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THE DEVIL IS IN THE DETAILS: O R, WHY I
HAVEN'T YET LEARNED TO STO P
WO RRYING AND
LO VE VO UCHERS*
DENISE C. MORGAN**
For all that has been said about sch ool vouchers1 in recent
years both in their favor and in opposition to them I am still
dissatisfied with the debate. Although most vouch er proponen ts
claim that urban children of color will be the primary beneficiaries
of vouch er programs, an d man y voucher oppon ents argue that
those same children will suffer the most as a result of the implemen tation of voucher programs, th e dialogue on th is issue between
Black and Latino parents and academics of color is surprisingly
muted.2
* With apologies to Stan ley Kubrick.
** Professor, New York Law School; B.A., Yale College, 1986; J.D., Yale Law
Sch ool 1990. Th an ks to Eric Wold, Ivan Aubergon, Joh n Farago, Anth on y
Fletch er, Tanina Rostain an d Peter Sch uck for arguin g with me about th e details;
an d to Matth ew Smalls, NYLS ' 04 an d Ch loe Murph y, NYLS ' 05, for very h elpful
research assistan ce.
1. By school vouch ers I mean programs th at use state reven ues to sen d ch ildren to an y public, private, or paroch ial sch ool th at will accept th em. I use th e
term sch ool vouch ers instead of sch ool choice because vouch ers are n ot necessary for studen ts to be able to ch oose amon g a variety of education al option s in cludin g public magn et sch ools, ch arter sch ools an d public sch ools in oth er sch ool
districts.
2. But see Hugh B. Price, The True Value of School Vouchers, T H E BLACK WO RLD
T O DAY ( July 10, 2002) , at h ttp:/ / ath en a.tbwt.com/ con ten t/ search .asp?id=1155
( opposin g vouch ers) ; Earl Ofari Hutch in son , Supreme Court School Voucher Decision
Uncovers Deep Schism Among Blacks, T H E H UTCH INSO N REPO RT ( July 1, 2002) , at
h ttp:/ / www.th eh utch inson report.com/ 070102feature.h tm ( discussin g attitudes towards vouch ers amon g African American s) ; Byron A. Ellis, Opportunities Embedded
in Educational Vouchers, T H E BLACK WO RLD T O DAY ( Mar. 20, 2002) , at h ttp:/ /
ath en a.tbwt.com/ con ten t/ search .asp?id=252 ( supportin g vouch ers) ; Barbara
Min er, Vouchers and the False Promise of Academic Achievement, T H E BLACK WO RLD
T O DAY ( Feb. 24, 2002) , at h ttp:/ / ath en a.tbwt.com/ con tent/ search .asp?id=15 ( opposin g vouch ers) ; Joyce Jon es, The Problems With Education Coupons: Why the CBC
Opposes School Vouchers, BLACK ENTERPRISE MAGAZINE ( Feb. 2001) , at h ttp:/ / www.
blacken terprise.com/ Arch iveopen.asp?source=/ Arch ive2001/ 02/ 0201-05.h tm. See
generally Symposium, The Education Divide: Gauging the Impact of Legal Challenges to
School Vouchers and Parental Choice on America's Children , 45 H O W. L.J. 247 ( 2002) .
477
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This paucity of discussion may, in part, be attributable to the
way that the voucher debate is typically framed. The White Republicans and libertarians who are the most visible face of th e vouch er
movement present those programs as the best ( perh aps only) way
for Black and Latino parents to pursue their children' s individual
best interests. In response, many of the predominantly Wh ite organizations that oppose vouch ers, like teachers' unions and those concern ed with the separation of church an d state, argue that vouch er
programs do not promote the collective good, either because they divert public money to religious institution s or because by in dividuating wh at is inherently a public good th ey h arm our democracy.3
Unfortunately, this framin g focuses the discussion on relatively abstract legal and societal issues like What is the proper place of religion in our society? an d Is public space essen tial to democracy?
Worse yet, it effectively forces paren ts to weigh these issues against
their own self-interest. In other words, th is framin g turn s th e discussion of vouchers into a con versation about h ow Black and Latino
American s sh ould sacrifice yet more for th eir coun try. Th at is n ot a
conversation that I, or any other academic of color who is skeptical
about vouchers, is going to be anxious to join .
This is n ot to say that I believe that the Establishment Clause
issues raised by vouchers are un important I do not even think that
they are abstract.4 Nor is it irrelevan t that private and paroch ial
school vouchers will greatly dimin ish our public space:
3. See JEFFREY R. H ENIG, RETH INKING SCH O O L CH O ICE: LIMITS O F TH E MARKET
METAPH O R 200 ( 1994) ( [ W] e n eed to focus on th e differen ces between private
an d public in stitution s an d processes as vehicles for deliberation, debate, and decision
making. Th e real dan ger in th e market-based proposals for ch oice is n ot th at th ey
migh t allow some studen ts to atten d privately-run sch ools at public expen se, but
th at th ey will erode th e public forums in wh ich decision s with societal con sequen ces can democratically be resolved. ) ; CARO L ASCH ER ET AL., H ARD LESSO NS:
PUBLIC SCH O O LS AND PRIVATIZATIO N 9 ( 1996) ( Public education is more th an a
simple mech anism for deliverin g a commodity to con sumers. Like oth er public
in stitution s, it is a `veh icle for deliberation , debate an d decision -makin g.'
Th rough th ese processes, education becomes a public service th at contributes to
th e comparative well-bein g an d stren gth of both local commun ities an d the n ation
as a wh ole. ) ; Joh n A. Powell, The Tensions Between Integration and School Reform, 28
H ASTINGS CO NST . L.Q. 655, 680 ( 2001) ( arguin g th at education must be un derstood to be a social good rather than a private commodity, as well as a site of
constitution of th e self, an d a vehicle for racial an d econ omic integration ) .
4. See Gary J. Simson , School Vouchers and the Constitution: Permissible, Impermissible, or Required?, 11 CO RNELL J.L. & PUB. PO L' Y 553, 570 ( 2002) ( [ E] n dorsemen t is
on ly on e of various reason s wh y state fundin g of religion is con stitution ally problematic. Most obviously, it coerces in dividual taxpayers to support religion s an d
religious beliefs with wh ich they may deeply disagree, it ten ds to h ave a corruptin g
effect on th e religion th at it subsidizes, an d it fosters social con flict alon g religious
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Public schools are one of the few institution s in th e United
States where people from different backgrounds come togeth er to negotiate common values and to determine the
course of our shared future. It is public spaces, such as th ose
schools, that give mean ing to citizenship because it is in
those spaces that we are all equal.5
However, n either separation of ch urch and state nor public
space are adequate answers to a paren t whose immediate concrete
concern is finding any way to send his child to any school, including
the neighborhood Catholic school ( which is tantalizingly close, but
just out of reach) , that could be his ch ild' s path away from academic failure and away from things that are much worse than academic failure.
So, while I do not support the Supreme Court' s newly min ted
Establishment Clause jurispruden ce,6 the on e good thing about
having Zelman v. Simmons-Harris behin d us ( and the fact that the
Blaine Amendment questions7 h ave yet to catch the public' s atten tion) is that now we can talk about th e issues th at are cen tral to the
principle stakeholders in this debate th e paren ts of children in
lin es. ) ; Derek H. Davis, Mitch ell v. Helms and the Modern Cultural Assault on the
Separation of Church and State, 43 B.C. L. REV. 1035, 1068 ( 2002) ( Religion with its
h an d out [ for govern men t fun ds] can n ever speak with a proph etic voice. It will
acquiesce to govern men t requiremen ts in order to in sure its con tin ued fun din g . . . . ) ; see also Ruti Teitel, Vouchsafing Democracy: On the Confluence of Governmental Duty, Constitutional Right, and Religious Mission , 13 N O TRE DAME J.L. ETH ICS &
PUB. PO L' Y 409 ( 1999) ( discussin g th e privatization of tradition al govern men t function s an d th e movemen t of religion in to the public sph ere) .
5. Den ise C. Morgan , Deregulating Education in the United States, from Vouchers to
Home Schooling to the End of Voluntary Desegregation: Is the Cost Too High?, FINDLAW' S
WRIT ( Sept. 17, 2002) , at h ttp:/ / writ.n ews.fin dlaw.com/ commen tary/ 20020917_
morgan .h tml.
Th is assertion is n ot based on th e n aive belief th at public sch ools are integrated alon g racial an d socioecon omic lin es. Rath er, it reflects th e cyn ical acceptan ce th at th e Un ited States military and our public sch ools are amon g a h an dful of
in stitution s in th is coun try th at even rh etorically strive to achieve th ose types of
in tegration .
6. Compare Everson v. Bd. of Educ. of Ewin g, 330 U.S. 1 ( 1947) , Lemon v.
Kurtzman , 403 U.S. 602 ( 1971) , Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 ( 1973) , and Sch . Dist. of Gran d Rapids v. Ball, 473 U.S. 373
( 1985) , with Mueller v. Allen , 463 U.S. 388 ( 1983) , Witters v. Wash. Dep' t. of Servs.
for th e Blin d, 474 U.S. 481 ( 1986) , Zobrest v. Catalin a Sch . Dist., 509 U.S. 1
( 1993) , Agostin i v. Felton , 521 U.S. 203 ( 1997) , Mitch ell v. Helms, 530 U.S. 793
( 2000) , and Zelman v. Simmons-Harris, 122 S.Ct. 2460 ( 2002) .
7. See David H. Mon k & Samid Hussain , Policy Implications of Increased High
School Graduation Expectations, 1998 ANN. SURV. AM. L. 245 ( 1998) ; Michael Rebell,
Commentary Rodriguez Revisited: An Optimist's View 1998 ANN. SURV. AM. L. 289
( 1998) .
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urban public schools.8 Th ese paren ts want to talk about the circumstances under which vouchers have the poten tial to provide
good educational choices, an d they want to discuss whether
voucher plans are being set up so th at th ey are likely to produce
those benefits. I am much happier with this framing of the issue.
In the first section of this essay, I discuss the seemin gly inconsistent data on African American attitudes towards school vouch ers
and offer an explanation th at reconciles those results. In the second and third sections, I review the systemic reason s that urban
public schools in the United States too often fail to improve th e life
chances of their studen ts, an d explain what sch ool voucher programs can and cannot do to address those systemic issues. I con clude that although private and paroch ial school vouch ers may
improve our education system in marginal ways, the truly revolutionary potential of vouchers lies in public school voucher plans that
open predominantly middle class suburban public schools to urban
children of color.
I.
AFRICAN AMERICAN ATTITUDES TOWARDS
SCHOOL VOUCHERS9
Man y people were surprised to hear th at a n umber of prominent Black Democratic politician s including Kurt Schmoke, a former mayor of Baltimore; Andrew Youn g, a former mayor of Atlanta;
and Reverend Floyd Flake, a former Congressman from New York
8. I disagree with James Ryan an d Michael Heise, wh o h ave written that suburban ites are th e most importan t stakeh olders in th e vouch er debate. The Political
Economy of School Choice, 111 YALE L.J. 2043, 2045 ( 2002) . Because of th eir political
power, suburban ites are un doubtedly th e most powerful players; but paren ts of
urban sch ool ch ildren h ave th e most to gain or to lose.
9. Th is essay focuses on th e attitudes of African American s towards sch ool
vouch ers because, alth ough Latin o public sch ool en rollmen t is rapidly
approach in g th at of Black public sch ool en rollment ( together th e groups accoun t
for a bit over on e-th ird of th e public school population nationwide) , n ational
opin ion polls do n ot report Latin o parents' opin ion s about school vouch er
programs. Moreover, th e statewide surveys th at h ave been taken h ave been
in con clusive. A ph on e survey of Latin o registered voters in Californ ia con ducted
prior to th e 2000 election sh owed th at 42.8% of respon den ts favored Proposition
38, wh ich would h ave establish ed a statewide vouch er program, 38.8% of
respon den ts opposed th e measure, an d 18.4% were un decided. William C.
Velasquez In stitute, Phone Survey of Latino Registered Voters California , ( Sept. 27 Oct.
4, 2000) , at h ttp:/ / www.wcvi.org/ latin o_voter_research / polls/ ca_total_n 560.h tml.
However, Californ ian s rejected Proposition 38 by a margin of 71% to 29% an d exit
polls showed th at 66% of Catholic voters, wh o are largely Latin o, voted again st the
measure. Edd Doerr, Latino Support for Vouchers, WASH . PO ST , May 22, 2001, at A20.
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City have said that they support school vouch ers.10 Whoever was
surprised by this news was probably even more surprised to h ear
that those Black politician s only wan ted wh at their constituents
wanted. Polls show that 57% of all Black Americans,11 and 75% of
Black Americans under th e age of thirty-five,12 say th at they support
school voucher programs.
I imagine th at people were surprised by those poll results because they seem to put a significan t segment of African Americans
on the same side of th e vouch er debate as both conservative
Republicans and free-market worsh iping libertarian ideologues
with whom our commun ity has n ot traditionally seen eye to eye.
Despite this strange bedfellow ph enomenon, I was not particularly surprised to hear those poll results, and n either should anyone
who has studied the history of race and education in th e Un ited
States. The Black commun ity simply continues to be interested in
the same thing that we h ave been interested in throughout American history: high quality education for our children.13 By that, I
mean schools that can en han ce in tergeneration al mobility giving
10. See Good Counsel Given , FLA. T IMES U NIO N, Sept. 14, 1999, at B6 ( describing
Youn g' s remarks in favor of vouch ers at an NAACP din ner in Tallah assee) ; Kurt L.
Sch moke, Why School Vouchers Can Help Inner-City Children , CIVIC BULLETIN ( Aug.
1999) , at h ttp:/ / www.man h attan -in stitute.org/ cb_20.pdf ( speech at th e Man h attan In stitute in support of sch ool vouch ers) ; Rev. Floyd Flake, Panel Two Commentary, 1998 ANN. SURV. AM. L. 215 ( 1998) ( explain in g th at h e supports sch ool
vouch ers because it is importan t to force th e system to respon d [ to studen t n eed]
as opposed to leavin g it to its own devices ) ; Samuel G. Freedman, The Education
Divide, SALO N ( Sept. 30, 1997) , at h ttp:/ / arch ive.salon .com/ sept97/ news/ n ews97
0930.h tml ( discussin g Rev. Floyd Flake' s support for sch ool vouch ers) ; see also
Catherin e Gewertz, Reporter's Notebook: Growth and Expansion Highlighted at BAEO's
Second Symposium, EDUC. WK., Mar. 13, 2002, at 9 ( describin g th e secon d an n ual
symposium of th e Black Allian ce for Education al Options wh ich favors sch ool
vouch ers) .
11. DAVID A. BO SITIS, JO INT CENTER FO R PO LITICAL AND ECO NO MIC STUDIES,
2002 N ATIO NAL O PINIO N PO LL: PO LITICS 20 ( 2002) , available at h ttp:/ / www.join t
cen ter.org/ wh atsn ew/ 2002_NOP_text&tables.pdf ( askin g, [ w] ould you support a
vouch er system wh ere parents would get mon ey from th e govern ment to sen d th eir
ch ildren to th e public, private, or paroch ial sch ool of th eir ch oice? ) .
12. DAVID A. BO SITIS, JO INT CENTER FO R PO LITICAL AND ECO NO MIC STUDIES,
2000 N ATIO NAL O PINIO N PO LL: PO LITICS 9 ( 2000) , available at h ttp:/ / 130.94.20.
119/ DB/ table/ NOP/ reports/ 2000_politics_report.pdf.
13. See Den ise C. Morgan , What's Left to Argue in Desegregation Law?: The Right to
Minimally Adequate Education , 8 H ARV. BLACKLETTER L.J. 99 ( 1991) ( describing the
h istory of equal education al opportun ity litigation in th e Un ited States) .
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children access to greater social, political and economic power than
their parents have.14
So, I did not take those poll results as an indication that Black
parents are particularly in terested in ch oice, mean ing increased
parental autonomy. Since th ere is a long history of empty ch oices in
the African American community,15 choice with out substance is a
hard thing to sell to our community. Choice exists when someone says to you: Here' s a rock, h ere' s a hard place choose.
Rather, if history is any indication , what Black paren ts wan t is n ot
choice, but good choices good education al choices, now.
The polls support my intuition on th is. Wh ile it is true that a
majority of African Americans say th at they support vouchers when
asked the question in a yes-or-n o form, wh en asked to select their
preferred school reform measure out of a list of five option s, n ot
only did providing parents with school vouchers come in last, but
African Americans ch ose reducing class size over vouchers by a
7-to-1 margin.16
II.
THE SYSTEMIC REASONS THAT TOO MANY URBAN
PUBLIC SCHOOLS FAIL TO PROMOTE
INTERGENERATIONAL MOBILITY
Those poll results raise at least two question s. The first is, can
we use vouchers to help to improve the life chan ces of urban minority children? The second is, what else, in addition to vouchers,
do we have to do to en sure th at the American educational system
works for everyone? To even approach the first question, I h ave to
step back and give a short history of equal education opportunity in
the United States. Then, I will discuss where I see school vouchers
fitting into that history.
We have to start by facing facts: Americans like the in equality in
our education system. At th e same time that most American s be14. See Den ise C. Morgan , The Less Polite Questions: Race, Place, Poverty and Public Education , 1998 ANN. SURV. AM. L. 267, 276 78 ( 1998) ( defin in g in tergen eration al mobility) .
15. See, e.g., Green v. County Sch . Bd., 391 U.S. 430 ( 1968) ; CO NSTANCE
CURRY, SILVER RIGH TS ( 1995) ( documen ting an African American family' s figh t to
sen d its ch ildren to th e segregated Wh ite sch ools of Drew, Mississippi) ; see also
Powell, supra n ote 3, at 671-82 ( 2001) ( discussin g h ow th e term ch oice is used in
th e curren t discussion of racial in tegration an d sch ool reform) .
16. See NSBA/ ZO GBY INTERNATIO NAL PO LL, School Vouchers: What the Public
Thinks and Why ( 2001) , available at h ttp:/ / www.n sba.org/ n ovouch ers/ vsc_docs/
zogby_sum.pdf ( last visited Feb. 9, 2003) .
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lieve that children are en titled to th e kind of education al opportunity th at will allow them to succeed or fail on their own merits, we
just as firmly believe that their parents sh ould be rewarded for their
hard work and success. An d, as Jen n ifer Hoch schild has said: One
has not really succeeded in America unless one can pass the ch ance
for success on to one' s ch ildren. 17 So, wh ile we h ave a strong egalitarian tradition in the United States, we also have a strong tradition
that points in the opposite direction towards replicating existing
hierarchies. You can see evidence of both traditions in our public
schools and in the Supreme Court' s education law jurispruden ce.
If the only education law you knew was Brown v. Board of Education ,18 th e 1954 case in which th e Supreme Court declared th at racially segregated public schools are un equal, th en you would
probably be un der the impression th at th e United States Con stitution guarantees substantive education al equality for all ch ildren .
You would be wrong. There are three prin cipal Supreme Court
cases that en sure that the ch ildren of relatively wealthy and powerful parents will have an education al leg up on everyone else: Pierce
v. Society of Sisters,19 San Antonio Independent School District v. Rodriguez,20 and Milliken v. Bradley.21
My point in discussing th ese three cases is not to argue that
th ey are legally un supportable. My poin t is more subtle th an th at
it is to show that the failure of urban public schools in th e Un ited
States is not just a matter of random misfortun e. Th ere are systemic
reasons why those schools fail to en courage intergenerational mobility. These systemic reason s are what vouchers, or an y oth er education reform strategy th at aims to equalize opportunity in the
United States, must address.
17. Quoted in WILLIAM JULIUS WILSO N, WH EN WO RK DISAPPEARS: T H E WO RLD
N EW U RBAN PO O R 194 ( 1996) . See also JENNIFER L. H O CH SCH ILD & N ATH AN
SCO VRO NICK, T H E AMERICAN DREAM AND TH E PUBLIC SCH O O LS 2 ( 2003) ( Most
American s believe th at everyon e h as th e right to pursue success but that on ly some
deserve to win , based on th eir talen t, effort, or ambition . . . . Th e paradox stems
from th e fact th at th e success of on e gen eration depen ds at least partly on th e
success of th eir paren ts or guardian s . . . . Th e paradox lies in the fact th at sch ools
are supposed to equalize opportun ities across gen eration s an d to create democratic citizen s out of each generation , but people n aturally wish to give th eir own
ch ildren an advan tage in attain in g wealth or power, and some can do it. ) .
18. 347 U.S. 483 ( 1954) .
19. 268 U.S. 510 ( 1925) .
20. 411 U.S. 1 ( 1973) .
21. 418 U.S. 717 ( 1974) .
O F TH E
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Pierce v. Society of Sisters
In Pierce, the Supreme Court h eld th at because the own ers of
private and paroch ial schools have federal substantive due process
rights to conduct their businesses, states cann ot compel all children
to attend public schools.22 This decision did two important th ings.
First, it recognized the real an d important in terest th at parents
have in directing the education and upbrin ging of their ch ildren ;
and second, it ensured that th ere would be in equality in this coun try' s education system. Public schools would be available to all children, and private schools would be available for those parents who
have the financial wherewith al to pass th eir success ( or religious or
cultural beliefs) on to the next generation.23
Of course, Pierce did not say an ything about th e relative quality
of public and private education. And, indeed, there are many h igh
quality public schools th at rival the best private and paroch ial
schools in this country. But, more importantly, the existen ce of private education is a bit of a red herring in an y conversation about
equal educational opportun ity. Approximately nin ety percen t of
children in th e United States are educated in public sch ools.24 So,
it is n ot really fair to blame private sch ools for the inequalities that
run deep in this country' s education system.
B.
San Antonio In dependent School District v. Rodriguez
Rodriguez is the case th at we h ave to blame for th ese continuing
inequalities. In this 1973 case, the Supreme Court h eld that, because education is not a fun damen tal constitutional righ t, and because discrimination again st the poor is n ot deservin g of the same
strict scrutiny as discrimination on the basis of race or religion, the
inequitable distribution of funding for public education does n ot
violate any federal constitution al rights.25 The Supreme Court said
22. 268 U.S. at 534-36.
23. See, e.g., Steph an ie Strom, Private Preschool Admissions: Grease and the City,
N.Y. T IMES, Nov. 16, 2002, at C1 ( describin g h ow Jack Grubman , a wealth y an alyst
at Smith Barn ey, used h is powerful con nections to get h is children in to a competitive private presch ool) ; see also ANDREW M. GREELEY, CATH O LIC H IGH SCH O O LS AND
MINO RITY STUDENTS 15-16 ( 1982) ( Cath olic school secon dary studen ts come from
much more affluen t families [ th an public sch ool studen ts] . . . ; 42 percent of
wh ites ( as opposed to 29 percen t of th e public sch ool wh ites) , 28 percen t of blacks,
an d 24 percen t of Hispan ics ( as opposed to 11 percen t of public sch ool min orities) report more th an $25,000 a year in family income. ) .
24. See N ATIO NAL CENTER FO R EDUCATIO N STATISTICS, Public and Private and
Secondary Enrollment, Teachers, and Pupil/ Teacher Ratios: Fall 1955 to Fall 2001 ( 2001) ,
at h ttp:/ / n ces.ed.gov/ quicktables/ Detail.asp?Key=692.
25. 411 U.S. at 54-55.
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that its decision was necessary to allow parents to be able to exercise
control over the local public schools that th eir children atten d.26
However, this case also allowed wealthy parents in property-rich
school districts to continue to fund their local schools at levels that
parents in property-poor sch ool districts could not achieve no
matter how much they taxed themselves. Money may not buy everything, but it can buy smaller class sizes, it can help to woo more
sought-after, highly qualified teachers, an d it can pay for state-ofthe-art equipmen t and well-maintained ph ysical facilities ( all of
which are associated with better educational outcomes) .
C.
Milliken v. Bradley
Finally, there is Milliken . Rodriguez may not have had such a
tremendous racial impact if desegregation litigation h ad successfully integrated children of color from property-poor school districts and White children from property-rich school districts in to
the same public schools. But, in 1974, desegregation litigation was
crippled by Milliken .
Everyone knows that cities in th e United States are marked by
the de facto segregation of poorer students of color in urban centers and wealthier White studen ts in th e surroun ding suburbs.27
And, most often, school district lin es are drawn along the boun daries between the city centers and the suburbs. However, the Milliken Court set those demograph ic facts in stone by holdin g th at, in
most cases, federal courts h ave n o power to order desegregation
across those geographic boun daries.28 Th at h olding made courtordered desegregation of urban and suburban public schools virtually impossible.29 More importan tly, that decision concentrated
26. Id. at 49.
27. See generally DO UGLAS S. MASSEY & N ANCY A. DENTO N, AMERICAN
APARTH EID: SEGREGATIO N AND TH E MAKING O F TH E U NDERCLASS ( 1993) .
28. Milliken v. Bradley, 418 U.S. 717, 745-47 ( 1974) .
29. See Erica Fran ken berg, et. al, A Multiracial Society with Segregated Schools: Are
We Losing the Dream?, T H E CIVIL RIGH TS PRO JECT 23 ( Jan . 2003) , available at h ttp:/ /
www.civilrigh tsproject.h arvard.edu/ research / reseg03/ AreWeLosin gth eDream.pdf
( describin g th e sign ifican t resegregation of public sch ools in th e Un ited States th at
h as taken place since th e 1980s) .
Recen tly, voluntary integration plan s h ave also come un der attack. See Joh n son v. Bd. of Regen ts of Un iv. of Ga., 263 F.3d 1234, 1254 ( 11th Cir. 2001) ( strikin g
down th e Un iversity of Georgia' s race-based affirmative action program) ; Eisen berg v. Mon tgomery Coun ty Pub. Sch ., 197 F.3d 123, 133 ( 4th Cir. 1999) ( proh ibitin g con sideration of race in transfers to public magnet sch ool for purpose of
promotin g racial diversity) ; Wessmann v. Gitten s, 160 F.3d 790, 792 ( 1st Cir. 1998)
( prohibitin g use of race an d ethn icity as admissions criteria at the public Boston
Latin Sch ool) ; Hopwood v. Texas, 78 F.3d 932, 934 ( 5th Cir. 1996) ( strikin g down
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poverty, the factor most closely associated with education al failure,
in our urban schools.30 As a result, Milliken magnified an d gave a
racial cast to the inequality th at Pierce an d Rodriguez san ctioned.
III.
WHAT VOUCHERS CAN AND CANNOT DO TO
REDRESS THE SYSTEMIC REASONS WHY
TOO MANY URBAN PUBLIC
SCHOOLS FAIL TO PROMOTE
INTERGENERATIONAL MOBILITY
What can vouchers do to alter the present education al landscape? More specifically, because the devil is in the details, how
would we have to set up voucher programs in order to change this
affirmative action program at Un iversity of Texas Sch ool of Law) ; see also Regents in
Florida Bar Race and Sex as Admission Factors, N.Y. T IMES, Feb. 18, 2000, at A18 ( reportin g th at Florida barred th e use of race an d sex as consideration s for admission
to state' s ten public un iversities) ; Tom Brun e & Joe Heim, New Battle Begins: Interpreting Law, SEATTLE T IMES, Nov. 4, 1998, at B1 ( reportin g that 58% of voters support in itiative 200, wh ich would end affirmative action in Wash in gton State) ; Bill
Stall & Dan Morain , Prop. 209 Wins, Bars Affirmative Action , L.A. T IMES, Nov. 6,
1996, at A1 ( reportin g th at Californ ia voters pass in itiative elimin atin g govern men t-spon sored affirmative action programs) .
30. See Gary Orfield & Joh n T. Yun , Resegregation in American Schools, Th e Civil
Righ ts Project, at h ttp:/ / www.civilrigh tsproject.h arvard.edu/ research / deseg/
Resegregation _American_Sch ools99.pdf ( Jun e 1999) ( Sch ool level poverty is related to man y variables th at effect a sch ool' s overall ch an ce at successfully educatin g studen ts, in cludin g paren t education levels, availability of advan ced courses,
teach ers with creden tials in th e subject th ey are teach in g, in stability of en rollmen t,
dropouts, un treated h ealth problems, lower college-goin g rates an d man y oth er
importan t factors. ) ; see also GARY O RFIELD & SUSAN E. EATO N, DISMANTLING DESEGREGATIO N : T H E Q UIET REVERSAL O F BRO WN V. BO ARD O F EDUCATIO N 53 ( 1996)
( On e of th e most con sisten t fin din gs in research on education h as been th e powerful relation sh ip between con cen trated poverty and virtually every measure of
sch ool-level academic results. ) ; RICH ARD D. KAH LENBERG, ALL T O GETH ER N O W:
CREATING MIDDLE-CLASS SCH O O LS TH RO UGH PUBLIC SCH O O L CH O ICE, 25 29 ( 2001)
( listin g studies sh owin g th at th e socioeconomic status of classmates h as a powerful
effect on academic ach ievemen t ) .
Th is is n ot to say th at public sch ools with h igh con cen tration s of poverty can n ot be academically successful. However, that ph en omen on is difficult to ach ieve
an d even more difficult to replicate. See, e.g., DEBO RAH MEIER, T H E PO WER O F
T H EIR IDEAS: LESSO NS FO R AMERICA FRO M A SMALL SCH O O L IN H ARLEM ( 1995) ; JAY
MATH EWS, ESCALANTE: T H E BEST T EACH ER IN AMERICA ( 1988) ( sh owin g h ow public
sch ool teacher Jaime Escalan te in spired disadvan taged Latino studen ts at an East
Los An geles h igh sch ool to earn top scores in th e Advan ced Placemen t Calculus
test) ; LEAN O N ME ( Warn er Broth ers 1989) ( th e story of New Jersey h igh sch ool
prin cipal Joe Clark) ; see also KAH LENBERG, supra at 86 88 ( 2001) ( relatin g stories of
h igh performin g h igh poverty public sch ools) .
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landscape in a more than trivial fashion? I do not doubt th at
vouchers will improve educational opportun ity for some small number of children. Th ey almost certainly will. My fear is that we will
sell vouchers short and fail to harness their truly revolutionary potential which is not to be a stealth method of privatizin g our education system or breakin g th e teach ers' union s. The revolutionary
potential of vouchers, as Rich ard Kahlen berg h as written , is that
they may be a way to make school district lin es more porous and,
therefore, to reduce the concentration of poverty in urban public
schools.31 In other words, vouch ers may be a way to reverse the
effects of Rodriguez and Milliken , as opposed to merely expanding
Pierce.
It follows that most voucher proponen ts are off the mark about
how and why vouch ers can most effectively equalize educational opportunity. Voucher proponents say that vouch ers will add private
schools to the options that are curren tly available to low income
urban students. They are correct, but neith er paroch ial schools nor
the yet-to-be-developed sch ools of ch oice are more th an just a
band-aid on the problems that our urban public sch ool systems
face. And, even assuming that some public sch ools improve in response to competition from voucher plan s, th at competition will
inevitably also produce losers: public sch ools th at simply get worse.
At least as they are currently set up, vouchers will not seriously challenge the systemic reasons that urban public sch ools fail.
A.
Parochial Schools
The Zelman decision added parochial schools to the mix of
those available to paren ts through voucher programs. Th eir addition invigorated the voucher movement because parochial schools
are among the few private schools that are affordable to a parent
armed with a voucher worth $2500.32 In deed, 96.6% of the
vouch er recipients in th e Cleveland program used th e money th ey
received to send their children to paroch ial schools ( many of which
31. See KAH LENBERG, supra n ote 30, at 1 ( arguin g that every ch ild in th e
Un ited States wh eth er rich or poor, wh ite or black, Latin o or Asian should
h ave access to th e good education th at is best guaran teed by th e presen ce of a
majority middle-class studen t body. ) ; Rich ard Kah len berg, Socioeconomic School Integration Through Public School Choice: A Progressive Alternative to Vouchers, 45 H O W.
L.J. 247 ( 2002) ( arguin g for in creased access to majority middle class schools) .
32. Amon g th e vouch er programs curren tly in operation , Clevelan d' s vouch er
is worth up to $2500, Florida' s is worth up to $4000, an d Milwaukee' s is worth up
to $5300. See Ryan & Heise, supra note 8, at 2083.
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were affiliated with the Cath olic church) .33 Th e inclusion of parochial schools in voucher programs also gives a boost to propon ents
who claim that those schools are inh eren tly better th an public
sch ools. Th ere is, in fact, a lively debate about wh eth er more teach ing and learning goes on in private an d parochial sch ools than in
public schools.34 There is also dispute as to whether any ben efits
that may derive from vouchering urban public sch ool students in to
parochial schools will diminish as the concen tration of poverty in
those schools increases.
However that may be, the major problem with treating parochial schools as the solution to the problems of urban education is
capacity.35 Parochial schools curren tly educate n ot quite 9% of the
studen ts in this country. Even if parochial schools were to double
their capacity which is high ly unlikely we would still h ave to figure out what to do with th e oth er 80% of the student population .
Of course, the fact that parochial sch ool vouchers will not h elp the
vast majority of children is not a reason to prohibit them. But, it is
a reason to say that paroch ial school vouchers do n ot give us
enough good education al choices to solve the problems that our
urban public schools face.36
33. Zelman v. Simmon s-Harris, 122 S.Ct. 2460, 2494 ( 2002) ( Souter, J., dissen tin g) . Wh ile th e average tuition of Catholic elemen tary sch ools was $1572 in
th e 1993-94 sch ool year, th e average tuition of oth er religious sch ools was $2213
an d of n on religious private sch ools was $3773. Much of th at disparity is attributable to th e fact that Cath olic sch ools are sign ificantly subsidized by th eir parish es.
Id. at 2495-96 n .15.
34. Compare LUIS BENVENISTE ET AL., ALL ELSE EQUAL: ARE PUBLIC AND PRIVATE
SCH O O LS DIFFERENT ? 190 ( 2003) ( [ T] h e main division we foun d in th e sch ools
th at we visited was n ot between sectors private versus public but between
sch ools, both private an d public, servin g differen t socioecon omic commun ities.
The person n el in a private elemen tary school in a low-in come commun ity teach
ch ildren an d deal with parents much like th e teach ers an d staff of a public sch ool
in th e same commun ity. Likewise, it is difficult to distin guish a private sch ool classroom from a public in a h igh -in come suburb. But th ere are major differen ces in
wh at is taugh t in private or public sch ools in h igh- an d low-in come neigh borh oods. ) , with Dan iel P. Mayer et al., School Choice in New York City After Three Years:
An Evaluation of the School Choice Scholarships Program Final Report, MATH EMATICA
PO LICY RESEARCH , INC. ( Feb. 19, 2002) , at h ttp:/ / www.math ematica-mpr.com/
PDFs/ n ycfull.pdf ( fin ding th at private an d public sch ools with in a sin gle geograph ic area focus on different aspects of th e education al experien ce) .
35. See, e.g., INTERCULTURAL DEVELO PMENT RESEARCH ASSO CIATIO N, Students for
Sale The Use of Public Money for Private Schooling 5 ( 1999) , at h ttp:/ / idra.org/ Research / vouch er.pdf ( Texas private schools could absorb n o more th an 1 percen t
( 30,000 of th e 3.4 million) of studen ts en rolled in public schools. ) .
36. At th e risk of soun din g like a propon en t of privatization , I h ave to admit
th at th is may be a good example of governmen t tryin g to do someth in g th at private in stitution s can do better. In con trast to public vouch er programs, private
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For-Profit Schools of Choice
Voucher proponen ts h ave an answer to the capacity problem.
They say that new h igh quality for-profit sch ools of ch oice will
spring up as soon as state subsidies for education are available.
Their faith in market forces leads them to believe that if we pay for
it, good schools will come. I am suspicious about th at assertion
because I h ave not been impressed by th e for-profit companies, like
Edison, Tessaract/ Education Alternatives, and Ch ancellor Beacon
Academies, that have taken over an d run public schools so far. Despite market forces, these schools are no more effective, and are
less efficient, than most public schools.37 Indeed, non e of these
education management organ ization s have been able to turn a
profit to date.38 I am n ot alone in my skepticism: in 2001 parents in
New York City overwhelmingly rejected an attempt to turn five failing public schools over to Edison .39
I also worry because market forces do not always supply people
of color with what we demand.40 On e of th e most n otorious examples of this is the story of grocery stores in Harlem. Un til Path mark
opened a store on 125th street in 1999, it was almost impossible to
find fresh fruit and vegetables on th e north en d of Man hattan. The
problem certainly was n ot a lack of demand, nor was it that th ere
was not enough money to be made by opening a store in the area,
but it still took decades for that deman d to be answered. I fear that
the same phenomenon could affect the promised sch ools of
choice. Of course, th is possibility is not a reason to proh ibit such
scholarsh ip programs, like A Better Ch an ce, often sen d th eir recipien ts to elite private sch ools. See A Better Chance Scholars Program: The College Preparatory Schools Program, at http:/ / www.abetterch an ce.org/ cpsp.h tm ( last visited Apr. 15, 2003) .
37. See Peter Sch rag, Edison's Red Ink Schoolhouse, T H E N ATIO N, June 25, 2001,
at 20, 22 ( Edison frequen tly spen ds more per ch ild th an th e publicly run sch ool
down th e street. ) ; Ben ven iste, supra n ote 34, at 45 ( 2002) ( Edison h as h ad some
successes, but in man y of its sch ools test scores do n ot rise more rapidly th an competin g publicly run sch ools. ) .
38. See William C. Symon ds, Edison: An `F' in Finance, BUS. WK., Nov. 4, 2002,
at 52 ( Last year, Edison ' s spendin g on education an d operatin g expen ses still
outpaced reven ues by 10%. As a result, Edison ' s operatin g losses in cludin g
ch arges jumped 88%, to $76.7 million . ) .
39. See Lyn ette Holloway, Parents Explain Resounding Rejection of Privatization at
5 Schools, N.Y. T IMES, Apr. 13, 2001, at B1 ( Wh ile most paren ts did n ot vote, 80
percen t of th ose wh o did voted to reject Edison . ) .
40. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car
Negotiations, 104 H ARV. L. REV. 817 ( 1991) ( offerin g empirical eviden ce that competitive market forces do n ot elimin ate race an d sex discrimin ation ) ; see also Ian
Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of Its
Cause, 94 MICH . L. REV. 109 ( 1995) .
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for-profit ventures. However, it should give some pause to an yone
who believes that market forces by th emselves are a solution to the
problems of urban education .41
C.
Competition
Even assuming that religious sch ools double in capacity an d
that some new, h igh quality schools of ch oice come alon g, we still
have to consider the rest of th e children wh o will remain in the
public schools. Voucher proponen ts h ave an answer h ere too: competition . Competition will improve the remaining public sch ools
and it will cause th e on es th at do not improve to shut down. Here
again, I am dubious.
First, there are con flictin g studies about the ability of public
schools to respond positively to competition from nearby educational institutions.42 But, more importantly, actual experiences
with voucher programs demon strate th at th ere have to be losers in
competitions. I fear that competition among sch ools in th e United
States will end up looking like it looks in New Zealan d or in Ch ile.43
Helen Ladd found that in th ose countries, universal vouch er programs reinforced existin g socioeconomic an d racial hierarch ies because the better sch ools, not the parents, exercised choice.44 The
41. See, e.g., JO H N E. CH UBB & T ERRY M. MO E, PO LITICS, MARKETS, AND
AMERICA' S SCH O O LS 217 ( 1990) ( advising th at reformers would do well to en tertain th e n otion that ch oice is a panacea ) .
42. Compare Eric Bettin ger The Effect of Charter Schools on Charter Students and
Public Schools ( 1999) , available at h ttp:/ / n cspe.org/ keepout/ papers/ 00004/ 182_
OP04.pdf ( sh owin g th e extremely small effect of competition on the test scores
of ch ildren in public sch ools located with in five miles of a charter sch ool) , Blair R.
Zan zig, Measuring the Impact of Competition in Local Government Education Markets on
the Cognitive Achievement of Students, 16 ECO N. EDUC. REV. 431, 439 ( 1997) ( con cludin g th at th e presen ce of four sch ool districts with in a coun ty gen erates gain s in
student ach ievemen t, but addition al competition gen erates n o furth er gain s) , and
Sh awn a Grosskopf et. al., On the Determinants of School District Efficiency: Competition
and Monitoring, 49 U RBAN ECO N. 453, 471 ( 2001) ( fin din g n o evidence th at competition is related to th e tech nical in efficien cy with which sch ool resources are used) ,
with Carolin e M. Hoxby, Does Competition Among Public Schools Benefit Students and
Taxpayers?, 90 AM. ECO N. R. 1209, 1236-37 ( 2000) ( fin din g th at metropolitan areas
with many competin g sch ool districts have h igh er test scores and lower costs) ; see
also H ELEN F. LADD, MARKET -BASED REFO RMS IN U RBAN EDUCATIO N 8-10, 47B51
( 2002) , available at h ttp:/ / www.epin et.org/ books/ education reform.pdf ( summarizin g th e research an d critiquin g Hoxby' s research meth odology) .
43. See H ELEN F. LADD, supra n ote 42, at 10 14; EDWARD B. FISKE & H ELEN F.
LADD, WH EN SCH O O LS CO MPETE: A CAUTIO NARY T ALE ( 2000) .
44. Th is ph en omenon is familiar to an yon e wh o h as tried to get h is or h er
ch ild into presch ool in New York City. See Amy Westfeldt, Competition Tough for
Nursery Schools; Admission Process Zaps N.Y. Parents, SAN DIEGO U NIO N-T RIB., Dec. 1,
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schools picked and ch ose from the applican ts on ly th ose th ey
thought would be most likely to succeed ( th ey were in a competition, and could not risk hurting th eir reputation s) . In addition ,
Ladd discovered that the bad schools did not shut down. As long as
compulsory attendance laws require that all children go to school,
bad schools can not be forced to sh ut down unless th e ch ildren who
attend them have some other option. In other words, compulsory
attendance laws interfere with the market forces th at the proponents of competition are counting on to make vouchers work.
IV.
WHAT WE NEED: LESS THAN VOUCHERS AND
MORE THAN VOUCHERS
So, wh y don ' t I just say th at I oppose vouch ers? Well, because I
don' t. I know that vouchers can work well in the housin g market.45
But, in that context, no one h as touted vouchers as a replacement for
urban renewal.46 Similarly, in th e education con text, private sch ool
vouch ers alone will not be enough . In fact, private sch ool vouch ers
may not even be necessary to improve education in the United
States. Th is is because vouchers will do th e most to equalize educational opportunity in this coun try if th ey give poor students and
students in failing public sch ools access to middle-class suburban
public sch ools. In other words, th e type of voucher program that
2002, at A21 ( Th e odds for admission [ to th e most competitive New York City
presch ools] are often 10 to 1 amon g th e applicants, comparable to top Ivy League
colleges. ) ; see also Carol Asch er, . . . And It Still Is News : The Educational Inequalities that Have Brought Us Vouchers, 1998 ANN. SURV. AM. L. 205, 213 ( [ S] tudent
ch oice is n ot wh at makes a successful private sch ool. In stead, n on sectarian an d
Cath olic sch ools h ave always kept a firm h an d on both admissions an d exits. ) .
45. See LEO NARD S. RUBINO WITZ & JAMES E. RO SENBAUM, CRO SSING TH E CLASS
AND CO LO R LINES: FRO M P UBLIC H O USING TO WH ITE SUBURBIA 39 ( 2000) ( describin g th e Gautreaux program, wh ich h elped 7,100 poor min ority families to secure
h ousin g in th e predomin an tly Wh ite middle class suburbs of Ch icago between
1976 an d 1998) ; Jen s Ludwig et al., Urban Poverty and Educational Outcomes, in
BRO O KINGS-WH ARTO N PAPERS O N U RBAN AFFAIRS 2001, 147 ( William G. Gale & Jan et Roth en berg Pack eds., 2001) ( describin g th e Movin g to Opportun ity program,
a n ation al h ousin g vouch er program, with sites in Baltimore, Boston, Ch icago, Los
An geles, an d New York) ; see also Peter H. Sch uck, Judging Remedies: Judicial Approaches to Housing Segregation , 37 H ARV. C.R.-C.L.L. REV. 289, 319-23 ( 2002) ( discussin g th e h istory an d success of th e Gautreaux and Movin g to Opportun ity
programs) .
46. See RUBINO WITZ & RO SENBAUM, supra n ote 45, at 173 ( assertin g th at programs like Gautreaux must be part of comprehensive strategies that address th e
problems of deterioratin g commun ities, improve th e life ch an ces of th e people
wh o live th ere, an d give families realistic choices of wh ere to live ) ( emph asis
added) .
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could most quickly help the largest number of urban students is the
type that we do not need vouchers for at all. All we need is the
political will to make it h appen. Th is, of course, is where our con servative Republican and free-market libertarian allies, who say th ey
favor choice, need to put th eir political migh t where their mouths
are. This has not yet happened. Of th e voucher plan s that currently exist, none involves suburban public sch ools ( when in vited,
they have declined to participate) .47 Th at h as to ch ange.
We also need to be sure th at vouchers are backed up with a
promise of free transportation. In Miami, more than a quarter of
the students who originally accepted vouch ers have returned to
public schools. One of the main reasons cited for th eir return was
transportation problems.48
In addition, we need to ackn owledge that universal vouch er
plan s are incompatible with th e notion th at vouch ers will redress in equality.49 In one outrageous example, the Low-Income School
Ch oice Demonstration Act, proposed by Senator Orrin Hatch ,
would have given larger tuition grants to students living in wealthier
neighborhoods than to those livin g in poorer areas.50 However, if
vouchers do not give poor children and children in failing sch ools
some competitive advantage over everyone else, they will just rein force existing hierarchies.
My final point is that, whatever their benefits, we can n ot allow
vouchers to distract us from the urgent project of improving our
public schools. Both proponen ts an d opponents of vouchers imagin e th at vouch ers will result in th e demise of public sch ools. I th in k
that this is about as likely to happen as th e state is to with er away
come the communist utopia. As long as public sch ools serve some
children well an d make no mistake, government monopoly
47. See Ryan & Heise, supra note 8, at 2047.
48. See Fla. Paper: 1 in 4 Pupils Give up Vouchers, WASH . PO ST , Nov. 4, 2002, at
A20; Ryan & Heise, supra n ote 8, at 2069.
49. Vouch er propon ents are fon d of blamin g th e failure of th e initiatives th at
would h ave in stituted un iversal vouch er programs in California an d Mich igan on
th e political migh t of th e teachers' un ion s. In fact, it is possible th at voters un derstood th at those programs were poorly design ed an d rejected th em on th e merits.
50. Un der th e Hatch proposal, th e maximum value of th e vouch er could n ot
h ave exceeded th e average per-pupil expenditure at th e public sch ool th at th e
ch ild would oth erwise atten d. Th e Hatch plan would in evitably h ave given more
mon ey to rich er studen ts th an to poorer ones, sin ce poorer people ten d to live in
districts th at can n ot afford to spen d as much on education as th e districts in wh ich
wealth ier paren ts live. See 138 CO NG. REC. 366-67 ( 1992) .
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schools serve suburban middle-class ch ildren very well51 public
schools are going to exist. And as lon g as there are schools like
Stuyvesant, Bronx Science, an d Hunter in our cities, public schools
should exist.
So, what we need is less than vouchers and more th an vouch ers. Vouch ers are not good schools. They are simply a tool th at we
need to learn to use to our advantage. Therefore, we should support voucher plans to the extent and only th e exten t th at th ey
improve our ch ildren' s life chances. Public school vouchers, it turn s
out, are the type likely to do th is most effectively. But, even public
school vouchers alone will not automatically promote intergenerational mobility they have to be part of a larger educational improvement plan that includes ensurin g adequate funding for public
schools, improved teacher trainin g, and urban revitalization.52 If
we care about children more than we care about ideology, we will
continue to study and experiment to find ways to improve our educational system. There may n ot be an y easy an swers to the
problems of urban education , but if we really care about our children that will not deter us.
51. Alth ough 61% of American s reported th at they were eith er somewh at or
completely dissatisfied with th e quality of education K-12 studen ts receive in th e
Un ited States, 78% of survey participants said th at th ey were eith er completely or
somewh at satisfied with th e education th at their own children were receivin g. Public Agen da On lin e ( Aug. 24 27, 2000) , at h ttp:/ / www.publicagen da.org/ issues/
pcc_detail2.cfm?issue_type=education &con cern _graph ic=pccn 3.gif. Th e question s asked were Overall, h ow satisfied are you with th e quality of education studen ts receive in grades kin dergarten th rough grade twelve in th e U.S. today
would you say completely satisfied, somewhat satisfied, somewh at dissatisfied or
completely dissatisfied? an d, How satisfied are you with th e quality of education
your oldest ch ild is receivin g? Would you say completely satisfied, somewh at satisfied, somewh at dissatisfied or completely dissatisfied?
52. See Robert Reich , Th e Liverwurst Solution : A Growin g Con sen sus on
Sch ool Ch oice, Address Before th e Manh attan In stitute New York City Conferen ce
on School Ch oice ( Dec. 2000) , available at h ttp:/ / www.manh attan -in stitute.org/
h tml/ mics4.pdf ( advocatin g th e use of vouch ers, but ackn owledgin g th at
[ v] ouch ers alon e if you are not givin g more mon ey to poor ch ildren than ch ildren of h igher-in come paren ts, if you are n ot settin g stan dards for sch ools to
ach ieve to be eligible for vouch ers are just goin g to en d up sortin g American
ch ildren even more ) ; Robert Reich , The Case for `Progressive' Vouchers, WALL ST . J.
( Sept. 6, 2000) at A26.
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NYU ANNUAL SURVEY OF AMERICAN LAW
11-AUG-03
9:57
[ Vol. 59:477