Reprinted from School Choice Ohio
Today is the 10-year anniversary of Zelman v. Simmons-Harris, the U.S. Supreme Court decision that affirmed the constitutionality of school vouchers. Our colleague, Pat Wolf, recalls watching the oral debates.
(Guest Post by Patrick J. Wolf)
The Zelman court case provided several indelible memories for me. At the time I was a public policy professor at Georgetown University who recently had completed a collaborative study of privately-funded K-12 scholarship programs in New York City, Dayton, Ohio, and Washington, DC. Would the modestly positive test score results we uncovered in our study lead to more experiments with publicly-funded school voucher programs? Not if the Supreme Court ruled such programs unconstitutional.
I was fortunate to land tickets to attend the oral arguments along with two of my research colleagues, Paul Peterson of Harvard and William Howell then of the University of Wisconsin and now of the University of Chicago. We sat in the center, about five rows from the back.
Although the seating area filled up quickly, two prime seats about six rows ahead of us, on the cross-aisle, remained unclaimed until the last minute. As the doors were being closed, former Wisconsin Governor Tommy Thompson, then Secretary of Health and Human Services, raced down the aisle, followed (not quite as quickly) by Senator Ted Kennedy. That set of strange bedfellows claimed those last two seats. Throughout the proceedings, whenever a Justice made a comment apparently favorable to the Cleveland voucher program, Tommy Thompson perked up in his chair while Ted Kennedy sort of slouched. Whenever a Justice spoke critically of the program, it was Kennedy who took notice and Thompson who turned away. Thus, these two political giants served as a rough barometer of how the arguments were going.
Three specific points in the oral arguments left me with vivid memories. I haven’t verified the quotes below with the actual transcript of the oral arguments, so please consider them to be rough paraphrases of what was actually said. Robert Chanin, general counsel for the National Education Association, was one of the respondent lawyers on the case. Chanin got into a heated exchange with Chief Justice Rehnquist, at one point rudely interrupting him. Rehnquist bellowed, “Are you talking over me, Mr. Chanin?!” Chanin replied, “No, of course not Mr. Chief Justice.” I leaned over to William and whispered, “This guy is helping us.”
Towards the end of Chanin’s 30 minutes before the court, we researchers briefly felt a part of the discussion. Justice Scalia asked Chanin, “Isn’t it relevant that researchers have determined that students learn more when they use school vouchers?” Chanin replied, “Who claims that?” Scalia responded, “Oh I know of some social scientists who do.”
Finally, the most amazing point in the arguments was an exchange between Justice Breyer and Ohio Assistant Attorney General Judith French. Breyer asked, “Isn’t it necessary, under our Constitution, that parents be free from compulsion to send their students to religious schools?” French responded, “Yes, they cannot be compelled to enroll their students in religious schools. That must be their choice.” Breyer then exclaimed, “Well the Catholic schools in Cleveland are undoubtedly much more effective than the public schools there, so any reasonable parent would feel compelled to send their child to a Catholic school.” I turned to William and whispered, “What the hell? School vouchers are unconstitutional because the private schools in the program are so much better than the public schools? That’s his argument?”
Traces of Justice Breyer’s bizarre locution remain in his hysterical dissent in the Zelman case. Somehow if a specific choice of action is likely to produce a better outcome for the chooser, the choice is thereby coerced and not truly free. I guess my marriage was coerced, since entering into it clearly made my life better. According to Justice Breyer, the only free choices we exercise as human beings are the bad ones! Ah, the brilliant arguments of our great legal minds.
Breyer’s comments would tempt me to conclude that he does not think there really is any such thing as human freedom, if they did not much more strongly tempt (compel?) me to conclude that he does not think, period.
Justice Breyer: “If she weighs the same as a duck, then she floats on water. And if she floats on water…”
Counselor Chanin (talking over him): “She’s a witch!”
Justice Breyer: “Precisely!”
Crowd: “Burn her!”