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Jewish World Review Feb. 19, 2002 / 7 Adar, 5762

George Will

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Choice is indeed the American way -- ROBERTA KITCHEN of Cleveland, Tracy Richardson of Pensacola, Fla., and Tony Higgins of Milwaukee are black and have school-age children. And they are enemies of the American way. So say People for the American Way, teachers unions and others in the anti-choice coalition waging last-ditch resistance to people like Kitchen, Richardson and Higgins.

The three were in Washington last week to talk about their lives because this Wednesday the Supreme Court will hold in its hands their happiness and that of millions of similarly situated parents and children. Their situation is perilous. The case the court will consider on Wednesday has greater implications for equality of opportunity than any it has heard in the 48 years since Brown v. Board of Education.

The case comes from Cleveland, where Kitchen, who is raising five children abandoned by their alcoholic and drug-addicted mother, has participated in a program that provides $2,250 scholarships to low-income students to attend participating private or suburban public schools. The program empowers parents to choose alternatives to the Cleveland public schools that Ohio declared to be in a state of "academic emergency" when the school district flunked 27 of 27 standards for student performance. At Euclid Park School, drug- and gang-infested, one of Kitchen's children reached sixth grade getting good grades -- and essentially unable to read.

When Richardson's income was $11,000 a year she rescued her daughter from a failing school through a Florida program similar to Cleveland's. Higgins's income was $14,000 when a similar Milwaukee program for his child that included after-school supervision enabled him to continue his education part-time. He gets his college degree this August.

Anti-choice forces have lost six consecutive attempts to get the Supreme Court to declare unconstitutional -- as violating the separation of church and state -- all programs in which individuals were empowered to direct public funds to religious schools or programs. The court says such empowerment is permissible on two conditions. The conditions are tailored to prevent the perception of government endorsement of religion and to guarantee that the primary effect of the program is not to advance religion.

One condition is that the choice of where to spend the money is a "true private choice" -- what Supreme Court Justices Sandra Day O'Connor and Stephen Breyer have called a choice "wholly dependent on the student's private decision." Cleveland's program satisfies those justices' condition: Scholarship checks are payable to the parents, who designate the recipient school.

The other condition is "neutrality." Educational assistance must be for a class -- in Cleveland, poor children -- defined without reference to religion; the program must contain no incentive to choose religious schools; and the range of choices must include more than religious schools.

The anti-choice coalition attacks Cleveland's program by substituting a misleading statistic for the court's carefully crafted principle. The coalition says the program must be unconstitutional because so many parents have chosen inner-city religious schools.

But of course most have. They have severely restricted options because suburban public schools refuse to receive poor inner-city scholarship children. So the suburban schools have created the statistic that opponents of school choice say renders the program unconstitutional.

Were the court to accept this perverse argument, it would be permitting a third-party veto over a program perfectly neutral regarding religion. Such a veto would be analogous to something the court hitherto has disapproved.

Time was, communities would ban Party A from speaking publicly if there were a danger that Party B would be disorderly in disagreeing with Party A. The court has declared this "hecklers' veto" unconstitutional.

Now suburban schools, by shutting their doors to inner-city students, thereby create the fact that most schools that will accept those students are inner-city religious schools. Were the court to say that this statistical outcome makes the scholarship program unconstitutional, the court would be allowing the suburban schools' decision to control the constitutionality of a program designed for others.

The anti-choice coalition's position is that because some schools -- those in the suburbs -- reject poor inner-city children, no school should be permitted to participate in the program. However, the court has held that under the Individuals with Disabilities Education Act, when public schools fail to provide appropriate education, children can choose to receive it, at public expense, from private schools.

Children in Cleveland, and millions elsewhere, are being disabled -- their opportunities as restricted as they would be by some physical or mental disabilities -- by the anti-choice coalition's campaign to turn the Constitution into a barricade to prevent poor children from escaping from the public school plantation.

This is "the American way"? Surely the court will disagree.

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