The rise and fall of school vouchers: A story of religion, race, and politics

UCLA Law Review

Volumn 54, Issue 3, 2007, Pages 547-604

  Forman Jr , James ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 33947644800     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (357)

1. 536 U.S. 639 (2002).
2. Id. at 647.
3. See id. at 684 (Stevens, J., dissenting); Brief in Opposition for Respondents Doris Simmons-Harris et al. at 6-8, 17, Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (No. 00-1751).
4. CLINT BOLICK, VOUCHER WARS 157 (2003).
5. John C Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279, 279 (2001);
6. see also Stuart Taylor, Jr., Nothing in the Constitution Bars Helping Inner-City Kids, 34 NAT'L J. 520, 520 (2002) (describing Zelman as "certainly the most important church-state case in many years");
7. Linda Greenhouse, Supreme Court, 5-4, Upholds Voucher System that Pays Religious Schools' Tuition, N.Y. TIMES, June 28, 2002, at A1 (describing Zelman as "[t]he most important ruling on religion and the schools in the 40 years since the court declared organized prayer in the public schools to be unconstitutional").
8. The three states were Florida, Ohio, and Wisconsin. See Florida Department of Education, Opportunity Scholarship Program (July 2006), available at http://www.floridaschoolchoice.org/Information/ OSP/files/Fast_Facts_OSP.pdf;
9. School Choice Facts, Cleveland Scholarship and Tutoring Program (Dec. 2005), http://www.schoolchoiceinfo.org/facts/index.cfm?fl_id=2;
10. School Choice Facts, Milwaukee Parental Choice Program (Nov. 2005), http://www.schoolchoiceinfo.org/facts/index.cfm?fl_id=1.
11. See, e.g., Jacques Steinberg, Cleveland Case Poses New Test for Vouchers, N.Y. TIMES, Feb. 10, 2002, at 1.
12. Steven Menashi, The Church State-Tangle, POL'Y REV., Aug. & Sept. 2002, at 37, 38 (quoting Joseph Overton of the provoucher Mackinac Center for Public Policy), available at http://www.policyreview.org/aug02/menashi.html. Winning the federal constitutional battle still left room for state constitutional challenges to voucher programs, and there have been many such.
13. For a discussion, see Jill Goldenziel, Blaine's Name In Vain?: State Constitutions, School Choice, and Charitable Choice, 83 DENV. U. L. REV. 57 (2005).
14. See Heritage Foundation, Where's School Choice?, http://www.heritage.org/Research/ Education/SchoolChoice/schoolchoice.cfm (last visited Jan. 5, 2007). In addition to the jurisdictions that have passed voucher plans, two of the five states that had tuition-tax-credit plans at the time of Zelman have expanded those programs. See id.
15. See Margaret Talbot, The New Counterculture, ATLANTIC MONTHLY, Nov. 2001, at 136, 139.
16. Center for Education Reform, National Charter School Data (Sept. 2006), available at http://www.edreform.com/_upload/ncsw-numbers.pdf.
17. Evangelical Christianity has a complex history, and the term "evangelical" today does not mean the same thing to everyone. For the purposes of this Article, I adopt George Marsden's definition: Evangelicals accept (1) "the final authority of the Bible"; (2) "the real historical character of God's saving work recorded in Scripture"; (3) "salvation to eternal life based on Christ's redemption"; and (4) "the importance of evangelism missions, and . . . a spiritually transformed life." GEORGE M. MARSDEN, UNDERSTANDING FUNDAMENTALISM AND EVANGELICALISM 4-5 (1991).
18. NOAH WEBSTER, On the Education of Youth in America (1788), in A COLLECTION OF ESSAYS AND FUGITIV WRITINGS 1, 26 (Boston, I. Thomas & E.T. Andrews 1790).
19. Tammi Reed Ledbetter, Christian Schools, Homeschooling Make Gains Among Southern Baptists, BAPTIST PRESS NEWS, Mar. 12, 2003 (quoting Glen Schultz), http://www.bpnews.net/ printerfriendly.asp?ID= 15424.
20. Kathleen Vail, Conservatively Speaking, AM. SCH. BOARD J., Dec. 1995, at 30, 32 (quoting Pat Robertson).
21. Id.
22. See Jeffries & Ryan, supra note 5, at 344-46.
23. President George Washington, Farewell Address to the People of the United States (Sept. 17, 1796). The well-regarded Massachusetts Constitution of 1780 stated that "the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality," and "these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instruction in piety, religion, and morality." MASS. CONST. of 1780, pt. I, art. III.
24. As Congress directed in the Northwest Ordinance of 1787, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Northwest Ordinance of 1787, ch. 8, 1 Stat. 50 (1789).
25. See WILLIAM J. REESE, AMERICA'S PUBLIC SCHOOLS 45, 118, 148 (2005) (discussing growth of common schools).
26. See DAVID TYACK, SEEKING COMMON GROUND 74 (2003).
27. Id. at 26.
28. See id. at 28-29.
29. 2 MINN. GEN. STAT., ch. 36, §§ 177-178 (West 1883 & Supp. 1888).
30. Oregon, for example, prohibited any textbook that "speaks slightingly of the founders of the republic, or of the men who preserved the union, or which belies or undervalues their work." TYACK, supra note 21, at 53.
31. The 1838 report filed by the Ohio Superintendent of Common Schools to the state legislature was typical of the era: "It can not be too deeply impressed on all minds, that we are a Christian, as well as a republican people; and the utmost care should be taken to inculcate sound principles of Christian morality. No creed or catechism of any sect should be introduced into our schools; there is a broad, common ground, where all Christians and lovers of virtue meet." Michael W. McConnell, Education Disestablishment: Why Democratic Values Are Ill-Served by Democratic Control of Schooling, in MORAL AND POLITICAL EDUCATION 87, 108 (Stephen Macedo & Yael Tamir eds., 2002).
32. See Jeffries & Ryan, supra note 5, at 298-99.
33. 4 CONG. REC. 5561, 5562 (1876) (statement of Sen. Frelinghuysen).
34. See Jeffries & Ryan, supra note 5, at 299-305.
35. As leading educator Horace Mann remarked, "[O]ur system earnestly inculcates all Christian morals; . . . in receiving the Bible, it allows it to do what it is allowed to do in no other system, - to speak for itself. But here it stops." HORACE MANN, TWELFTH ANNUAL REPORT OF THE SECRETARY OF THE BOARD OF EDUCATION 116-17 (Boston, Dutton & Wemworth 1849).
36. See NOAH FELDMAN, DIVIDED BY GOD 63-64 (2005).
37. See ROSEMARY C. SALOMONE, VISIONS OF SCHOOLING 19 (2000).
38. See Jeffries & Ryan, supra note 5, at 302-05.
39. See TYACK, supra note 21, at 169.
40. SALOMONE, supra note 32, at 21.
41. See Jeffries & Ryan, supra note 5, at 300-01.
42. 330 U.S. 1 (1947).
43. Brief Amici Curiae of National Council of Catholic Men & National Council of Catholic Women at 21, 30, Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947) (No. 52).
44. Id. at 16-17.
45. See MARSDEN, supra note 12, at 10-11.
46. 370 U.S. 421 (1962).
47. Id. at 422.
48. See Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 223 (1963).
49. See WILLIAM MARTIN, WITH GOD ON OUR SIDE 77 (1996) ("[N]othing, perhaps, generated more lasting resentment against the Supreme Court and stirred more concern among conservative Christians than the 1962 and 1963 decisions banning officially sponsored prayer and Bible reading in public schools.").
50. JERRY FALWELL, LISTEN, AMERICA! 205 (1980) ("We were taught to reverence God, the Bible, and prayer. Although, at that time, I was not a Christian . . . , I gained a respect for God, the Bible, the church, and for things that were holy. I learned all those principles in a public school.").
51. Id.
52. Id.
53. Melvin I. Urofsky & Martha May, Introduction to THE NEW CHRISTIAN RIGHT, at ix, xi (Melvin I. Urofsky & Martha May eds., 1996). James Robison, nationally syndicated television evangelist, made similar arguments: "[T]he assassinations [of public figures,] acceleration of the Vietnam War, escalation of crime, disintegration of families, racial conflict, teenage pregnancies and venereal disease" can all be attributed "to the Supreme Court's ban on mandatory school prayer."
54. DAVID BOLLIER, LIBERTY AND JUSTICE FOR SOME 205 (1982).
55. 827 F.2d 1058 (6th Cir. 1987). For two excellent accounts of the Mozert litigation, see STEPHEN BATES, BATTLEGROUND (1993);
56. Nomi Maya Stolzenberg, "He Drew a Circle that Shut Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 HARV. L. REV. 581 (1993).
57. See Stolzenberg, supra note 49, at 593. Lead plaintiff Robert Mozert objected to a story about how a boy named Jim and a girl named Pat learned to make sandwiches and pudding. The story started like this: "Pat has a big book. Pat reads the big book. Jim reads the big book. Pat reads to Jim. Jim cooks." Editorial, See Jim and Pat Cook. Jim Cooks First, N.Y. TIMES, Mar. 13, 1986, at A26. Mozert challenged the book on the ground that it carried an implicit message - "there are no God-given roles for the different sexes" - that interfered with his ability to direct his child's religious upbringing.
58. Robert B. Mozert Jr., Letter to the Editor, KINGSPORT TIMES-NEWS, Oct. 18, 1983.
59. See, e.g., Smith v. Bd. of Sch. Comm'rs of Mobile County, 827 F.2d 684 (11th Cir. 1987).
60. For a further discussion, see Stolzenberg, supra note 49, at 589-93.
61. According to the court, for parents who find ideas taught by school offensive, Tennessee provides two options: "The plaintiff parents can either send their children to church schools or private schools, as many of them have done, or teach them at home." Mozert, 827 F.2d at 1067.
62. See, e.g., Smith, 827 F.2d at 695 n.12.
63. For example, Mel and Norma Gabler have spent decades challenging textbooks that they view as anti-Christian, anti-family, or anti-American. See DIANE RAVITCH, THE LANGUAGE POLICE 105-07 (2003).
64. Mozert, 827 F.2d at 1060.
65. See Jeffries & Ryan, supra note 5, at 337-38.
66. Matthew 5:13-14.
67. CHRISTIAN SMITH, CHRISTIAN AMERICA? 136 (2000). An Oregon parent offered a similar rationale, arguing that "God calls us to be light and salt in the world, and I think if all Christians take their kids and put them in Christian schools, then who's gonna be over here to be salt and light to the rest of the world?" Id. at 137.
68. 2 Corinthians 6:14.
69. Mozert, 827 F.2d 1058, cert. denied, 484 U.S. 1066 (1988).
70. See Leslie Kaufman, Life Beyond God, N.Y. TIMES, Oct. 16, 1994, § 6 (Magazine), at 46 (quoting Michael Farris). Similarly, prominent Christian activist Beverly LaHaye advises parents to seek private options, for "[t]oo many children have been lovingly led to Christ at their parent's knee and then thrown to the destruction of the public school system."
71. BEVERLY LAHAYE, HOW TO DEVELOP YOUR CHILD'S TEMPERAMENT 77 (1977);
72. see also Dan Smithwick, Nine Reasons for Not Using Public Schools, NEHEMIAH INST., June 19, 2002, http://www.nehemiahinstitute.com/articles/ index.php?action=show&id=30 ("I think it is unwise (dangerous?) to send little-trained or untrained youth to perhaps the key battleground of Humanists (the public school classroom) and expect them to be effective in winning over unbelievers, adult or student.").
73. See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987) (striking down Louisiana law requiring schools to teach creation science alongside evolution); Epperson v. Arkansas, 393 U.S. 97 (1968) (striking down Arkansas law prohibiting the teaching of evolution).
74. See MELISSA M. DECKMAN, SCHOOL BOARD BATTLES 10 (2004).
75. See SALOMONE, supra note 32, at 30.
76. See James C. Carper, The Christian Day School Movement, 47 EDUC. F. 135, 139-40 (1983);
77. John W. Whitehead & John Conlan, The Establishment of the Religion of Secular Humanism and its First Amendment Implications, 10 TEX. TECH L. REV. 1, 29 (1978).
78. Jim Ryan and John Jeffries have argued convincingly that the growth of evangelical schools was driven largely by whites' desire to avoid desegregation. Jeffries & Ryan, supra note 5, at 328-35.
79. JUSTIN WATSON, THE CHRISTIAN COALITION 142 (1997) (quoting Ralph Reed).
80. Id.
81. See JONATHAN ZIMMERMAN, WHOSE AMERICA? 3, 117-18 (2002).
82. See Susan Rose, Christian Fundamentalism and Education in the United States, in FUNDAMENTALISMS AND SOCIETY 452, 469 (Martin E. Marty & R. Scott Appleby eds., 1993). For a thorough account of the Kenawha County dispute, see MARTIN, supra note 44, at 117-43. Similarly, in Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982), a group of politically conservative parents sought to keep an objectionable list of books from the school library. Books by black authors figured prominently on the banned list. Id. at 856 n.3.
83. JOE L. KINCHELOE, UNDERSTANDING THE NEW RIGHT AND ITS IMPACT ON EDUCATION 31 (1983); see also MARTIN, supra note 44, at 124 (The stated reasons are not that the authors are black; rather, "these writers were criticized for profane or negative language, for depressing content, and for exposing children to realities from which they should be shielded.").
84. Milton Friedman proposed a full-fledged voucher system that would result in public schools being replaced with a private school system supported by tax dollars. Milton Friedman, The Role of Government in Education, in ECONOMICS AND THE PUBLIC INTEREST 123, 127-30 (Robert A. Solo ed., 1955).
85. A revised version of this article appears as chapter 6 in MILTON FRIEDMAN, CAPITALISM AND FREEDOM 85 (1962).
86. See Hubert Morken, The New Common School: The Evangelical Response to Everson, in EVERSON REVISITED: RELIGION, EDUCATION, AND LAW AT THE CROSSROADS 59, 60-61 (Jo Renée Formicola & Hubert Morken eds., 1997).
87. 268 U.S. 510 (1925).
88. Id. at 535.
89. 406 U.S. 205 (1972).
90. See Morken, supra note 74, at 61.
91. See, e.g., CHARLES L. GLENN, THE AMBIGUOUS EMBRACE 17 (2000) ("[P]opular schooling is the instrument that an activist government is most tempted to employ to bring about social transformation and that, having started to use, it is most likely to use ever more deliberately and extensively.");
92. JOHN STUART MILL, ON LIBERTY 190-91 (London, Longman, Roberts & Green Co., 3d ed. 1864) (1859) ("A general State education is a mere contrivance for moulding people to be exactly like one another: and as the mould in which it casts them is that which pleases the predominant power in the government . . . in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.").
93. 478 U.S. 675 (1986).
94. Id. at 681.
95. 441 U.S. 68 (1979).
96. Id. at 76-77.
97. Michael W. McConnell, Old Liberalism, New Liberalism and People of Faith, in CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT 5, 23 (Michael W. McConnell et al. eds., 2001).
98. See A. JAMES REICHLEY, RELIGION IN AMERICAN PUBLIC LIFE 165 (1985) ("[B]anishment of religion does not represent neutrality between religion and secularism; conduct of public institutions without any acknowledgment of religion is secularism."). Michael McConnell extends this point beyond the question of religion, arguing, "Today we are more likely to see education designed to inculcate liberal progressive notions like environmentalism, feminism, safe sex, and the like, coupled with careerism and consumerism. This may seem open and multicultural - unless you happen to disagree with it." McConnell, supra note 84, at 22.
99. See STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 177-79 (1993).
100. See MILTON FRIEDMAN & ROSE FRIEDMAN, FREE TO CHOOSE 164 (1980) ("The present arrangements abridge the religious freedom of parents who do not accept the religion taught by the public schools yet are forced to pay to have their children indoctrinated with it, and to pay still more to have their children escape indoctrination."); McConnell, supra note 84, at 22 (Those who disagree are, "like the Catholics of the nineteenth century, faced with a choice between seeing [their] children indoctrinated into a belief system [they] consider to be false and damaging, and paying for a service that other citizens get for free.").
101. See STEPHEN ARONS, COMPELLING BELIEF 211 (1983);
102. Richard F. Duncan, On Liberty and Life in Babylon: A Pilgrim's Pragmatic Proposal, in CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT, supra note 84, at 354, 361; McConnell, supra note 26, at 120.
103. See HUBERT MORKEN & JO RENÉE FORMICOLA, THE POLITICS OF SCHOOL CHOICE 18 (1999).
104. See id. at 18-19.
105. For example, two federal voucher proposals had no income limits. See Equal Educational Opportunity Act of 1983, S. 1690, 98th Cong. (1983); Equity and Choice Act of 1985, H.R. 3821, 99th Cong. (1985). Two other federal proposals for tuition tax credits during the same era had limits generous enough to allow middle-class families to receive tuition assistance. A 1982 proposal would have assisted families earning up to $75,000 (more than eleven times the poverty line). See Educational Opportunity and Equity Act of 1982, S. 2673, 97th Cong. (1982). A 1983 proposal would have raised the income limit to $60,000 (more than eight times the poverty line). See Educational Opportunity and Equity Act of 1983, S. 528, 98th Cong. (1983). Today's voucher plans typically only include families with incomes two to three times the poverty line. See, e.g., D.C. School Choice Incentive Act of 2003, Pub. L. No. 108-199, 118 Stat. 126.
106. For arguments to this effect, see infra notes 297-299 and accompanying text.
107. MORKEN & FORMICOLA, supra note 89, at 48 (quoting Eric Sondermann).
108. 536 U.S. 639, 655 (2002).
109. Id. at 644. For an argument that Zelman ignored the U.S. Supreme Court's role in creating the hyper-segregated conditions that marked Cleveland and other urban districts, see Charles Lawrence, Choose Justice: Vouchers, Charters, Illusive Equality and the Illusion of Choice (June 2006) (unpublished paper, on file with author).
110. Zelman, 536 U.S. at 644.
111. Id. at 655; see also Davis v. Grover, 480 N.W.2d 460, 477 (Wis. 1992) (Ceci, J., concurring) ("The Wisconsin legislature, attuned and attentive to the . . . seemingly insurmountable problems confronting socioeconomically deprived children, has attempted to throw a life preserver to those Milwaukee children caught in the cruel riptide of a school system floundering upon the shoals of poverty, status-quo thinking, and despair.").
112. See TERRY M. MOE, SCHOOLS, VOUCHERS, AND THE AMERICAN PUBLIC 360-69 (2001).
113. This is my central argument in James Forman, Jr., The Secret History of School Choice: How Progressives Got There First, 93 GEO. L.J. 1287 (2005).
114. See MOE, supra note 98, at 217. Polls conducted in 2000 by David Bositis of the Joint Center for Political and Economic Studies provided additional nuance to the question of how African Americans viewed vouchers. According to Bositis, 57 percent of African Americans and 49 percent of the general population supported vouchers. DAVID A. BOSITIS, JOINT CTR. FOR POLITICAL & ECONOMIC STUDIES, 2000 NATIONAL OPINION POLL: POLITICS 9 (2000). Among blacks, the most supportive groups were those under the age of thirty-five (75 percent), black Republicans (69 percent), and those from households with children (74 percent). Id. Blacks over the age of fifty (44 percent) and those with no children in the household (49 percent) were the least supportive. Id.
115. See MOE, supra note 98, at 320.
116. Joseph Viteritti's fullest elaboration of this theme can be found in JOSEPH P. VITERITTI, CHOOSING EQUALITY (1999). He has since continued to pursue the argument.
117. See, e.g., Joseph P. Viteritti, Empower the Poor, BOSTON REV., Oct./Nov. 2003, at 13, 14 ("[W]hy should poor people have to send their children to schools that most middle-class people would never contemplate for their own? That is the underlying moral question of the debate.").
118. Diane Ravitch offers a compelling claim for school choice in Diane Ravitch, Somebody's Children: Educational Opportunity for All American Children, in NEW SCHOOLS FOR A NEW CENTURY: THE REDESIGN OF URBAN EDUCATION (Diane Ravitch & Joseph P. Viteritti eds., 1999).
119. JOHN E. COONS & STEPHEN D. SUGARMAN, MAKING SCHOOL CHOICE WORK FOR ALL FAMILIES 85 (1999), available at http://www.pacificresearch.org/pub/sab/educat/making_choice.
120. Id.
121. John E. Coons et al., The Pro-Voucher Left and the Pro-Equity Right, 572 ANNALS AM. ACAD. POL. & SOC. SCI. 98, 114 (2000).
122. Id. (quoting Paul Peterson).
123. Id.
124. Emily Pyle, Class Warfare, TEX. OBSERVER, May 9, 2003, at 5.
125. Id.
126. Brown v. Board of Education, 347 U.S. 483 (1954), was itself an effort to gain access to higher quality schools. Robert Carter, A Reassessment of Brown v. Board, in SHADES OF BROWN: NEW PERSPECTIVES ON SCHOOL DESEGREGATION 21, 24 (Derrick Bell ed., 1980) (arguing that quality education was "indispensable" if poor black families "were to have any chance or hope of escaping the depressing fate of their forebears").
127. See Kofi Lomotey, Independent Black Institutions: African-Centered Education Models, 61 J. NEGRO EDUC. 455, 458-60 (1992).
128. For a thoughtful discussion of the history of Afrocentric education and its impact on other forms of edinocentric schooling, see Nina K. Buchanan & Robert A. Fox, Back to the Future: Ethnocentric Charter Schools in Hawai'i, in THE EMANCIPATORY PROMISE OF CHARTER SCHOOLS: TOWARD A PROGRESSIVE POLITICS OF SCHOOL CHOICE 77, 78-81 (Eric Rofes & Lisa M. Stulberg eds., 2004).
129. See Lomotey, supra note 111, at 455-56.
130. See ZIMMERMAN, supra note 70, at 107-29.
131. Id. at 3.
132. The values rationale for vouchers had not required the same sort of empirical analysis. While a few researchers documented the extent to which the Bible and religion had been taken out of schools, see MARK G. YUDOF ET AL., EDUCATIONAL POLICY AND THE LAW 124-26 (4th ed. 2002) (citing studies), the values rationale depended mainly on the common-sense observation that many schools were teaching values that some parents found offensive.
133. JAMES S. COLEMAN ET AL., HIGH SCHOOL ACHIEVEMENT 176-78 (1982).
134. See ANDREW M. GREELEY, CATHOLIC HIGH SCHOOLS AND MINORITY STUDENTS (1982).
135. See Cindy Currence, A 'Catholic Schools Effect' Is Reaffirmed By Its Champions, Coleman and Greeley, EDUC. WK., Nov. 14, 1984, at 1;
136. Mike Wilson, Sociologist Gives Catholic Schools Highest Grade, MIAMI HERALD, June 30, 1983, at 13PB.
137. See, e.g., Susan G. Foster, Studies Dispute Coleman's Finding on Blacks in Private Schools, EDUC. WK., Sept. 8, 1982, at 8.
138. A variety of theories have been put forward to explain why Catholic schools might make the difference: (1) high expectations for all students; (2) rigorous curriculum; (3) nurturing community; (4) development of strong African American identity; and (5) clear emphasis on character development. See Janice E. Jackson, Forward to GROWING UP AFRICAN AMERICAN IN CATHOLIC SCHOOLS, at ix, x-xi (Jaqueline Jordan Irvine & Michèle Foster eds., 1996).
139. JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS (1990).
140. Id. at 217.
141. See Amy Stuart Wells, Choice in Education: Examining the Evidence on Equity, 93 TCHRS. C. REC. 137, 138 (1991).
142. See Jacques Steinberg, Voucher Programfor Inner-City Children, N.Y. TIMES, June 10, 1998, at B11.
143. See PAUL E. PETERSON ET AL., INITIAL FINDINGS FROM AN EVALUATION OF SCHOOL CHOICE PROGRAMS IN WASHINGTON, D.C. (1998) (presented to the Annual Meeting of the American Political Science Association).
144. WILLIAM G. HOWELL & PAUL E. PETERSON, THE EDUCATION GAP 145-46 (2002).
145. Id.
146. Id.
147. See, e.g., Alan B. Krueger & Pei Zhu, Another Look at the New York City School Voucher Experiment, 47 AM. BEHAV. SCIENTIST 658, 683-85 (2004) [hereinafter Krueger & Zhu, Another Look];
148. Alan B. Krueger & Pei Zhu, Inefficiency, Subsample Selection Bias, and Nonrobustness: A Response to Paul E. Peterson and William G. Howell, 47 AM. BEHAV. SCIENTIST 718, 726-27 (2004);
149. Paul E. Peterson & William G. Howell, Efficiency, Bias, and Classification Schemes: A Response to Alan B. Krueger and Pei Zhu, 47 AM. BEHAV. SCIENTIST 699, 702 (2004).
150. HOWELL & PETERSON, supra note 126, at 164-66.
151. See, e.g., Jeff Archer, Black Elementary Students May Reap Most Gains from Vouchers, EDUC. WK., Mar. 8, 2000, at 9;
152. Cheryl Wetzstein, Vouchers Raise Scores of Blacks, WASH. TIMES, May 9, 2002, at A10.
153. SALOMONE, supra note 32, at xi.
154. Id. at xi-xii.
155. Id. at xii. Arthur Levine, President of Teacher's College, reports a similar conversion. According to Levine, despite a lifetime of opposing school vouchers, "after much soul-searching, I have reluctantly concluded that a limited school voucher program is now essential for the poorest Americans attending the worst public schools." Arthur Levine, Why I'm Reluctantly Backing Vouchers, WALL STREET J., June 15, 1998, at A28.
156. For a summary of prominent liberals who became voucher supporters, see Richard D. Kahlenberg & Bernard Wasow, What Makes Schools Work?, BOSTON REV., Oct./Nov. 2003, at 6.
157. GORDON MACINNES, KIDS WHO PICK THE WRONG PARENTS AND OTHER VICTIMS OF VOUCHER SCHEMES 5 (1999).
158. Id.
159. See supra note 38 and accompanying text.
160. I am not suggesting that the "purpose" or "effect" test is settled. Lemon v. Kurtzman, 403 U.S. 602 (1971), is highly controversial. But a law's purpose and effect remain highly relevant even among some of the alternatives to Lemon. For example, Justice O'Connor's "endorsement" test ultimately asks whether the law in question has the purpose or effect of endorsing a particular religion or religion in general. Wallace v. Jaffree, 472 U.S. 38, 69-70 (1985) (O'Connor, J., concurring).
161. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 592 (1987) (rejecting Louisiana law requiring schools to teach creation science because it "embodies the religious belief that a supernatural creator was responsible for the creation of humankind"); Wallace, 472 U.S. at 57 n.43 (striking down Alabama period-of-silence statute in part because of the religious motivations of the bill's sponsor); Epperson v. Arkansas, 393 U.S. 97, 107-08 (1968) (faulting anti-evolution law because it was grounded in the "fundamentalist sectarian conviction" that evolution conflicts with the Book of Genesis).
162. Clint Bolick recounts this strategy session in Voucher Wars. BOLICK, supra note 4, at 109-10. Although I served as one of Justice O'Connor's law clerks, I did not attend this meeting.
163. 413 U.S. 455 (1973).
164. 392 U.S. 236 (1968).
165. Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947).
166. Norwood, 413 U.S. at 459-60.
167. Id. at 470.
168. For a discussion of Norwood, see Klint Alexander & Kern Alexander, Vouchers and the Privatization of American Education: Justifying Racial Resegregation from Brown to Zelman, 2004 U. ILL. L. REV. 1131, 1142-44.
169. 473 U.S. 402 (1985), overruled by Agostini v. Felton, 521 U.S. 203 (1997).
170. Id. at 431 (O'Connor, J., dissenting).
171. Id.
172. Id.
173. BOLICK, supra note 4, at 27.
174. Editorial, Blocking the Schoolhouse Door, WALL STREET J., June 27, 1990, at A1.
175. BOLICK, supra note 4, at 27.
176. See id. at 94, 176.
177. As Bolick told the New York Times, "Bill Clinton, the self-described advocate of public schools, finds that not a single public school in D.C. is adequate for his daughter . . . . And we'd like to see other parents, particularly low-income parents, have the same choice as Bill Clinton." Thomas L. Friedman, Clintons Pick Private School in Capital for Their Daughter, N.Y. TIMES, Jan. 6, 1993, at A14 (quoting Clint Bolick).
178. BOLICK, supra note 4, at 111.
179. See id. at 39, 111-12, 176.
180. Id. at 157.
181. 347 U.S. 483 (1954).
182. Brief on the Merits at 4, 49, Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (No. 00-1779).
183. Id. at 19.
184. Id.
185. Id. at 19-26.
186. Id. at 49.
187. Brief of the NAACP Legal Defense & Educational Fund, Inc. & the NAACP as Amici Curiae in Support of Respondents at 2-3, 6, 7, Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (No. 00-1751).
188. See Erica Frankenberg, Chungmei Lee & Gary Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? 30 (Jan. 2003), available at http://www.civilrightsproject.harvard.edu/ research/reseg03/AreWeLosingtheDream.pdf.
189. See, e.g., Missouri v. Jenkins, 515 U.S. 70 (1995); Freeman v. Pitts, 503 U.S. 467 (1992); Bd. of Educ. of Okla. City Pub. Sch., Indep. Sch. Dist. No. 89 v. Dowell, 498 U.S. 237 (1991); Milliken v. Bradley, 418 U.S. 717 (1974).
190. In Milliken, for example, the Court rejected a district court remedy that would have allowed mostly black children in Detroit schools to attend suburban schools. Milliken, 418 U.S. at 738-45.
191. 418 U.S. 717.
192. 515 U.S. 70.
193. Dana Milbank, Bush Urges Wide Use of School Vouchers, WASH. POST, July 2, 2002, at A1.
194. Id.
195. Rod Paige, A Win for America's Children, WASH. POST, June 28, 2002, at A29;
196. see also George F. Will, Implacable Enemies of Choice, WASH. POST, June 28, 2002, at A29 ("[With Zelman,] socially disadvantaged children had their best day in court since Brown v. Board of Education in 1954.").
197. Michael M. Uhlmann, Zelman: The Court Gets it Right, FIRST THINGS, Jan. 2003, at 9, 11.
198. Rod Paige, U.S. Sec'y of Educ., A Time for Choice: Remarks at the Heritage Foundation (Jan. 28, 2004), available at http://www.dcpswatch. com/vouchers/040128.htm.
199. Forman, supra note 99, at 1288.
200. See, e.g., Howard Simon, Disguising School Vouchers as Civil Rights Issue Should Fool No One, PALM BEACH POST, Oct. 5, 1998, at A17.
201. Brief of the NAACP, supra note 165, at 9-10. According to Ted Shaw, then LDF Associate Director-Counsel, vouchers are "not the answer for the vast majority of black students, who will remain in the public schools with no systemic reform and no systematic commitment of resources." Linda Greenhouse, Win the Debate, Not Just the Case, N.Y. TIMES, July 14, 2002, at C4 (quoting Ted Shaw).
202. See, e.g., John Tierney, Editorial, Let Your People Stay, N.Y. TIMES, Feb. 21, 2006, at A19.
203. Indeed, in a system as massive as our K-12 education system nationwide, many widely lauded reforms are small. Teach For America, a program in which college graduates from our nation's top universities go into teaching at schools serving low-income students, was widely praised when it began, despite sending only 500 teachers into six school districts. Teach For America, Our History, http://www.teachforamerica.com/about/our_history.htm (last visited Jan. 5, 2007). Even today, with roughly 4400 corps members, only 2.5 million of our nation's schoolchildren have been reached by a Teach For America teacher. Id.; THOMAS D. SNYDER & ALEXANDRA G. TAN, U.S. DEP'T OF EDUC., DIGEST OF EDUCATION STATISTICS, 2004 (2005), available at http://nces.ed.gov/programs/ digest/d04/index.asp.
204. Forman, supra note 99, at 1295-1300.
205. 358 U.S. 1 (1958).
206. For anyone who doubts this, I recommend MELBA PATTILLO BEALS, WARRIORS DON'T CRY (1994). Melba Beals's account of the ruthless violence and terror inflicted upon her and the other eight black children who desegregated Central High School is one of unequalled heroism. Today's sacrifices for better schooling, no matter how valiant, do not compare.
207. See Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 524 (1980).
208. MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS 90 (2000);
209. Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61, 65 (1988).
210. 539 U.S. 306 (2003).
211. Id. at 330-31 (citing Brief for 3M et al. as Amici Curiae at 5; Brief for General Motors Corp. as Amicus Curiae at 3-4; Brief for Julius W. Becton, Jr., et al. as Amici Curiae at 5).
212. See Krueger & Zhu, Another Look, supra note 129, at 693-95; supra text accompanying notes 125-131.
213. JAY P. GREENE, SCH. CHOICE WIS., GRADUATION RATES FOR CHOICE AND PUBLIC SCHOOL STUDENTS IN MILWAUKEE (2004). Like much of the research in this area, Jay Greene's findings suffer from the fact that his was not a random-assignment study. Id. at 5. Greene partially remedies this weakness by comparing students in the voucher program to those in selective-admission Milwaukee public schools, and finds that the students in the voucher program (who were not selectively admitted) nonetheless are more likely to graduate high school than even the students in the selective-admission public schools. Id. at 6.
214. See CLIVE R. BELFIELD, THE EVIDENCE ON EDUCATION VOUCHERS (2006); JONATHAN PLUCKER ET AL., CTR. FOR EVALUATION & EDUC. POLICY, EVALUATION OF THE CLEVELAND SCHOLARSHIP AND TUTORING PROGRAM: TECHNICAL REPORT 1998-2004 (2006) (official longitudinal study of the Cleveland Scholarship and Tutoring Program).
215. See PLUCKER ET AL., supra note 190, at 167.
216. See HENRY BRAUN ET AL., U.S. DEP'T OF EDUC., COMPARING PRIVATE SCHOOLS AND PUBLIC SCHOOLS USING HIERARCHICAL LINEAR MODELING (2006);
217. see also CHRISTOPHER LUBIENSKI & SARAH THEULE LUBIENSKI, CHARTER, PRIVATE, PUBLIC SCHOOLS AND ACADEMIC ACHIEVEMENT: NEW EVIDENCE FROM NAEP MATHEMATICS DATA 3 (2006) (finding, after controlling for student characteristics, that public school students did as well as or better than private school students on the mathematics portion of the National Assessment of Educational Progress (NAEP)).
218. See PATRICK WOLF ET AL., U.S. DEP'T OF EDUC., EVALUATION OF THE DC OPPORTUNITY SCHOLARSHIP PROGRAM: SECOND YEAR REPORT ON PARTICIPATION (2006) (official longitudinal study of the District of Columbia Opportunity Scholarship Program).
219. See Bush v. Holmes, 919 So. 2d 392,408-09 (Fla. 2006).
220. Many opponents of charter schools raised these same concerns, and I have suggested elsewhere that these fears have not been borne out. See James Forman, Jr., Do Charter Schools Threaten Public Education? Emerging Evidence from Fifteen Years of a Quasi-Market for Schooling, 2007 U. ILL. L. REV. (forthcoming May 2007).
221. Caroline M. Hoxby, School Choice and School Competition: Evidence from the United States, 10 SWEDISH ECON. POL'Y REV. 9 (2003).
222. Jay P. Greene & Marcus A. Winters, When Schools Compete: The Effects of Vouchers on Florida Public School Achievement (Ctr. for Civic Innovation, Educ. Working Paper No. 2,2003), available at http://www.manhattan-institute.org/pdf/ewp_02.pdf.
223. See David N. Figlio & Cecilia Elena Rouse, Do Accountability and Voucher Threats Improve Low Performing Schools?, 90 J. PUB. ECON. 239, 253-54 (2006).
224. See Forman, supra note 99, at 1314-19.
225. See James E. Ryan & Michael Heise, The Political Economy of School Choice, 111 YALE L.J. 2043, 2045 (2002).
226. Brief on the Merits, supra note 160, at 37.
227. BOLICK, supra note 4, at 92.
228. See RICHARD D. KAHLENBERG, ALL TOGETHER NOW 228 (2001).
229. See Forman, supra note 99, at 1314-19.
230. Faith & Reason Inst., Are Vouchers Good For Catholic Education?, RIGHT REASONS, May 19, 2000, http://www.frinstitute.org/rrvoucher.html (quoting Douglas Dewey).
231. CARTER, supra note 86, at 152.
232. BOLICK, supra note 4, at 212. An early proponent of this approach was Tyll Van Geel, who argued that those interested in enhancing the weight of parental preferences might think about what might be called the devious strategy of labeling one's reform one thing while really attempting to achieve something else. For example, one might call the reform one is seeking a reform to improve the education of the disadvantaged, when the larger purpose is to establish the principle that parents should have a voice in controlling the education to which their children are exposed. . . . [T]his kind of feint or indirection may be necessary to obtain what one wants from the courts. Tyll Van Geel, Parental Preferences and the Politics of Spending Public Education Funds, 79 TCHRS. C. REC. 339, 363 (1978).
233. See supra notes 103-104 and accompanying text.
234. According to President Bush's education advisor Alexander "Sandy" Kress, real accountability consists of "high standards, annual testing, and . . . real consequences that flow from the measurement." Siobhan Gorman, Step One: Grab the Center, NAT'L J., Jan. 27, 2001, at 286, 287 (quoting Alexander Kress).
235. See Martin R. West & Paul E. Peterson, The Politics and Practice of Accountability, in NO CHILD LEFT BEHIND? THE POLITICS AND PRACTICE OF SCHOOL ACCOUNTABILITY 1, 5-8 (Paul E. Peterson & Martin R. West eds., 2003).
236. NAT'L COMM'N ON EXCELLENCE IN EDUC., A NATION AT RISK: THE IMPERATIVE FOR EDUCATION REFORM (1983). A Nation at Risk warned of a "rising tide of mediocrity" that weakened national security in the face of the Soviet threat. Id. at 5. The report argued that students needed to face more challenging assignments and a longer school year, that teacher quality needed to increase through increased pay and higher certification standards, and that parents needed to be more involved in their children's education and hold them to higher standards. Id. at 29-31, 33.
237. On the role of business leaders in the accountability movement, see Frederick M. Hess, Reform, Resistance, . . . Retreat? The Predictable Politics of Accountability in Virginia, 2002 BROOKINGS PAPERS ON EDUC. POL'Y, 69, 117 n.55;
238. Paul T. Hill & Robin J. Lake, Standards and Accountability in Washington State, 2002 BROOKINGS PAPERS ON EDUC. POL'Y 199, 199.
239. DAVID W. GRISSMER ET AL., RAND CORP., IMPROVING STUDENT ACHIEVEMENT: WHAT NAEP STATE TEST SCORES TELL US 55, 99-100 (2000).
240. For other evidence that state accountability systems improve student achievement, see Eric A. Hanushek & Margaret E. Raymond, Lessons About the Design of State Accountability Systems, in NO CHILD LEFT BEHIND?, supra note 210, at 127, 127. Subsequent to the passage of No Child Left Behind (NCLB), evidence came to light casting doubt on the validity of Texas's educational success.
241. See Linda Darling-Hammond, From "Separate but Equal" to "No Child Left Behind": The Collision of New Standards and Old Inequalities, in MANY CHILDREN LEFT BEHIND 3, 21-22 (Deborah Meier & George Wood eds., 2004).
242. David S. Broder, Long Road to Reform; Negotiators Forge Education Legislation, WASH. POST, Dec. 17, 2001, at A1.
243. 20 U.S.C. § 6311 (Supp. 2002).
244. Id. § 6316.
245. President George W. Bush, Remarks Prior to a Meeting With Congressional Education Leaders and an Exchange With Reporters (Jan. 23, 2001), available at 37 WKLY. COMPILATION PRESIDENTIAL DOCUMENTS 216, 217 (2001).
246. John Boehner, Chairman, H. Comm. on Educ. & the Workforce, Fact Sheet: H.R. 1 Conference Report Highlights: Accountability for Student Achievement (Dec. 10, 2001), available at http://www.mnteachered.org/ resources/ShorttReportFACTSHEET.doc.
247. Margaret Spellings, Our High Schools Need Help . . . , WASH. POST, Apr. 2, 2005, at A21. Former Education Secretary Rod Paige made the same point using a sports analogy saying, "[I]f you want to win the football game, you have to first keep score."
248. Rod Paige, U.S. Sec'y of Educ, Remarks Before the American Council on Education (Feb. 20, 2001), available at http://www.ed.gov/news/speeches/ 2001/ 02/010220.html.
249. President George W. Bush, Remarks to the National Catholic Educational Association (Jan. 9, 2004), available at http://www.whitehouse.gov/news/ releases/2004/01/20040109-10.html.
250. See Terry M. Moe, Politics, Control, and the Future of School Accountability, in NO CHILD LEFT BEHIND?, supra note 210, at 80, 95.
251. See FREDERICK M. HESS & MICHAEL J. PETRILLI, NO CHILD LEFT BEHIND 17 (2006).
252. See Barbara Miner, Seed Money for Conservatives, RETHINKING SCHOOLS, Summer 2004, at 9, available at http://www.tethinkingschools.org/special_reports/voucher_report/v_seed184.shtml.
253. See id.
254. Bolick notes in Voucher Wars that "[i]n Florida, for instance, many evangelical Christian schools have chosen not to participate in the opportunity scholarship program, while many Catholic schools have chosen to do so." BOLICK, supra note 4, at 210; see also Jeff Brumley, Religious Schools See Little Impact Now, FLA. TIMES-UNION, Jan. 6, 2006, at A7 ("Hardly anybody uses [vouchers] in the Christian school world because of the strings attached." (quoting Dennis Robinson, president of the Florida League of Christian Schools)).
255. See Erik W. Robelen, Florida Lawmakers Float New Voucher Plans, EDUC. WK., Apr. 5, 2006, at 25;
256. Bush Signs Voucher Oversight Bill, PALM BEACH POST, June 7, 2006, at 12A.
257. Erik W. Robelen, Fla., Wisconsin Tying More Strings to Vouchers, EDUC. WK., May 17, 2006, at 18.
258. See Alan Richard, Deal May Pave Way for Milwaukee Voucher Expansion, EDUC. WK., Mar. 1, 2006, at 18; Robelen, supra note 227.
259. See, e.g., Steve Schultze, Doyle Ready to Deal on School Choice, MILWAUKEE J. SENTINEL, July 21, 2004, at B1.
260. Terry Moe indicates his support for vouchers in MOE, supra note 98, at 10.
261. The treatment of Moe's findings by the pro-voucher movement is instructive of the challenges the movement faces regarding the question of government regulation. Moe's finding that Americans are most likely to support vouchers targeted at the disadvantaged has been endorsed by leaders such as Bolick. BOLICK, supra note 4, at 212. But the voucher movement has not given similar prominence to Moe's findings that Americans support regulation of private schools in a voucher program.
262. MOE, supra note 98, at 298-301.
263. The great majority of respondents say that they "strongly agree" with each of these statements. Id. at 299.
264. Id. Moe's findings are corroborated by a Phi Delta Kappa survey in which 77 percent of people said yes to the following question: "Do you think private or church-related schools that accept government tuition payments should be accountable to the state in the way public schools are accountable?" Lowell C. Rose & Alec M. Gallup, 32nd Annual Phi Delta Kappa/Gallup Poll of the Public's Attitudes Toward the Public Schools, 82 PHI DELTA KAPPAN 41 (2000).
265. MOE, supra note 98, at 302.
266. Id. at 302, 304.
267. Id.
268. JOHN E. COONS & STEPHEN D. SUGARMAN, SCHOLARSHIPS FOR CHILDREN 9-12 (1992).
269. Id. at 32.
270. COONS & SUGARMAN, supra note 103, at 54-56.
271. Id. at 58-60.
272. DEBRA HARE FITZPATRICK & IRENE M. BERMAN, PROVIDING QUALITY CHOICE OPTIONS IN EDUCATION (2005).
273. Id. at 21.
274. Id. at 22.
275. Bettina Krause, Church Leaders Urge Caution on School Vouchers, ADVENTIST NEWS NETWORK, July 2, 2002, http://news.adventist.org/data/2002/06/1025625143/index.html.en.
276. Id.
277. Thomas Washburne, Vouchers: Constitutional But Dangerous, HOME SCH. LEGAL DEF. ASS'N, July 2, 2002, http://www.hslda.org/docs/news/hslda/200207020.asp.
278. Id. ("By their very nature, vouchers are susceptible to government control and strings.").
279. See JOHN C. GREEN, THE AMERICAN RELIGIOUS LANDSCAPE AND POLITICAL ATTITUDES: A BASELINE FOR 2004, at 48 (2004).
280. See id.
281. See John C. Green, Religion and Politics in the 1990s: Confrontations and Coalitions, in RELIGION AND AMERICAN POLITICS: THE 2000 ELECTION IN CONTEXT 19, 25 (Mark Silk ed., 2000). For purposes of this study, traditionalists were defined as those evangelicals who were highly observant and evidenced strong acceptance of the Bible's authority. See id. at 21.
282. Bob Simonds, Rescue 2010 Strategy, http://www.nace-cee.org/ceestrategy. htm (last visited Jan. 5, 2007) ("Christians must exit the public schools as soon as it is feasible and possible. . . . America must not just get vouchers and tax breaks for parents in private schools . . . .") (emphasis removed);
283. see also Robert Stacy McCain, Christians Urged to Abandon Public Schools as Irreparable, WASH. TIMES, Aug. 26, 1999, at A2.
284. Alliance for the Separation of School and State, http://www. schoolandstate.org/home.htm (last visited Jan. 5, 2007);
285. see also Brandon Dutcher, Emerging "Voucher Left" Could Alter School-Choice Debate, OKLA. COUNCIL FOR PUB. AFF. PERSPECTIVE, Nov. 1999, http://www.ocpathink.org/ ViewPerspectiveEdition.asp?ID=74 ("[V]ouchers will come with strings attached which will emasculate private schools.");
286. Marshall Fritz, Can You Say "en·ti'·tle· ment?", EDUC. LIBERATOR, July 1996, available at http://www.sepschool.org/edlib/v2n6/entitle.php ("[T]ax-funded vouchers are a bad idea.");
287. Sharlene Holt, Tuition Voucher Plan Is Wrong Path, PATRIOT-NEWS (Harrisburg, Pa.), Oct. 2, 1995, at A7.
288. Exodus Mandate, http://www.exodusmandate.org (last visited Jan. 5, 2007);
289. see also Richard Vara, Encouraging An Exodus, HOUSTON CHRON., June 18, 2005, Religion, at 1.
290. Kingdom Education, http://www.kingdomeducation.com (last visited Jan. 5, 2007).
291. Southern Baptist Church and Home Education Association, http://www.sbchea.com (last visited Jan. 5, 2007).
292. Southern Baptist Association of Christian Schools, http://www.sbacs.org (last visited Jan. 5, 2007);
293. see also Donna Callea, Resolution Urges Southern Baptists to Abandon Public Education, DAYTONA BEACH NEWS-J., May 27, 2004, at A1.
294. GetTheKidsOut.org, http://getthekidsout.org/Introduction.php (last visited Jan. 5, 2007).
295. See Tom Strode, SBC Lifts Disney Boycott, Urges Parental Diligence in Education, BAPTIST PRESS NEWS, June 22, 2005, http://bpnem.net/printerfriendry.asp?ID=21053;
296. Greg Warner, Conventions Vocal About Gay Marriage, Cautious About Public Education, ASSOCIATED BAPTIST PRESS NEWS, Nov. 24, 2004, http://www.abpnews.com/134.article.
297. See William J. Reese, Soldiers for Christ in the Army of God: The Christian School Movement in America, 35 EDUC. THEORY 175, 181 (1985).
298. See PAUL F. PARSONS, INSIDE AMERICA'S CHRISTIAN SCHOOLS, at xv (1987).
299. ACSI Position Statement Concerning Government Funding of Christian Schools (July 2005), http://www.acsi.org/webfiles/webitems/attachments/003857_2. %20ACSI%27s%20Position%20on%20 Tax%20Credits%20and%20Vouchers.doc
300. LANA MURASKIN & STEPHANIE STULLICH, U.S. DEP'T OF EDUC., BARRIERS, BENEFITS, AND COSTS OF USING PRIVATE SCHOOLS TO ALLEVIATE OVERCROWDING IN PUBLIC SCHOOLS 69 (1998).
301. Spellings, supra note 219, at A21.
302. THE FUNDAMENTALIST PHENOMENON: THE RESURGENCE OF CONSERVATIVE CHRISTIANITY 206 (Jerry Falwell, Ed Dobson & Ed Hindson eds., 1981) ("The most important function performed by the family is the rearing and character formation of children, a function it was uniquely created to perform and for which no remotely adequate substitute has been found. The family is the best and most efficient 'department of health, education, and welfare.'").
303. Vail, supra note 15, at 30 (quoting Ralph Reed).
304. Id. at 31 (quoting Bob Dole). Similarly, Jennifer Marshall and Eric Unsworth complained that the Department of Education "has elbowed its way into places it does not belong, not the least of which are local schools and family life." Jennifer A. Marshall & Eric Unsworth, Family Research Council, Freeing America's Schools: The Case Against the U.S. Department of Education, FAM. POL'Y, Apr. 1995, at 1, 3. They concluded, "It is time to disestablish the U.S. Education Department and end the federal intrusion into America's schools." Id. at 7.
305. See PARSONS, supra note 261, at 140-54; see also ALAN PESHKIN, GOD'S CHOICE 5-6, 34 (1986).
306. See Brief of the General Conference of Seventh-Day Adventists et al. Amici Curiae at 18, Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947) (No. 52).
307. See PESHKIN, supra note 268, at 33.
308. Reese, supra note 260, at 182.
309. Id.; see also MELINDA BOLLAR WAGNER, GOD'S SCHOOLS 36 (1990) (quoting Christian handbook stating, "Contrary to government rhetoric, accreditation does not mean quality, it means control.").
310. Faith & Reason Inst., supra note 205; see also PARSONS, supra note 261, at 56 (quoting school handbook stating, "Living Word Christian Schools is not interested in using textbooks adopted or approved by the state. Many of those texts are developed by secular authors who reject fundamental Christian principles and therefore are satutated with humanistic values.").
311. PARSONS, supra note 261, at 148.
312. Simonds, supra note 252.
313. Id.
314. Angela Valenzuela, Accountability and the Privatization Agenda, in LEAVING CHILDREN BEHIND: HOW "TEXAS-STYLE" ACCOUNTABILITY FAILS LATINO YOUTH 263, 282 (Angela Valenzuela ed., 2005).
315. Bush, supra note 220.
316. George Wood, A View from the Field: NCLB's Effects on Classrooms and Schools, in MANY CHILDREN LEFT BEHIND, supra note 213, at 33, 38-45.
317. STEPHEN L. CARTER, GOD'S NAME IN VAIN 36 (2000).
318. 427 U.S. 160 (1976).
319. 556 F.2d 310 (5th Cir. 1977) (en banc) (holding that racially discriminatory admissions policies of a religious school violate 42 U.S.C. § 1981 (2000)).
320. See, e.g., Ralph Reed, Jr., Casting a Wider Net, POL'Y REV., Summer 1993, at 31, 34.
321. MARTIN, supra note 44, at 173 (quoting Paul Weyrich).
322. Bob Jones Univ. v. United States, 461 U.S. 574, 580-81 (1983).
323. See MARTIN, supra note 44, at 169.
324. Bob Jones Univ., 461 U.S. 574.
325. See supra text accompanying notes 273-279.
326. See STEPHEN V. MONSMA, WHEN SACRED AND SECULAR MIX 90 (1996).
327. See GLENN, supra note 79, at 50.
328. ROBERT WHELAN, THE CORROSION OF CHARITY 98 (1996).
329. Id.
330. Faith & Reason Inst., supra note 205.
331. Id.; see also GLENN, supra note 79, at 9 ("Government support of choice among educational and social programs could come with so many strings attached that they would no longer offer real alternatives, function as mediating structures, or promote a coherent sense of moral obligation."); Peter L. Berger & Richard John Neuhaus, Mediating Structures and the Dilemmas of the Welfare State, in TO EMPOWER PEOPLE: FROM STATE TO CIVIL SOCIETY 157, 163 (Michael Novak ed., 2d ed. 1996) (Government-supported religious institutions "might be 'co-opted' by the government in a too eager embrace that would destroy the very distinctiveness of their function.").
332. 147 CONG. REC. 2590 (2001) (statement of Rep. Roemer).
333. Barbara Miner, Sooner or Later, Voucher Programs Will Face Scrutiny, NAT'L CATH. REP., Mar. 24, 2000, at 32.
334. 147 CONG. REC. 2590, 2591 (statement of Rep. Armey).
335. THOMAS C. DAWSON & ERIC A. HELLAND, HELPING HAND, at vi; (2001); see also Davis v. Grover, 480 N.W.2d 460, 476 (Wis. 1992) ("[P]arental choice preserves accountability for the best interests of the children."); Valenzuela, supra note 277, at 263 (quoting a Texas legislator making a similar argument on behalf of a proposed voucher plan, "Let consumer choice concepts rule. That's a form of regulation. It's called the market.").
336. DAWSON & HELLAND, supra note 298.
337. See Chester E. Finn, Jr., Sound and Unsound Options for Reform, ACADEMIC QUESTIONS, Winter 2004-05, at 79, 85-86.
338. EMILY VAN DUNK & ANNELIESE M. DICKMAN, SCHOOL CHOICE AND THE QUESTION OF ACCOUNTABILITY: THE MILWAUKEE EXPERIENCE 142-46 (2003).
339. See supra text accompanying notes 115-131.
340. For a summary of various criticisms of NCLB, see HESS & PETRILLI, supra note 222, at 4-6, 23-25, 124-26; see also Note, No Child Left Behind and the Political Safeguards of Federalism, 119 HARV. L. REV. 885, 885 (2006).
341. See, e.g., Nel Noddings, Rethinking a Bad Law, EDUC. WK., Feb. 23, 2005, at 38.
342. See, e.g., Lawrence A. Uzzell, No Child Left Behind: The Dangers of Centralized Education Policy, POL'Y ANALYSIS, May 31, 2005, at 1, available at http://www.cato.org/pubs/pas/pa544.pdf.
343. David J. Hoff, Lawsuit Seeks Vouchers for N.J. Students, EDUC. WK., July 26, 2006, at 22.
344. This litigation strategy is modeled after the numerous lawsuits that school-funding advocates have filed arguing that state constitutions require additional funding for poor districts. For discussions of the current state of school-finance litigation, see John Dayton & Anne Dupre, School Funding Litigation: Who's Winning the War?, 57 VAND. L. REV. 2351 (2004);
345. James E. Ryan & Thomas Saunders, Foreword to Symposium on School Finance Litigation: Emerging Trends or New Dead Ends?, 22 YALE L. & POL'Y REV. 463 (2004).
346. See, e.g., Owens v. Colo. Cong. of Parents, Teachers & Students, 92 P.3d 933 (Colo. 2004); Bush v. Holmes, 919 So. 2d 392 (Fla. 2006).
347. See MACINNES, supra note 135, at 10.
348. See MORKEN & FORMICOLA, supra note 89, at 57-58, 183-84.
349. See supra text accompanying notes 232-237.
350. See, e.g., DC School Choice Incentive Act of 2003, Pub. L. No. 108-199, 118 Stat. 126; WIS. STAT. § 119.23(3)(a) (2005).
351. See MORKEN & FORMICOLA, supra note 89, at 205-07.
352. See supra text accompanying notes 125-128.
353. See supra text accompanying note 131.
354. See Ryan & Heise, supra note 200, at 2063.
355. Sarah Wildman, Credit is Due, NEW REPUBLIC, Feb. 26, 2001, at 15, 15 (quoting President George W. Bush).
356. Id.
357. See Bell, supra note 184, at 523 ("The interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites."); Robert Kuttner, Agreeing to Disagree: Robert Kuttner Speaks with Milton Friedman, AM. PROSPECT, Jan. 5, 2006, http://www.prospect.org/ zweb/kuttner (according to Friedman, "A program for the poor would be a poor program.").