in the city of Atlanta two Catholic schools close, Catholic schools close in a number of places around the country, for a variety of reasons. There was nothing said about the plans of the Archdiocese of Atlanta, which are in effect now, that, over a five year period, they’re opening 10 new schools.

We are in the inner city in every major city in this country. We maintain a school system that has the same basic percentage of minority students the public schools have in this country. Twenty-six percent of the children in Catholic schools are minorities. Thirteen percent of the people who attend our schools are non-Catholics.

We spend millions and millions of dollars; we spend our lives educating children in those schools. We will do everything. The Catholic Church’s social justice ministry seeks to end that financial segregation that does exist in cities every day of its life. We provide schools, we provide hospitals, we provide homeless shelters, we provide food, kitchens, we provide ministry to the poor, whether they’re Catholic or not.

As far as accountability goes, we are accountable. We test our children. There are numerous studies out there that show how Catholic schools are serving their people. The vast majority of those students, almost 100 percent of them, graduate from elementary school, graduate from high school, go on to college. That’s accountability. That, in a sense, is not necessarily taking a test, it’s saying a child succeeds and gets out of grammar school, knows how to read, knows how to write, knows how to calculate, and can move on into high school, and from high school, goes onto college, and from college, goes onto gainful employment.

We are spending our lives trying to educate the poor. I visited two schools recently, one in Chicago and one in St. Louis. The high school in Chicago, 100 percent minority, all Mexican-Americans. Every single one of those kids they have had in its six-year history, one dropout. We visited a middle school in St. Louis that educates all African-American middle-school-age children. None of those children have dropped out of that school since it’s been founded.

That’s our ministry. That’s our accountability. We’re willing to take tests. There is no single test that will tell whether children are achieving on the same level. We say we’re accountable, and we are. And if we’re not doing our job, people can walk out and leave. We do not throw people out. The distortions that are used in these campaigns, public campaigns on vouchers, are so obvious it’s pathetic. You know, when you look at the fact that Ted Forstmann and John Walton put up $100 million for private scholarships, 20,000, and they had 1.25 million applications for those 20,000 tells you that people do support vouchers.

MR. DIONNE: Reverend McDonald.

REV. MCDONALD: Let me respond. And in the Baptist Church, we say a hit dog will holler. And I don’t say that in any disrespect to the Father, but I do want to point out that you just supported my argument. The two schools, the Catholic schools that were closed in Atlanta, were African-American schools. They were in African-American communities, and I thank the Catholic Church for being there for the number of years that they were there, but that was not my point at all.

My point was the Catholic Church is being co-opted by the religious right and needs to be aware of the co-opting that is taking place. You mentioned, in fact, my good sister from Washington, the BAEO, I asked the question why and who. Who is the Black Alliance for Education Options? Who are they, and where did it come from, who funds them, who backs them?

You mentioned Ted Forstmann. If you look at what we call, what has been identified as the right wing groups, and Ted Forstmann’s relationship to those groups, even though he has been successful, even getting Martin Luther King the Third, Andy Young, who we’ve had some conversations with. Once they found out exactly what was going on, their names, they requested that their names be moved from their site; their names are still on his site.

Because this is not just about local politics. My point and what I stand on, and I believe very firmly that this has been going on for about 50 years and that there are forces out there — there was even a program called the Samaritan Project, at the same time they were trying to co-opt the Catholic Church, they were coming into the black church, and it was called the Samaritan Project. And we who are part of the African-American Ministers Council took on the Samaritan Project, and we educated our pastors, black pastors, about who these folks were, what they were about.

And you don’t hear anything about the Samaritan Project now because we killed it. I would hope and I would pray that we would not see ourselves in isolation. It’s just like we talk about the HMOs, and this last thing, your health maintenance organizations, we’re in an era now of what is being known as EMOs, the education maintenance organizations, and there are folks that are sitting in high places. You’re talking about a $600 billion enterprise that’s primarily funded by local money, not federal money.

Education is funded, primarily, locally, but you’ve got folk who have been badgering and beating, and why are they doing it? To get their hands on the money.

MR. DIONNE: And then, briefly, the specific question was to Ms. Walden-Ford, if you could take that.

MS. WALDEN-FORD: About Little Rock.

MR. DIONNE: Yeah, about Little Rock. And then I’m going to do one big round, and I’m going to throw in a couple quick ones myself, and then let our panel close, because we are approaching 10 to one. So, please.

MS. WALDEN-FORD: Many of those schools, when I finished school, a lot of those schools were still in existence, a lot of them have closed; they were bad, they were real bad. I don’t think parents would choose those schools, to be perfectly honest, and so, we’re assuming the parents are going to have the right to choose certain schools. Well, we’re underestimating the ability of parents to make choices for their children.

I can’t even imagine myself choosing one of those schools that are open, unless they have changed an awful lot since I left Arkansas. I think we have to give more benefit of the doubt to parents to make the best choices.

MR. DIONNE: Thank you. Ms. Tillman over here, the gentleman in front in the blue jacket wanted to get in, that gentleman, that gentleman, and that gentleman, then I think we’re going to have to stop. So, why don’t we start with Ms. Tillman — and briefly, everybody, if you could, please.

Q: Tasha Tillman. I’ll try to be brief again. Reverend McDonald, while you’re perfectly entitled to have your opinion, in my humble opinion, I would suggest that you go back and look at the numbers of children, black children, who are failing in our public schools. And you may not support vouchers for your child, and that’s okay for you, but for my child, I feel the way that you feel in, you can do whatever you want to to me, but not to my child.

And I will not let my child become an object of discussion for the public school system to fail, if that is a school that they’re in, if it’s a failing school. Public school works for some, but not for all. Vouchers will work for some and not for all. Charters will work for some and not for all. Home schooling will work for some, but not for all. All we’re saying is our kids deserve a choice.

MR. DIONNE: Thank you. Let’s see, who has the mike, sir. And then, this gentleman, you still wanted to get in, okay.

Q: Scott Mellon with the American Jewish Congress. We’ve talked a lot about individual parent choice and how important that is, and I’m very sympathetic to parents who are in really bad schools and sort of feel like they’re trapped. But one thing I want to bring up, and it was talked a little bit about by Nicholas Miller earlier, is that if you look around the world, and you look at where the conflicts are right now, you look in Pakistan, India, you look in North Ireland, you look in the Middle East, you have these big conflicts on religion. They’re battles that are not going to be won over religion.

In this country, you have not had that problem. What you have had in this country has been a big problem with racism. And one of the big things civil rights leaders fought for was desegregation of the schools, because we knew that if you don’t desegregate the schools, kids aren’t taught tolerance. Now, one of the big arguments you hear from parents in favor of choice is that I should be able to decide how my child is educated, and I should be able to decide where and what culture that’s done in. I may want them to be in a school that’s all Baptist students.

But in this nature of tolerance, if we start re-segregating schools, we segregate by religion, we segregate by race, because we want our kids to be in schools where everybody’s the same culture, they don’t get to meet students of other types, they don’t get to learn tolerance. And while that’s okay, and I have no problems with private schools, and individual parents have that right, the government has a responsibility to be able to provide a democracy, and that democracy needs people to have tolerance.

What would you think about the fact it’s the government’s duty to teach tolerance? And if it’s providing vouchers, where students are going to schools all the same, it goes counter to that goal.

MR. DIONNE: Thank you. And then, this gentleman over here, and then that gentleman, and then we’ll shut it down. I’m sorry, but I know a lot of people will need to go. Sir, thank you.

Q: Thank you very much. My name is Rob Levy, and I am an intern with the Americans United for the Separation of Church and State. More importantly right now, I am actually a student at the University of Pennsylvania in Philadelphia. We’re having a very similar debate about education, except it’s over private companies like Edison taking over the education, because, like in Cleveland, our schools are failing us.

And the comparison that I’m going to try to make, I think, is going to raise a bigger question. With Edison, if any of you have been hearing the debate, there are a few successes and there are many failures. Their stock has dropped from $20 to below $3. And now that the state has given over 20 schools from Philadelphia to Edison, there are a lot of people wondering what the future of Philadelphia schools are.

And I think this raises a bigger question. And the point is that we are giving up responsibility from ourselves, on our child, to other people, to other groups, whether it’s religious groups, whether it’s private companies, because we have failed them. And we’re passing the buck, and we’re just hoping. We’ve got examples of religious schools that are succeeding and new ones that are being built, and we’ve got ones that are coming down.

We’ve got accountability, and we’ve got discrimination. And the problem is, these schools, we’re not choosing the superintendents, we’re not choosing the policies, we’re not choosing what the accountability methods are, whether it’s a private company like Edison, or whether it’s a religious institution. And I want to know how we can take the responsibility back into our hands, instead of going down this dangerous slippery slope of giving it to other organizations, which we just hope will treat our children right.

MR. DIONNE: Thank you very much. And the last word before the panel is to this gentleman. If you could, again, identify yourself.

Q: Marc Sorel from the American Jewish Committee. I’d just like to thank all of you for coming here today and presenting your views. You’ve been very interesting, very informative. My question would be directly addressed towards Ms. Walden-Ford. I admire your passion, I admire your desire to make sure your kids have the best they can possibly have, and I admire the fact that you came here today to express your views and let us know about your personal situation.

But what I wonder, and I come from a school in Connecticut right now, where — O’Neil just got its second ruling at the board, an attempt to resolve an educational issue at a local level, keeping it within the public realm. I was wondering if you have this kind of passion — and I don’t mean to make any personal attack on your style of parenting or anything — but I just wonder, if you have this kind of passion, why haven’t you rededicated it to your public schools instead of choosing to devote it to another school?

And I wonder, personally, if you think that this might be dividing the effort to make public schools better and to make private schools better. And it’s not, instead of developing one, solid, fundamental solution, it’s dividing the effort and making two substandard solutions to the problem.

MR. DIONNE: Thank you very much. Here’s what I’d like to do: We can go in reverse order from the way we started. And I want to throw two questions on the table myself, one to voucher supporters and one to voucher opponents. To the voucher opponents, I just want to say, I know a couple people who are deeply involved in improving the public schools, and they are not for vouchers, and they have spent their lives trying to fix public schools.

And both these people say, I’m against vouchers, but I’m actually very glad voucher advocates are there, because they’re putting a lot of pressure on public systems, and they’re actually making it easier for reformers to make their case for reform, because they’re creating a sense of urgency among the people who run and serve and work in the public school system, and I just wanted to hear a response to that, too.

Voucher supporters, I’d like to ask you, isn’t this education reform on the cheap? When you look at $2,250, when in many of our school systems, the problem is both a need for reform and money, there are many of these inner city systems that actually have many fewer resources than some of the very good suburban systems. And so, the question to you is, is there a danger here that this is a diversion, and that, in fact, it’s a way around having to do what we really need to do to fix public schools?

So, one to each of you, plus these excellent questions about tolerance, about whether we’re just handing off responsibility to others for the public school system, the question from Ms. Tillman directed to Mr. McDonald about, well, this is really about personal choice. And why don’t you start off?

MS. WALDEN-FORD: Okay, one of the things that I want to say is, I do tell my personal story, but I’m involved in education reform all over the place. I mean, I really believe that we all have to fight to do a couple of things: one, make sure that the traditional public school system is meeting the needs of children, but in the meantime, have options available. Some of my children were educated in the public school system, and I saw some changes occur that made me feel that we had to do something different with younger children.

And in doing that, it did not necessarily mean I left working in traditional education, because I have not. Our organization works with all parents, whatever schools they choose. We work with about 4,000 Washington, D.C., parents, and many of them have chosen traditional education. But we work to see what we can do, as parent advocates, to look at all of those kinds of things. But we believe very, very strongly and very, very passionately that in the meantime, we can’t afford to lose children.

We have to provide all kinds of options and make those available to low-income families, so that they don’t feel that they just have to sit there and wait for all these good meaning people who are going to fix the schools to come in and do it. And that’s how they feel. So our fight is not against traditional education — Marc and I are getting along very well here today — it is for quality education.

I’m old enough to remember the civil rights movement very well. I mean, we desegregated Little Rock high schools for a lot of years. It didn’t just immediately get desegregated in 1957, when the Little Rock Nine went in. We won court orders in ’65 to take black kids into white schools. And I was one of those kids, you know, and I saw the difference in having gone through black schools until eighth grade, and I saw the difference in what kind of education we were getting, and I was hungry for it.

And I took everything that the education system could give me. And I fought with every bit of strength in my body to make sure that all African-American kids all over the country would be able to have the same feelings I feel. And when I go into the public schools nowadays — and not all of them, but a whole bunch of them, especially here in Washington, D.C. — and I see those same schools not caring about what happens to those kids, that’s not what I fought for, and that’s not what I put up with for three years in high school.

So, we have to continue to fight. And if people oppose it, fine. I have to deal with the parents every day who are in the midst of all of this, every single day. I cry every day — and I’m not exaggerating, and you can ask my staff over there. Because the pain that we feel for the children that are not getting it — and yeah, I’m going to support vouchers, because I’m going to support anything that gets them out of those situations.

MR. DIONNE: Thank you very much. Let’s see, Reverend McDonald.

REV. MCDONALD: Let me answer your question first. I do believe that the debate has been extremely healthy for both sides, both for the public school and for the private school sectors. It has caused both to question, to evaluate, to analyze, to deal with issues of accountability from the top on down, and that, indeed, is a healthy thing.

At the end of the day, we have to ask the question, have we done those things which benefit the masses of our people, of our children, in this case, or have we done those things that benefit just a small segment of our children’s population? And what are the implications of that for our future as a nation, and for a democracy that we believe in so fundamentally? I think every parent has a right to stand up for their child, but I’m not going to do that at the expense of my neighbor’s child.

I mean, my tradition, my faith does not allow me to do that. I’m not going to take $1,000 over here and take away $1,000 over there and think that I’m doing something. I believe that, fundamentally, we are setting up a dual system. And we’ve had pseudo-dual up until now, but I think if we continue down the road that we’re going, it’s going to become even more emphasized, and we are going to begin to see some of the conflicts, some of the tension that we are already experiencing among people of faith, where we did not have these tensions before — the Catholic Church, black church, Jewish community.

Let me say this. My kids went to private schools for the first few years. I have three kids who graduated from public schools. I understand the value; I’m not against private schools. But I paid for it. I think it is absolutely wrong to take public dollars and pay for private schools. When my kids went to private schools, and all three of them did for five years each, my wife and I paid for that, and we thought that was the right thing to do.

MS. WALDEN-FORD: But that was the point: you could pay for it. We’re talking about people who cannot pay for it.

REV. MCDONALD: Well, my point here is, public dollars is still public dollars. And I pastor, I have parents just like you — I have parents just like you. I have over 2,000 members, and some of our kids are in private schools, and some of our kids are in public schools. I try to be a part of both. But my calling, as a person of faith, to try to avoid what I see our nation moving towards is this great divide, this dual system, these religious battles, is to make sure that I’m trying to do what is in the best interests of the whole, even if that means that I’ve got to make some sacrifices for myself and my family.

Q: Shirley Junior. I will be brief. This child loves school. She begged me to take her to school when she was three years old. I started her in a public school. She went there, just ended her third year; she’s going into the second grade. She has told me, “I don’t want to go to school,” because of things that happen in the school. That public school failed her so miserably.

And I have supported, even though I’m working toward school choice, I have totally supported public schools. I’ve raised two sons by myself; they both went to public schools. I’m a product of a public school, and I believe the public school system can work if everybody works to make it work. But in the meantime, we’re losing children. This child is getting turned off. She’s incredibly bright. She doesn’t need to be turned off because somebody doesn’t care enough about her to see that she gets what she should get.

And I’m a grandparent raising this child. I’m doing this the second time around by myself, and I don’t have money to send her to a private school. Does that mean I have to let this child continue to be miserable and fail because I can’t afford to send her?
REV. MCDONALD: One other thing that has not been said today is that we assume there are no options in public schools. That is not true. There are options in public schools.

MR. DIONNE: Wait a second, wait a second, I’m sorry. Brothers and sisters, friends, thank you for your argument. It’s a fair argument. Can you take that up afterward? I want to get our other two folks in, and we can continue. This is an issue that’s going to arouse intelligent passion just like that.

If I could just turn to Marc — and I’d like to remind our last two speakers of that wonderful line, “Brevity is the soul of wit.” So, Marc and Father Davis.

MR. EGAN: I’ll try to be brief. I just wanted to speak on two issues or two questions that were raised, and one in the accountability issue. And clearly, we have a difference of opinion of what accountability in education means from those who support school vouchers. And I think there’s been a large debate, or a mischaracterization, that a parent whose child is in a public school is there only because they have to be there. That is not the case everywhere.

In many cases, in many schools, many, many parents chose to send their child to a public school because they liked the public school, because they believe in it, because it works, because it’s providing for their children and their community. On the accountability angle, we do see two tracks being set up by lawmakers for public schools and for private schools, both of which, under vouchers, receive tax money.

Now, if we really truly believe, or if the argument truly is apparent, can be and should be the only determinant of accountability for how a school is performing — a school funded by taxpayers — then why isn’t that same option given to parents in public schools? And here’s what I mean by that. In the state of Florida, in the voucher program, if your child is in what the state calls a failing school, based on only one test, not a variety of measures, like some here have said there should be, based on one test, that child has the option to go to two different places, either a private school, any private school that has decided to participate, or a public school that the state has decided to grade, or has graded, at a C or higher.

In other words, the state, saying they support true public choice, they believe parents can make the best decision, they don’t trust the parents, clearly, to choose another public school. They say, well, we have to measure whether or not that school fits the needs for your child. But if you choose a private school, where there are no similar public standards that are reported to the public, it’s okay. We see that as a complete double standard.

And we think that’s where the debate is going to go in the next few months, because we really do believe that you cannot lose sight of the fact that you’re talking about tax money. If a parent decides that their private school is meeting their children’s needs, shouldn’t a public school student, public school parent be able to make that same determination? Why should a school that’s public be deemed a failure or have to be subjected to state government regulations and restrictions if parents in those schools are satisfied? There’s a double standard there.

And the second, the last thing — and I’m trying to be brief — is your question, E.J. I do think that this entire debate has focused attention and shown, clearly, today and elsewhere, how much passion there is for education in this country, and I hope it always remains that way. We’re in trouble if it doesn’t. But I do think that there has been more focus now put on, are public schools succeeding? I believe many of them are, some of them are not, and I think all attention and all resources need to be invested, and all energy, and people like Ms. Ford, and people like me, and people like everyone that is here, have to work to make sure that those schools are providing for every child.

And, you know, diverting that attention and those resources to schools that really do play by a different set of rules, that clearly, like in Cleveland, don’t provide for some children, like those with disabilities, we think that’s a terrible way to go.

MR. DIONNE: Thank you. And the last shall be first, and the first shall be last. Father Davis.

FATHER DAVIS: Well, first of all, I forgot what your question was. (Laughter.) But let me just say a couple of things, and some things I’ve said before. The position of the Bishops of the United States, the Catholic Church, the educational community, is we want quality education in every facility, whether it’s a public, private, or a religious school. That’s a given. So, we are working, we support efforts to equalize the financing of public schools, we want curriculum to be good, we want teachers to be qualified, and we also want that to be done in the private and the religious school community.

As for the question that was asked before, which I didn’t actually get a chance to answer, about whether I would like money going into schools, you know, that teach intolerance or hatred, or something, we’re clear on that. We say that we should have these options, provided that they offer a quality program and do not teach or practice intolerance or advocate illegal activity.

We can have the debate, if you want to talk about it, later. The other thing is we keep talking about this divisive element, and it was raised in the decision yesterday by Justice Breyer, and it was responded to in a footnote by Chief Justice Rehnquist, and it says that the only divisive element that he’s been able to see in the discussion was the divisiveness that was caused by the suit to bring that voucher case down.

There doesn’t have to be divisiveness. And the examples that have been used on a number of occasions here today, talking about the Balkans, talking about Northern Ireland, talking about the Middle East, that doesn’t have to be the reality. There is no divisiveness in Australia, where they have the same First Amendment that we have in our Constitution, and they interpret entirely differently, and there is public financing of private and religious schools, and there is no divisiveness.

There’s no divisiveness in England, there’s no divisiveness in Holland, where they have these programs. It doesn’t have to be that way. We will make it that way if we continue to throw up these hobgoblins of fear about what is going on in private schools. We’ve been around for a long time. We did not appear on the scene in 1954. We appeared on the scene when Catholics first arrived in this country, and we have been there.

And Catholic schools began to desegregate in the South before the public schools did, before Brown. The Archdiocese of Washington, the Archdiocese of New Orleans, the Archbishop of New Orleans excommunicated people who opposed his efforts to desegregate the schools in New Orleans. So, you know, divisiveness doesn’t have to be there, and I think that we need to have quality education for all of our children, and we need to have options, because as I said at the beginning, one model does not fit all children, and they should have options to choose from.

And the government has a responsibility to assist people to get that. The church, my church has a responsibility, and has consistently done this to assist parents who cannot afford to send their children to Catholic schools. We provide them with benefits, we provide them with tuition that does not pay for the full amount of the cost of the education, because we want them to have that education. And we’re not going to sacrifice our mission to get a dollar out of the federal government. We will not do that.

MR. DIONNE: The Reverend Davis reminded me of when a famous southern, Louisiana segregationist called Leander Perez was actually excommunicated from the Catholic Church over the segregation issue, and he announced that he would form a church of Perezbyterians. (Laughter.)

Melissa’s going to come up to say the final non-divisive, non-sectarian blessing. I just want to thank this panel for a truly wonderful and enlightening set of arguments, vigorous and civil, and we hope to see you all again. Thank you so much.

MS. MELISSA ROGERS: Thank you. I wanted just to say thanks to everyone, and especially you all, who’ve stayed, and for this dialogue. Could the members of the Pew Forum staff please stand up, and let’s give them a round of applause for their efforts. Thank you very much, from the bottom of my heart, for all their hard work, and thank you, E.J. And all of you have a good day. We know this is the beginning of a very important debate.