Five years ago, in Zelman v. Simmons-Harris, the U.S. Supreme Court upheld the constitutionality of a Cleveland program that provided school vouchers to low-income parents seeking private school alternatives for their children. Zelman was heralded as of great historical significance when it was decided. Yet, in the years since Zelman, school vouchers have made little political headway—only three jurisdictions have adopted voucher plans, and proposals have failed in over thirty-four states.
This Article examines why school vouchers have failed to garner the support that so many assumed would follow the Court’s decision in Zelman. The explanation, I suggest, concerns religion, race, and politics. The original rationale for vouchers was what I call the "values claim"—vouchers protected the right of parents to send their child to a school that reinforced their values. Originally promoted by Catholics, the values claim was adopted by evangelical Christians concerned about the secularization of public schools after the 1960s. Although the values claim was central for most of the history of the voucher movement, in the decade leading up to Zelman, voucher advocates replaced the values claim with what I call the "racial-justice claim." This rationale emphasized vouchers as part of a civil rights struggle to obtain academically rigorous private education for low-income and minority parents. Redefining vouchers in this manner had political and legal advantages, and paved the way for the Court’s decision in Zelman upholding vouchers.
Since Zelman, however, two trends have emerged that spell trouble for the future of the voucher movement. First, there are tensions between the values and racial-justice claims for vouchers, as the two claims lead to very different types of voucher programs that appeal to divergent political constituencies. Second, the voucher movement has been hurt by the rise of the accountability movement in education. No Child Left Behind was enacted the same year that Zelman was decided, meaning that the Court gave the green light to the voucher movement at exactly the same time that state and national education policy began to demand greater oversight of all schools, including private schools accepting vouchers. For schools today, accountability means less local control, more tests, and stricter government standards. Conservative Christians, who once led the voucher movement, reject these intrusions into school autonomy. As a result, they are less likely to support modern voucher programs.
My approach in this Article is historical, predictive, and normative. It is historical in that I trace the development of the values and racial-justice claims for school vouchers, exploring the tensions between the two claims. It is predictive because I suggest that the future of this educational reform is much less rosy than voucher supporters thought when Zelman was decided. Thus, I predict that Zelman may end up mattering much less than so many had thought it would. Finally, my approach is normative for I argue that it would be unfortunate if I am right about the demise of vouchers. While voucher defenders have vastly overstated the racial-justice claim, there is some prospect that vouchers might improve educational outcomes for low-income African American children. I argue that vouchers should be permitted at least until they can be more thoroughly evaluated to determine their impact on a group so in need of better educational opportunities.