In November, citizens in many states will not only elect
representatives, but also decide important policy issues. Politically
driven activist judges, of course, see this exercise in democracy as an
opportunity for them to strike down, twist, or morph what the people
have done into what the judges want it to be. The school voucher
proposal on the Michigan ballot aims at both establishing sound policy
and protecting it from judicial activism.

Vouchers are good education policy. Using a research plan
eliminating the problems in earlier studies, Harvard professor Paul
Peterson found that using vouchers to switch from public to private
schools improved academic test scores, particularly among black
students. The Washington Post quoted University of Wisconsin education
policy expert William Clune calling these results “impressive and likely
to be extremely important.” Harvard professor Caroline Hoxby had
earlier found that using vouchers to find a better education improved
test scores, the probability of college education, and future income.

Nearly two-thirds of Florida’s public school teachers say vouchers
encourage public education reform. The Wisconsin state auditor noted
research showing that “the (Milwaukee voucher) program has actually
improved Milwaukee Public Schools’ fiscal condition.” In 1998, the
Buckeye Institute similarly found that educational competition between
public and private schools contributes to better public school
performance. And a Heritage Foundation analysis outlined how “even the
limited parental choice made possible by charter schools is providing
many Michigan school districts with the needed incentives to improve.”

Voucher programs overwhelmingly benefit poor and minority children.
The average family income of voucher program students in several cities
including Washington, D.C., and New York is less than $16,000. The
Pacific Research Institute has noted that schools participating in the
Milwaukee voucher program had a higher percentage of black students than
the city’s public schools. According to the Center for Education
Reform, minorities outnumber whites among students participating in the
Milwaukee and Cleveland voucher programs by more than three-to-one.

Little wonder, then, that the Portrait of America poll by Rasmussen
Research showed that nearly 60 percent of public school parents favor
vouchers and more than 40 percent actually say that private schools are
best for their children. Even prominent liberals such as former Clinton
administration labor secretary Robert Reich support a voucher approach.

As with so many good ideas, though, what legislatures give judges
often take away. The enemies of parental choice and educational freedom
lost in the state houses of Wisconsin, Ohio, and Florida and — as is
the American way — went instead to the courthouse. The latter two are
still in litigation, though a state appeals court upheld the Florida
program on Tuesday. They argue that allowing parents to choose where to
spend voucher dollars is unconstitutional if parents may spend those
dollars at a religious school. The Michigan voucher proposal, however,
not only seeks to establish good education policy but to eliminate a
potential roadblock to actually implementing that policy.

On the policy side, Proposal 1 on the Michigan ballot is actually
fairly modest, targeted not at parents generally but at parents in
districts with a graduation rate below two-thirds. They could use
scholarships worth approximately half of what the state had spent on
their children’s failing public education for tuition in a better
private school. Only about 30 of the state’s 557 school districts
currently fall in this poor category.

While obviously providing a path to better education, Proposal 1 also
protects public school funding. Mind you, the mantra that vouchers
“take money away” from public schools has never been true. Just do the
math. If half the money spent on a public school child goes with that
child to a private school, half the money and no child remains behind in
the public school. Spending per student actually rises. But Proposal 1
goes even further by guaranteeing that per student funding will

On the legal side, Proposal 1 is not simply legislation — as were
the voucher plans in Milwaukee, Cleveland, and Florida — that would be
subject to litigation on constitutional grounds. It is instead an
amendment to the state constitution that eliminates a potent litigation
weapon. The Michigan constitution contains draconian language, more
restrictive than in any state charter, prohibiting use of a “tuition
voucher … or … public monies or property … to support the
attendance of any student … at any … nonpublic school.” Amending
this provision is necessary to give parents any assistance, any freedom
at all, to send their children even to a secular private school. And it
is necessary to foreclose litigation based on the state constitution.

As sure as death and taxes, of course, is the possibility that the
ACLU, Michigan’s powerful teacher unions, or other left-wing groups may
challenge this voucher plan as an “establishment of religion” violating
the First Amendment to the U.S. Constitution. It does no such thing, at
least if you apply the First Amendment America’s founders gave us. The
various versions of the First Amendment created by activist judges over
the years, well, that litigation is a little like playing constitutional
dodgeball. But by amending the state constitution, Proposal 1 wisely
eliminates the most immediate, and most potent, weapon for liberal
lawyers and judges to pull the rug out from under Michigan families.

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