Supreme Court school voucher ruling threatens American unity and public education

The Supreme Court’s decision in Espinoza v. Montana Department of Revenue could drive a value shift far more important and troubling than its narrow practical effect. The ruling demands that Montana allow private religious schools to participate in its school voucher program. But for most states, the decision is currently irrelevant. About half of the states do not fund private school tuition. Many of those that do already fund private religious education. Espinoza’s primary impact is to hand an enormous symbolic victory to those with a goal beyond religious education — a goal of shrinking public education and replacing it with government-funded private school choice.

Public schools serve the overwhelming majority of the nation’s children. At one end of the spectrum, Utah’s public schools serve 93 percent of the state’s children. At the other, Louisiana and the District of Columbia only serve 80 percent. But those numbers are rapidly changing. 

Public schools bring us together

In 2013, Indiana passed what was the largest voucher program in history. Shortly thereafter, other states proposed and passed even larger programs. Today, states fund three times as many private school students as they did in 2007 — with no signs of letting up. 

Florida, which funds close to $1 billion a year on private school tuition, passed legislation last week to double the size of its voucher program. 

Behind the numbers is an agenda that contests long-held American values. First is the attack on the public space. Public schools, advocates argue, are tools of student indoctrination and control. Even worse, some argue public schools are a central pillar of the modern welfare state that extracts excessive taxes from the wealthy. 

The second problem is what vouchers validate. They bless a retreat into isolated political, religious, socioeconomic, and racial corners. Private schools enroll a predominantly white, wealthy, and Christian student population. In most states, private schools enroll students whose families are 50% to 90% richer than their public school counterparts. Private schools also enroll only half as many students of color. And 78% of these private schools are religious.

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Voucher programs do little to challenge these trends. Less than one in three voucher programs protects students from religious, disability, gender, or sexual orientation discrimination. Only half protect students from race discrimination. 

To be sure, public schools suffer their own failings, but the law expects better of them, prohibiting these forms of discrimination and more. Public schools are the one institution designed to bring us together, making one out of many. As my forthcoming book "Schoolhouse Burning: Public Education and the Assault on American Democracy" details, public schools have been a central component of the American promise to transform government from one dominated by elite white males to one shared by all. 

Before the U.S. Constitution was even drafted, our founding fathers were calling for public education to ensure that our radical new form of government — one that gave power to the common man — would not self-implode. John Adams, for instance, called for publicly funded public schools that would educate “every rank and class of people, down to the lowest and the poorest,” something so grand “that [it] never yet has been practiced in any age or nation.” He even put that promise in the Massachusetts Constitution — a forerunner to the national one.

Correcting a flawed democracy

Following the Civil War, public education helped further correct our flawed democracy.  Congress forced Confederate states to rewrite their constitutions and guarantee public education “to all.” This meant that poor whites and former slaves would receive an education where previously there had been none. After the war, no state would ever again enter the Union without guaranteeing public education in its constitution. 

During the civil rights movement, democracy’s expansion again hinged on our public schools. The NAACP carefully chose them as the starting point for ending formal discrimination and building a more inclusive society. Brown v. Board of Education ultimately declared public education to be “the most important function of state and local governments,” crucially important “our democratic society,” and “the very foundation of good citizenship [and our shared] . . . cultural values.”

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Recognizing as much, opponents of democracy have also misused and mistreated public schools toward their own ends. After Reconstruction, whites changed state constitutions and laws to underfund and segregate them. Education changes, in conjunction with literacy tests for voting, were designed to disenfranchise blacks and relegate them to second class citizenship. During desegregation, whites tried to entrench the status quo. Virginia, for instance, tried to block local districts for reassigning students to integrated schools and then funded private school vouchers so that counties could close their public schools entirely. 

My research shows privatization today ironically growing in those places with the most diverse student populations — and effectively non-existent in predominantly white states and regions. Yet, to be clear, today’s vouchers don’t have to be consciously racist or anti-democratic to be problematic. They exist against a historical backdrop that is larger than any narrow objectives they might claim. Even the mildest motivated voucher program sends the wrong message, telling individuals that there is merit in retreating to corners of their own choice.

 With racial unrest in the streets, competing narratives on the news, and advantage seeking behavior in the voting process, the last thing we need to do is retreat from the singular institution that attempts to bind our nation together.  Espinoza, then, should not be read as a caution light, not a green one.

Derek W. Black is the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina and author of "Schoolhouse Burning: Public Education and the Assault on American Democracy," coming Sept. 22. Follow him on Twitter: @DerekWBlack