By a single vote, over 87,000 children were given an educational reprieve last Wednesday by the Ohio Supreme Court, which ruled that public charter schools are constitutional. But the narrowly rejected legal theory remains alive, a cancer that threatens to destroy education reform around the nation.
Over one million children in 41 states attend charter schools -- semi-autonomous public schools that are freed from stifling requirements and offer distinctive educational environments geared toward the special needs or interests of particular students. Although experts differ over the academic quality of charter schools as a whole, a disproportionate number of the nation's top public schools are charters, and charters often provide important alternatives for children who are not performing well in traditional settings.
It is beyond dispute that where traditional public schools are faced with meaningful competition from public charter schools, or from private schools whose students receive public funds, the performance of traditional public schools improves. But competition from nonunionized public charter and private schools threatens those who have a pecuniary stake in the status quo; and they are determined to snuff it out by any means necessary.
The cudgel wielded against Ohio charter schools was a section of the state constitution that directs the legislature to "make such provisions" as "will secure a thorough and efficient system of common schools throughout the state." No one disputes that the legislature has done just that: Charter schools were added as an option to pre-existing common schools that are available to every Ohio child, as Justice Judith A. Lanzinger explained in her majority opinion.
But Justice Alice Robie Resnick's dissenting opinion found, in the constitutional guarantee of "thorough and efficient" schooling, an unwritten constraint against the legislature enacting "something other than a system of common schools." The charter-school law, Ms. Resnick asserted, "effects a schismatic educational program under which an assemblage of divergent and deregulated privately owned and managed community schools competes against public schools for public funds." Decrying the fact that charter schools are "free to adopt their own specific instructional approaches, educational goals and philosophical agendas," she further opined that the very purpose of the education clause was "to bring order to the chaos of individualized approaches."
Ms. Resnick confuses the means -- common schools -- with the end they are supposed to serve: thorough and efficient education. The court's majority noted that charter school students must take the same proficiency and graduation tests as other public school students, but acknowledged that the schools are free from certain other state rules. "In exchange for enhanced flexibility," the court explained, "community schools face heightened accountability to parents and sponsors," who can shut them down if they are dissatisfied. "Traditional schools, on the other hand, may not be shut down no matter how poorly they perform."
Unfortunately, the education establishment's defeat in Ohio does not spell an end to the litigation campaign against public and private school choice. Shortly before the U.S. Supreme Court (in 2002) upheld the Cleveland school voucher program against claims that it constituted an establishment of religion, National Education Association legal counsel Robert Chanin said at a forum in New York that the union had an entire legal "bag of tricks" at its disposal, including "Mickey Mouse" constitutional provisions such as the one used in Ohio.
Most state constitutions contain education guarantees that can be twisted to thwart the interests of schoolchildren. The argument that all publicly funded education must be "uniform" was first used against the Milwaukee school voucher program. The Wisconsin Supreme Court rejected that claim in 1998, ruling that its state constitutional guarantee of uniform access "provides not a ceiling but a floor upon which the legislature can build additional opportunities for school children in Wisconsin."
But the unions hit pay dirt last January, when the Florida Supreme Court construed that state's guarantee of a "uniform" and "high quality system of free public schools" to preclude a school-choice program. The court held both that "free public schools are the sole means set out in the Constitution for the state to provide for the education of Florida's children" and that all publicly funded schools must be 'uniform' when compared with each other or the public system. Read literally, the Florida court's ruling would forbid any type of educational diversity -- magnet schools, charter schools or private school scholarships -- no matter how far traditional public schools stray from their "high quality" mandate.
So construed, the constitutional guarantees would impose a straitjacket when millions of children desperately need the constraints loosened and every possible option made available. A mandate of uniformity separated from the underlying goal of quality education is anathema to school choice.
Despite the flimsiness of the Florida court's logic and its dire ramifications, the closeness of the Ohio Supreme Court vote suggests that the precedent may spread. Already, Arizona's recently enacted private scholarship program for children of modest means has been challenged on uniformity grounds; and the Florida teachers unions are gearing up for challenges to the state's remaining school-choice programs, including a voucher program for disabled children.
It is increasingly clear that the interests of the public charter-school movement and the private school-choice movement -- which have proceeded in parallel but never in united fashion -- are aligned. As the Ohio litigation demonstrates, those whose interests are served by the status quo are determined to destroy school choice in all its forms. All forms of school choice, in turn, must be defended in order that any school choice can flourish.
Though educational uniformity has emerged recently as a primary device to stifle education reform, it is nothing new. Nearly a century ago, the Ku Klux Klan and other nativists sought, nearly successfully, to ban private schools established by Catholic immigrants in the name of educational uniformity. The U.S. Supreme Court repudiated those efforts and proclaimed the right of parents to control their children's education. Judges faced with similar arguments today need also to reject arguments that would destroy parental choice for the sake of those whose motives are far from noble.
Mr. Bolick is president and general counsel of the Alliance for School Choice, and a senior fellow with the Goldwater Institute. He is a recipient of the 2006 Bradley Prize.