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81–748 PDF








SEPTEMBER 17, 2002

Serial No. 101

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://www.house.gov/judiciary

HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
BOB BARR, Georgia
LINDSEY O. GRAHAM, South Carolina
MARK GREEN, Wisconsin
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
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LINDSEY O. GRAHAM, South Carolina
MELISSA A. HART, Pennsylvania,
  Vice Chair

BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
MELVIN L. WATT, North Carolina

KRISTEN SCHULTZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member


SEPTEMBER 17, 2002

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    The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution

    The Honorable Barney Frank, a Representative in Congress From the State of Massachusetts


Mr. Douglas Laycock, Associate Dean for Research and Alice McKean Young Regents Chair in Law, the University of Texas School of Law, Austin, TX
Oral Testimony
Prepared Statement

Mr. Richard Komer, Senior Litigation Attorney, The Institute for Justice, Washington, DC
Oral Testimony
Prepared Statement

Rev. Timothy McDonald, III, Pastor, First Iconium Baptist Church, Atlanta, GA
Oral Testimony
Prepared Statement

Ms. Cleaster Whitehurst-Mims, Marva Collins School, Cincinnati, OH
Oral Testimony
Prepared Statement

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Material Submitted for the Hearing Record

    Prepared Statement of Albert J. Menendez, Research Director, and Edd Doerr, President, Americans for Religious Liberty

    Prepared Statement of Richard T. Foltin, Legislative Director and Counsel, The American Jewish Committee



House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to call, at 2:05 p.m., in Room 2237, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.

    Mr. CHABOT. The Subcommittee on the Constitution will come to order. I am Steve Chabot, the Chairman.
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    Every child in America deserves a high-quality education, regardless of family income, ability or background. If children are not learning and schools do not improve, parents should have options, including sending children to better public schools, charter schools or private or parochial schools. On June 27, 2002, the United States Supreme Court upheld Ohio's school choice program giving families nationwide more options in providing their children with a high caliber education.

    The purpose of this hearing here this afternoon is to examine how the Supreme Court decision clarifies Congress' authority to enact choice programs in which Government aid, through the free choice of individual citizens, can be used to allow citizens access to the very best educational and social service services our Nation has to offer.

    In Zelman v. Simmons-Harris, the Supreme Court summarized its prior precedents and stated, ''Where a Government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct Government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the Government whose role ends with the disbursement of the benefits.''

    The Supreme Court held that the Ohio school choice program, ''is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.''
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    Indeed, Ohio's school choice program was upheld even though 96 percent of the students participating in the program enrolled in religious schools.

    Justice O'Connor wrote a concurring opinion in which she backed the majority opinion fully, criticized the dissent at length and characterized the dissent's claims as ''alarmist.'' In his concurring opinion, Justice Thomas emphasized the uniquely liberating nature of education by noting the words of Frederick Douglass, who wrote as follows: Education means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free. Douglass also observed that ''no greater benefit can be bestowed upon a long benighted people than giving to them, as we are here earnestly this day endeavoring to do, the means of an education.''

    It is now the law of the Land that Government has the authority to empower individuals who seek excellence through educational and social services provided by the Nation's people of faith. Government aid through vouchers and other forms of indirect assistance is not only constitutional but also a most promising means toward empowering the most desperate in our Nation to choose the best educational and social services available, including services provided by people of faith.

    The Zelman decision has been widely hailed. As the Washington Post wrote in a lead editorial, and I will quote from that, ''in fact, our quarrel with the Cleveland program would be that the vouchers are too small. Imagine how much competition might be generated and with what respect poor parents might be treated if they were given an $8,000 voucher for each child and public schools really had to prove they were worth what society now spends on them.''
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    And that was the quote from The Washington Post.

    And as the Secretary of Education has written, ''It is difficult to overstate the importance of the Supreme Court's decision yesterday in Zelman v. Simmons-Harris. It adds momentum to two of President Bush's policy preferences: increasing education choices and options for parents, and leveling the playing field for faith-based organizations to compete for Federal dollars to run educational and community service programs.''

    H.R. 7, the Community Solutions Act, passed the House last year but remains stalled in the Senate. H.R. 7 contains provisions authorizing the administration of a wide array of Federal programs through vouchers and other forms of indirect assistance. H.R. 7 defines indirect assistance as assistance in which an organization receiving funds through a voucher, certificate or other form of disbursement receives such funding only as the result of the private choices of individual beneficiaries. The Supreme Court has now reaffirmed the constitutionality of precisely those forms of Government assistance in which aid is directed to religious organizations as a result of private choice.

    It is up to Congress to fulfill the promise of the Supreme Court's decision. This hearing will start a discussion of Congress's ability to do so.

    Before closing, I would like you to listen now to some prophetic words. ''Regardless of family financial status, education should be open to every boy or girl in America. New methods of financial aid must be explored, including the channeling of Federally collected revenues to all levels of education and, to the extent permitted by the Constitution, to all schools.''
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    Those words were penned by social scientist and Democratic Senator Daniel Patrick Moynihan. They were also part of the 1964 Democratic Party platform.

    I look forward to working with Members of both parties to enact true choice programs, including those provided for in H.R. 7, the Community Solutions Act; and I now yield to Mr. Frank, the Ranking Member today on the Subcommittee.

    Mr. FRANK. Thank you, Mr. Chairman.

    This hearing is very interesting, not from the standpoint of constitutional law, the Supreme Court having already given its decision, but institutionally it is the oddest hearing I have been at in 22 years because I have no idea what we are doing. The Chairman of the Subcommittee said it is to begin a discussion of the issue. We should be clear that this Subcommittee and indeed this Committee has zero jurisdiction over the subject at hand.

    It is true that the Supreme Court made a decision. The notion of us doing oversight on at Supreme Court decision is a very interesting one. If we were in fact to be unhappy with the Supreme Court decision, I am unsure as to what we could do, short of wanting a constitutional amendment. But assuming that the Supreme Court will be reassured to know that this Subcommittee stamps their approval on their 5 to 4 decision, the question is what is this hearing about.

    The Committee on Workforce and Education—it used to be the Committee on Education and Labor before Republican political correctness excised the word ''labor'' from the official lexicon and substituted ''workforce,'' suggesting, I think, a more quiescent group of workers—and it is up to that Subcommittee to do this. So we have a zero institutional role in whether or not there is such a program. So we have no jurisdiction to overturn the Supreme Court, although the majority does not want to do that. We have no jurisdiction to act under the authority the Supreme Court has provided.
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    So we are here, quote, to begin a discussion. I find that an interesting function for a congressional Subcommittee—to run a seminar, apparently, that is what we are doing. And it is, I suppose, as pleasant a way to pass a Tuesday afternoon as many others that might have occurred to people. But no one should confuse it with any official piece of legislative business.

    Secondly, though, I did want to make one substantive contribution to this seminar; and the Chairman did allude to references to wouldn't it be nice if there was more money, et cetera. My view is this: I have been opposed to the voucher program. If it were, in fact, to be an entitlement program, I would think differently of it. My problem with it is in part at every level I have seen it is funded for a scarce number of people. It is motivated in part by the notion that the public schools are not doing a very good job and then, due to fiscal constraints, fund enough vouchers for a fairly small number of people to leave those schools.

    If in fact the voucher concept has merit and if in fact one believes in equality of education, then every voucher program ought to be an entitlement for every student in those grades. The problem, of course, is that that would cost money. And money means taxes. And so we have this dilemma where those who promote the voucher system, it seems to me, are in fact talking about what it would be, if it were carried out conscientiously, a quite expensive program. The resources aren't there.

    So a voucher program which entitled a few who are picked and chosen to leave and leaves the rest behind strikes me even on its own terms as likely to do more harm than good, and a voucher program that lived up to what some of its ardent proponents say would be an interesting one.
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    I have yet to see anybody propose that level of financing. Maybe there are some local communities which have thoroughly done it. It is certainly not the case that the Federal Government has been prepared to do that.

    So, with that, I will now return to the original point which is I do think this is a very interesting idea, but, again, I don't want anyone to be misled and no one should think that any legislation whatsoever will or could come from this afternoon's hearing. But I must say, given some of the legislative hearings of this Committee which I have attended, that is probably very good news.

    Mr. CHABOT. Thank you, Mr. Frank—I think.

    Our first witness is H. Douglas Laycock. Professor Laycock holds the Alice McKeon Young Regents Chair in Law, and he is Associate Dean for Research at the University of Texas School of Law at Austin. Professor Laycock is a leading scholar on the law of religious liberty. He has argued many cases on religious liberty, including cases before the United States Supreme Court.

    Professor Laycock is also a member of the American Law Institute and an elected fellow of the American Academy of Arts and Sciences recently a coauthor of a joint statement of church-state scholars on school vouchers and the Constitution for the Pew Forum on Religion and Public Life.

    We welcome you here this afternoon.
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    Our second witness is Richard D. Komer. Mr. Komer serves as a senior litigation attorney at the Institute for Justice. He has litigated school choice cases in both Federal and State courts. Prior to his work at the Institute, Mr. Komer worked as a civil rights lawyer for the Federal Government, working at the Departments of Education and Justice as well as at the Equal Employment Opportunity Commission as a special assistant to the Chairman, Clarence Thomas. His most recent Government employment was as Deputy Assistant Secretary for Civil Rights at the Department of Education.

    We welcome you here this afternoon.

    Our third witness is Reverend Timothy McDonald III, a pastor at the First Iconium Baptist Church in Atlanta, Georgia. Reverend McDonald joined People for the American Way Foundation's Board of Directors in May, 1995. In 1997, he became Chair of the Foundation's African American Ministers Leadership Council. He is also President of Concerned Black Clergy. Reverend McDonald has been honored by the United Negro College Fund and the American Cancer Society for exceptional volunteerism, and he was named Humanitarian of the Year by the Citizen Coalition for Growth.

    We welcome you here this afternoon, Reverend.

    Our fourth and final witness is Cleaster Whitehurst-Mims. Ms. Whitehurst-Mims has dedicated her life to public service for more than 40 years. Ms. Whitehurst-Mims founded a private school in 1990 in the basement of a Silverton church with 43 students. In 1993, it moved to the former Cincinnati Hebrew Day School in Roselawn with enrollment of 120 students. Today, the school has more than 200 students in grade pre-K through 8th grade.
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    On a personal note, I might note that I have personally visited the school several times, have spoken to the kids and have been greatly impressed by the great work that Ms. Mims has done there with the kids. Having been a schoolteacher myself for a few years and taught in an urban school, I was most appreciative of seeing the great job that she has done with these children.

    Prior to that, Ms. Whitehurst-Mims taught in the Cincinnati public school system from 1970 to 1991, 21 years. She has also been a professor at Xavier University also in Cincinnati. She was the author of several publications, including 'A Black Mother's Agony in 1981 and A Man with a Purpose: Martin Luther King in 1983. Ms. Whitehurst-Mims has received numerous awards, including the Cincinnati Inquirer's 1990 Woman of the Year award; and she was recognized as one of President George Bush's Thousand Points of Light for outstanding work in the community. She was also awarded the President's Service Award in 2000.

    Thank you again all for being here with us this afternoon. I would ask that you please try to summarize your testimony in 5 minutes or less; and, without objection, your written statement will be made a part of the permanent hearing record. Also without objection Members may submit additional materials for inclusion in the hearing record within 7 legislative days. We look forward to hearing from all the witnesses here this afternoon.

    I might make a note we have a lighting system. When 4 minutes are up, the yellow light will come on, which means you have 1 minute to hopefully wrap up. When the red light comes on, we would appreciate if you would bring your testimony to a close shortly thereafter.

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    Mr. CHABOT. We will start with Mr. Laycock.


    Mr. LAYCOCK. Thank you, Mr. Chairman. I have submitted a brief personal statement and also the joint statement of eight different scholars on the meaning and what comes next after the Supreme Court's voucher decision, and I should be clear that neither the University of Texas nor the Pew Forum on Religion and Public Life endorses either of those statements or takes any position. These are the statements of the eight scholars who wrote them.

    The decision in Zelman I think is a substantial consolidating win for the pro-voucher side in the sense that the opinion is clear. It has five votes. The fifth vote does not write a separate opinion with reservations and qualifications, as has happened often in the past. The opinion is a clear answer to the one issue before the Court about the structure of voucher programs for schools under the Federal Establishment Clause. It is not an answer to many other questions that may face the Congress and State legislatures down the road.

    The Court has said a school voucher plan is constitutional federally if it is religiously neutral, and they define religious neutrality as meaning the beneficiaries have to be picked without regard to religion. The schools or other institutions that take the vouchers have to be picked without regard to religion, and there cannot be any incentives in the structure of the program that encourage parents to choose through religious option rather than the secular option. The schools of choice has to be left to the individual parents, and there have to be genuine secular choices available. That is the blueprint for writing school voucher plans.
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    Given the structure of the public school system, it should be possible in most jurisdictions for a legislature who wants to conform to that blueprint to do so.

    Down the road there are a large set of State constitutional issues about these programs that will affect State programs. Because of the Supremacy Clause they do not affect congressional programs. You are not subject to State constitutional limits.

    Also down the road there will be continuing debate and undoubtedly litigation about the issue of conditions that are attached to vouchers, regulations imposed on the schools or other charities that accept vouchers. Can they be required, for example—an example very familiar to the Congress—to surrender their right to prefer of their own faith in their hiring decisions and so forth?

    Zelman doesn't say anything about that case, those issues. It was not before the Court. And the eight of us who wrote about it obviously could not agree on that. Some of us think that Congress has no power to require charities to surrender the constitutional rights as a condition of receiving money, and others think just as strongly that Congress must impose those kinds of nondiscrimination conditions.

    Zelman is not an answer to that very important question, and undoubtedly there will be more litigation.

    Zelman is written in the context of schools. I believe its principles are fully applicable to other charities, to the kinds of social service programs that are at issue in H.R. 7. Some of the eight of us had some doubts about that, but I think principally those doubts went to facts rather than law.
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    The structure of other charitable and social service programs is often rather different from the structure of schools. In the school situation, every State guarantees that it will provide an education for every child. It may do it well, it may do it badly, but it doesn't turn kids away because the school is full.

    With most other Government-funded social services we do turn people away because the program is full. We have not undertaken to guarantee universal access to other kinds of social service agencies, and that means it is somewhat more difficult to comply with the requirement that there be a genuine choice of secular or religious providers. If there is a shortage of beds for drug addiction treatment already and if people are on long waiting lists and if people are turned away, then it is all that more difficult to guarantee that an addict who is seeking treatment has a genuine free choice of religious or secular provider.

    So making Zelman work in the context of other social services may require some expansion of the number of providers and the number of seats available in those programs. So Zelman is a very important win on the Federal constitutional issue for supporters of vouchers, but it leaves many questions remaining down the road that Congress has debated and that undoubtedly the courts will eventually be asked to pass on.

    Mr. CHABOT. Thank you very much, Professor.

    [The prepared statement of Mr. Laycock follows:]

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    Mr. CHABOT. Mr. Komer.


    Mr. KOMER. Thank you, and thank you for inviting me to be here today.

    I approach this in a slightly different perspective than Professor Laycock since I am not an academic. I am a practitioner and have spent much of the past 10 years defending school choice programs or trying to expand existing school choice programs, to return religious options to those programs.

    For us, Zelman was, of course, an enormous relief. We had 4,400 kids who had escaped failing public schools and were faced with the prospect that they would have to return to those schools if the Sixth Circuit decision was left standing.
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    I would like to emphasize three points. These are all in my testimony.

    The first is that the Zelman decision is not a big departure from past precedents of the Supreme Court. There has been a series of decisions from the Supreme Court spanning at least 15 years that have led to the Zelman decision. There is probably not a single concept or principle espoused in this decision that is not, in fact, taken from one of those prior cases. In fact, the original decision that the other side uses to argue that Zelman is a departure contains a specific reservation in footnote 38. This is the Nyquist decision which reserved the question that was at issue in Zelman. So, we don't believe the Zelman decision, contrary to some of the storm from the other side, represented any sort of major departure from the past Establishment Clause precedent.

    Secondly, in resolving the Establishment Clause question, Zelman allows a new public policy debate over vouchers without the cloud of the alleged constitutionality of vouchers hanging over it. This is an immense improvement in the public policy environment from our point of view, but, as Congressman Frank has so pungently pointed out, that issue is really in a different Committee's jurisdiction, which is are vouchers a good thing, should Congress be supporting vouchers, and is not the question of are vouchers constitutional anymore.

    The third point I would like to make is that there are continuing legal and constitutional questions with respect to vouchers, but they involve State constitutions, not the Federal Constitution. As Professor Laycock has pointed out, virtually all State constitutions contain religion clauses, and many State supreme courts or legislatures have interpreted those provisions in an overly broad and overly restrictive fashion, an interpretation that we believe actually infringes upon federally protected constitutional rights, especially under the Religion Clauses, the Equal Protection Clause and the Freedom of Speech Clause.
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    These overbroad interpretations of State constitutions will ultimately result, in our view, in a second Supreme Court decision which will have to address the extent to which State constitutions can restrict religious liberty more so than the Federal Constitution. We fully anticipate that that process will take a very long time.

    We have seen an earlier example of precisely this sort of issue coming up, and the Supreme Court declined to review it. For those of you who may recall, in 1996, in its only unanimous Supreme Court decision on the topic of the Establishment Clause, the Supreme Court held that Mr. Witters from Washington State could use his vocational rehabilitation money to become a minister at a religious college.

    The Washington State Supreme Court, on remand from the U.S. Supreme Court, interpreted the State's Blaine amendment to prohibit him from using his voc rehab money to become a minister. The U.S. Supreme Court then declined to review that, and Mr. Witters thus—I believe he did become a minister, but he did it with his own money.

    This is an example of what I consider an overbroad interpretation of a State religion clause and one which will ultimately have to be resolved by the Supreme Court of the United States before school choice programs can be implemented or considered without unconstitutional problems or problems of constitutionality throughout the United States.

    Thank you.

    Mr. CHABOT. Thank you very much.
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    [The prepared statement of Mr. Komer follows:]












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    Mr. CHABOT. Reverend McDonald.

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    Rev. MCDONALD. Thank you, Mr. Chairman and other Members of the Committee for allowing me to come.

    I certainly appreciate your opening comments and those of Representative Frank, particularly in regards to this hearing and what powers actually this Committee has. Nevertheless, I want this to be clear, that what we are discussing here is vouchers. We cloud it under the auspices of choice, but what we are talking about is vouchers and whether or not, given the Supreme Court decision, vouchers should be nationalized; and certainly I would have serious reservations about that.

    Nevertheless, Congress already has a number of programs under its wings regarding choice that it is not funding, that being No Child Left Behind programs, charter school programs and others; and it behooves me to see that we are now considering this whole notion of nationalizing vouchers.

    The Supreme Court decision was not about providing choice to parents but whether the Cleveland choice voucher program was structured in such a manner to not violate the first amendment Establishment Clause. Since parents are given the vouchers in the Cleveland program, the narrow vote of 5 to 4 in the Supreme Court ruled that they, not the Federal Government, should be the ones choosing to send their children to religious schools. By that we are meaning parental choice. In spite of the fact that this ruling is contrary to decades of law that define the relationship between the church and State, the Court stated that there was sufficient parental choice present in the Cleveland voucher program to not violate the Establishment Clause of the first amendment. However, the Court did not discuss whether voucher programs in general would withstand constitutional scrutiny nor whether the Federal Government should enact similar programs nationally.
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    Even before the ruling of Zelman, voucher proponents made the misleading claim that they were interested in providing choice to parents and to students. However, this Congress should not pursue vouchers because vouchers do not provide true choice to all parents nor to all students. Vouchers could never provide true choice to parents. Private schools were established to be selective in their admission policy, thus giving choice to the private schools and not to the parents, contrary to some belief. Unlike public schools, private schools are not required to adhere to Federal guidelines requiring that any institution in receipt of Federal funds abide by Federal guidelines, required that any institution would do that which the Government requires of them.

    In the Cleveland program, we have to be very clear about what is being said. We do not exclude special education students, and we understand that the Cleveland program has on occasion done that. Furthermore, voucher schools, unlike public schools, may and do expel students easily so that large numbers of students in the program 1 year simply disappear the next year.

    While many of the witnesses here today may espouse the effectiveness of voucher initiatives, I intend to reveal the underlying intent of many voucher programs across this country that purport to help African Americans in particular, and they are always using us—as an African American minister and pastor of a predominately African American church, I hear quite often all of these claims about the benefits of vouchers. Voucher proponents want to claim that the so-called competition created by vouchers would force public schools to improve. Be it far from us. Nevertheless, this is a hollow claim. In fact, research better supports the claim that accountability, testing and increased resources lead to public school improvement, not so-called competition created by vouchers.
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    Education is not a competition, with only some students winning and the rest losing. Diverting money from public schools through the use of vouchers hurts the very students who rely on the promise of public education. Vouchers affect only a select few, and therefore the many, particularly African Americans, are left behind.

    For example, while the United States Supreme Court may have declared Cleveland's voucher program constitutional, the Court did not dispute the fact that this program has cost taxpayers over $43 million. The same is true for Milwaukee.

    The private school vouchers are not practical. Voucher initiatives would do little to nothing to help the majority of students because private schools were not created to fulfill the duties of educating all of America's students.

    Voucher initiatives have failed to require participating schools to adopt academic standards like those adopted under No Child Left Behind, nor do they require participating schools to hire qualified teachers or hold the same standard of requirements of participating schools in the public school system. Voucher proponents are not willing to hold private schools to the same kind of standards and accountability that they demand of our public schools.

    For this instance and for many others we are certainly in opposition to this. We have learned in Michigan and we also learned in California that African Americans overwhelmingly vote against vouchers when given an opportunity. In Michigan, it was almost 5 to 1 African Americans in opposition; and in California Latinos were pretty much the same.
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    Therefore, the fact is that we know a lot about the proven reform programs that work, we know what doesn't work, and I would hope and pray that as we look at this issue in this Congress that we would look at reducing class sizes, that we would look at making sure that teachers are qualified, have the resources that are necessary, so that we can make sure that we leave no child behind.

    Mr. CHABOT. Thank you, Reverend.

    [The prepared statement of Rev. McDonald follows:]


    Good morning, Mr. Chairman and members of the Committee, and thank you for allowing me the opportunity to testify today before this Subcommittee on the Constitution's oversight hearing on the Supreme Court's voucher decision and Congress' authority to enact voucher programs. My name is Reverend Timothy McDonald and I am a member of the Board at People For the American Way—a citizens' organization dedicated to protecting constitutional and civil rights, improving public education, and promoting civic participation. As the Chair of the African American Ministers Council, the representative of a large African American congregation and community activist, I am vitally concerned with preserving and improving our nation's system of public education so that all children learn and achieve and, so that no child is left behind.

    While I am aware that this hearing has been convened to discuss Congress' ability to enact school choice programs in light of the recently decided Supreme Court decision Zelman v. Simmons-Harris, I question the need for such a hearing. The federal government already provides school choice through policies like those in the recently enacted No Child Left Behind Act and through current charter school policies. On the other hand, I suppose that there is a need to discuss the federal government's role in supporting current school choice programs since the current Administration will not even fully fund the programs in the No Child Left Behind Act and has failed to increase the basic funding for charter schools.
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    Nevertheless, since Congress already has the ability to enact school choice programs, I can only assume that this hearing must be about Congress' role in enacting voucher programs. Consequently, I will focus my comments accordingly.

Zelman v. Simmons-Harris

    The Supreme Court's decision was not about providing choice to parents, but whether the Cleveland voucher program was structured in such a manner to not violate the First Amendment's Establishment Clause. Since parents are given the vouchers in the Cleveland program, the narrow 5–4 majority of the Court ruled that they, not the federal government, were the ones choosing to send their children to religious schools, i.e. ''parental choice.'' Despite the fact that this ruling is contrary to decades of law defining the relationship between the church and state, the Court stated that there was sufficient ''parental choice'' present in the Cleveland voucher program to not violate the Establishment Clause of the First Amendment. However, the Court did not discuss whether voucher programs in general would withstand constitutional scrutiny nor whether the federal government should enact similar programs nationally.

School Choice

    Even before the ruling of Zelman v. Simmons-Harris, voucher proponents made the misleading claim that they were interested in providing choice to parents and students. However, this Congress should not pursue vouchers because vouchers do not provide true choice to parents. Vouchers could never provide true school choice to parents. Private schools were established to be selective in their admission of students, thus giving choice to the private school and not the parent. Unlike public schools, private schools are not required to adhere to federal guidelines requiring that any institution in receipt of federal funds abide by federal anti-discrimination laws. As a result, at the insistence of voucher proponents, private schools would be able to maintain their current exemptions to certain anti-discrimination laws, and exclude students based on religion, gender, limited English proficiency and disability. For example, private voucher schools in Cleveland can and do exclude special education students. Further, voucher schools, unlike public schools, may and do expel students easily, so that large numbers of students in the program one year simply ''disappear'' the next year.
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    Additionally, proponents often insist that vouchers enable taxpayers to better control their child's education. Yet, many students with vouchers will still be ineligible or unable to attend many private schools with long waiting lists and restrictive admission standards. A 1998 report from the U.S. Department of Education found that 85% of large central city private schools surveyed would ''definitely or probably'' not be willing to participate in a voucher program if they were required to accept ''students with special needs such as learning disabilities, limited English proficiency, or low achievement.''

Diversion of Public Resources

    While many of the witnesses here today may espouse the effectiveness of voucher initiatives, I intend to reveal the underlying intent of many voucher proposals across this country that purport to help African American students. As an African American minister of a predominately African American congregation, I am well aware of the tales often told to my parishioners about the wonderful opportunities voucher initiative present to our community. Voucher proponents claim that the so-called competition created by vouchers will force public schools to improve. Nevertheless, this is a hollow claim. In fact, research better supports the claim that accountability, testing, and increased resources lead to public school improvement, not so called competition from vouchers.

    Education is not a competition, with only some students ''winning'' the competition. Diverting money from public schools through the use of vouchers hurts the very students who rely on the promise of public education. Vouchers affect only a select few while leaving the overwhelming majority of students behind in underfunded public schools. Thus, voucher programs only serve to funnel federal taxpayer dollars to sectarian schools and mislead parents about the options they provide. If the intent were to truly help low-income African American students, then priority would be given to funding those schools educating the majority of African American students—public schools. Instead, voucher programs rob the majority of African American public school students, and students in general, of precious resources.
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    For example, while the U.S. Supreme Court may have declared the Cleveland, Ohio voucher system constitutional, the Court did not dispute the fact that this program has cost taxpayers over $43 million. The vast majority of these funds was taken from disadvantaged pupil impact aid that otherwise would have gone to the most disadvantaged children in the Cleveland public schools. In addition, Wisconsin taxpayers paid $61 million to fund the Milwaukee voucher program for two years (1998–2000). Consequently, Milwaukee's public schools were forced to cut spending by roughly $45 million over two years. By the 1999–2000 school year, at least 60 percent of Wisconsin superintendents reported that budgetary constraints had forced them to cut school maintenance and improvement funds.

    Moreover, private school vouchers are not practical. Voucher initiatives will do little to nothing to help the majority of students because private schools were not created to fulfill the duties of educating all of our nation's students. For instance, in my state of Georgia, Governor Roy Barnes does not support private school vouchers because they are not capable of serving the majority of students in the state. Instead, private school vouchers only serve to divert precious resources from the public school system that continues to educate 90 percent of our nation's children.


    Considering the new accountability measures in the No Child Left Behind Act, it is irresponsible for Congress to support proposals that direct public funds to schools over which the public does not exercise effective oversight. Exactly the same accountability should be demanded of schools accepting federal funds no matter if they are private or public. These methods should be allowed to work without the destructive false choice of private school vouchers. Voucher initiatives fail to require participating schools to adopt academic standards like those just adopted under No Child Left Behind Act, nor do they require participating schools to hire qualified teachers or uphold the same standard of facility maintenance. Voucher proponents are not willing to hold private schools to the same kind of standards and accountability that they demand of public schools.
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    For instance, there are serious accountability problems in the Cleveland voucher schools. Despite all the hoopla by supporters, an independent evaluation of the program has found no significant academic gains by voucher students. Individual voucher schools have had a number of problems. One school that was in the voucher program operated for two years despite the fact that its 110-year-old building had no fire alarm or sprinkler system, and was under a fire watch requiring staff to check for fires every 30 minutes. Lead-based paint, which can cause brain damage in children, was found in the school at a level eight times greater than generally regarded as safe. Additionally, the school had to repay nearly $70,000 in tax dollars because it was getting voucher money for students that were not in the school at all. Similar problems at another voucher school were compounded by clearly inadequate classroom instruction in which the school was effectively a video school where students sat in front of a TV and watched recorded lessons on screen. Clearly, accountability remains a serious problem in voucher schools and Congress should not be a part of sponsoring such unaccountability.

Public Opinion

    The claim is often invoked that African Americans support voucher initiatives; therefore, Congress should support voucher proposals to help the African American community. However, this is simply not true. A 2001 Zogby International poll offered African Americans five options for improving education. Among African Americans, the choice of ''providing parents with school vouchers'' finished dead last of the five options. In fact, African-Americans chose ''reducing class sizes'' over vouchers by a 7-to-1 margin. A 2001 poll conducted by the Opinion Research Corporation found that 61 percent of blacks and 59 percent of Latinos would rather see more funding ''go toward the public schools than go to a voucher program.'' Black America's Political Action Committee—a group chaired by the archconservative and pro-voucher Alan Keyes—released a poll in July 2002 that some are portraying as a sign that African Americans support vouchers. However, the poll asked black voters whether, if given the option, they would keep their children in regular public schools (45 percent) or enroll them in either a public charter school or a private school (48 percent). Because it lumps together charter schools (public schools with accountability standards) with private schools that have no required accountability standards, this poll, in fact, does not support the assertion that African Americans support private schools.
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    It is frequently said that the only poll that matters is on Election Day. At the ballot box, African Americans were instrumental in resoundingly defeating voucher initiatives in Michigan and California. African American voters in Michigan rejected vouchers by 77% to 23%. In California, Latino voters rejected vouchers by the same margin. Detroit voters turned down the voucher proposal by an 82–18% margin. What this tells us is that when voters are educated about the realities of vouchers, that they choose to invest in public schools so that the vast majority of the nation's children can receive a quality education, not just a select few.

Alternative Options

    Voucher initiatives undermine efforts to immediately and effectively address the needs of the majority of this nation's children by diverting precious funding away from public school reforms that have proven success rates.

    The fact is that we know a lot about some proven reform programs that work.

    In Wisconsin, for example, there's a program called Student Achievement Guarantee in Education (SAGE) that reduces class sizes in early grades in schools serving poor children. SAGE works. The evidence is clear that SAGE helps close the achievement gap between white and minority students—with long-lasting results. You would think that with that kind of proven result, public officials would be falling over themselves to replicate that success. Unfortunately it's not true. In Wisconsin last year, activists had to work hard to defeat a proposal by the governor to cut millions of dollars out of the SAGE program in order to expand Milwaukee's voucher program, which by contrast has no demonstrated proof of improving students' academic achievement in the long run.
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    Furthermore, successful initiatives like that in Wisconsin have encouraged additional class size reduction proposals that will bring better education to more students. People For the American Way is proud to be taking a leadership role, with the NAACP and other national and state organizations, in helping Florida State Senator Kendrick Meek amend the state Constitution to put limits on class size in Florida public schools. These are the types of initiatives that Congress should be involved in—initiatives that provide meaningful reform and opportunity for all children.


    Despite what proponents may say, vouchers have not been proven to accomplish meaningful reform, will not help the majority of African American children, and are not supported by the African American community at large. Vouchers merely divert public taxpayer dollars to private and religious institutions. On the other hand, there are immediate reforms that have been proven to work, such as smaller class sizes and teacher quality initiatives. As a board member of People For the American Way, I support ideas that truly provide effective public school educational options, particularly for low-income students, such as magnet schools, properly run charter schools, and even the recent provision in the No Child Left Behind Act that allows parents in chronically failing public schools the ability to transfer to better performing public schools. These methods can help provide quality public education, with accountability for educational performance and true choice by parents and students. These methods can and should be allowed to work.

    Mr. CHABOT. Dr. Mims.
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    Ms. MIMS. Thank you, Mr. Chabot and other Congressmen for having me here.

    I come to you this afternoon because I came to talk about this, but I also came to honor my parents. My mother always told her eight children, put God first and education second and of course you would be richly blessed. And she was true.

    I know that this is a discussion, as Mr. Frank has said. So I hope that some of the information I can share with you from a nonsectarian private school may help you in your future discussion.

    First, I want you to just imagine being stranded on an island and you see a big ship coming—whether it is entitlements or whether it is a voucher, something that would give you some kind of escape from educational—to educational freedom. Now just imagine that you are a crew member on that ship. You have the power to save a desperate people or let them perish. Would you continue the discussion or would you toss the wisdom of the judiciary branch about just for self praise?

    Today, too many parents, mostly black, are trapped on urban islands throughout this Nation. To them, education, no choice, is not a right-or-left issue. It is not about most of the things that I have heard here this afternoon. It is about human rights. It is an equal educational opportunity, the opportunity to access quality education and become literal leaders of this Nation, instead of failing leaners. It is an opportunity to become a principal rather than a prisoner. In fact, it is like Frederick Douglass said, it is freedom itself.
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    I am here to witness for the human side of this issue, the side that I have been working with for 13 years, the side where ordinary people unified, desired will energize an effort to create a school when there was no help. Out of desperation these people created a little boat, and we have sailed for 13 years to the urban shores, picking up one child at a time to educate them. We did not, as most people would claim, rescue only the academically talented. We accept children whose achievement levels spanned the continuum of the bell curve. Average students came for greater chance, brighter students came for a greater challenge, and those labeled slow, reluctant, attention deficit disorder and risk, special education, uneducatable all came for a greater expectation.

    Yashar Israel was a child like that. Yashar was trapped in a special education class which cost about $15,000 a year of public funds. She was then enrolled in Marva Collins Prep School. Because of volunteerism, we only charged them $2,700. For 5 years that parent only paid $13,500. Yashar after graduating entered another private school. She paid $4,000, this single-parent mother, for 4 years, which was $16,000. This child then graduated from high school at the top 10 percent of her—of the school, went on to college and graduated with a 3.8 GPA.

    What we need to know here is that this taxpaying mother, working two jobs, paid $29,000 for her child to attend school and saved the Government $135,000. There are many people out there like that. I could tell you many stories like Yashar's that are begging for whatever you have to give, whether it is discussion or whatever it is for them. That is why I am here today, to plead for the human side, not the right or the left.

    Thank you.
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    Mr. CHABOT. Thank you very much.

    [The prepared statement of Ms. Mims follows:]

    Mr. CHABOT. We appreciate the testimony of all the witnesses here this afternoon.

    At this point, the Members of the Committee have 5 minutes each to ask questions. I will begin with myself.

    Dr. Mims, let me ask you, using your school as an example, as I said I have been very impressed with what you have been able to accomplish there in the time that you have been working with the kids. How would your school benefit from a school choice program with respect to resources and what additional things would you be able to provide to the children in the Cincinnati area?

    Ms. MIMS. There would not be much more that we could give them, other than giving the parents a chance to come to the school. We don't want Government funds. We want the parents to be given the money in some way so that they can choose. Because I believe that if you can give a person food stamps to provide for their body and you do not stipulate what store they shop, then you certainly could make some kind of provision for especially the people I serve who are very, very poor. I have volunteered for 13 years of my life in order to help these children get the kind of education that they get and work full time at the university and then give the school half of my money in doing so we could benefit in that way.
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    Give the money to the parents and let them go where they choose to.

    Mr. CHABOT. Thank you.

    Let me ask you another question. Reverend McDonald, in his testimony and in his written testimony, he had stated private schools were established to be selective in the admission of students. In your experience and at your school and at schools that you are aware of, have you excluded children with learning disabilities or what has been your experience?

    Ms. MIMS. No, I have not. We take children first come, first served. People have heard about the program. We insist that people who have children who are on Ritalin come off the Ritalin, and we teach them, and people hear about the program, and they come, and we accept them. Every parent is interviewed by me, and I don't know of any children we have ever turned away.

    Mr. CHABOT. Thank you.

    Let me turn to Professor Laycock and Mr. Komer. The Reverend McDonald also had stated in his written testimony that the Supreme Court's ruling in Zelman, ''Is contrary to decades of law defining the relationship between church and State.'' In your opinion, and you mentioned that this somewhat in your testimony, but how faithfully did the Supreme Court opinion upholding the charter school choice program in Zelman track its prior decisions?

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    Mr. LAYCOCK. Well, I think this decision was plainly foreshadowed, and no one should have been really surprised by it. But the reality is that the Supreme Court opinions in this area were deeply schizophrenic for most of the last 50 years. They would repeatedly say, on the one hand, not one penny to any religious institution and, on the other hand, don't deprive any American citizen of a social welfare benefit because he chooses to make some choice about religion.

    I think it was that schizophrenia that led to the famous paradoxes that people joked about over the years: Books are okay, maps were bad, what about an atlas, in Senator Moynihan's line. Many of those paradoxes have been overruled now, and the choice side of that schizophrenia has emerged triumphant at least with respect to vouchers, still a little murky with respect to direct grants to the schools.

    But this opinion grows directly out of one line of what the Supreme Court has been saying for the past 50 years, and it is plainly the direction they have been moving. But they said inconsistent things as well ands that is what the dissenters were citing.

    Mr. CHABOT. Thank you.

    Reverend McDonald, you had asked—I think one of your concerns, as I understand it, is that your concern is that through school choice programs that money may be taken away from public schools, that they may suffer. The argument that many proponents of school choice and vouchers would make is that the competition is necessary and would be very helpful to public schools to have a more competitive environment—somewhat like in the business world where there is more competition and they would excel and that the students would benefit. Would you like to comment on that?
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    Rev. MCDONALD. Sure. I totally disagree with that argument, and it is based on fact. It is based on what we have seen in Milwaukee and what we have seen in Cleveland. When you only have a pot of money, whenever you take money out of that pot, place it in another, that means that this one that is left behind is going to suffer.

    It is clear to us that the majority of the students are in public schools, and that is a fact, and I don't care where you go—the majority. You are going to have the Marva Colleges who excel, who do beautiful kind of things and a small minority of students are going to benefit from that, Yashars and a few others. But for every Yashar there are 10,000 that are left behind.

    So to say that we are creating competition by this analysis of choice—I mean, the fact of the matter is the parents don't truly have a choice because the schools can decide and say and whether or not they accept or reject a particular child for whatever reasons there might be. And what the parents have are options but not—I think the whole idea of choice is a misnomer.

    Mr. CHABOT. Anybody want to respond on that competition issue? Mr. Komer.

    Mr. KOMER. I would like to just clarify a few of the supposed facts. In both the Cleveland and Milwaukee programs the students are selected by lotteries. They are not selected by the normal private school admissions process. So any school that participates in those two programs, which are now fairly large, participate by random selection of their students among the voucher applicants. So they have no ability to pick and choose.
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    Also, I would like to just mention that the voucher amount particularly in Cleveland, which is so small, is supplemented by the special education allotments that would otherwise be spent on the student. So that the voucher for a special needs student is, in fact, substantially larger in both programs, which helps to deal with the issue of the disincentive of admitting kids with special needs.

    I think the important thing to remember about competition—and in this I actually agree with Congressman Frank—that these programs are too small. I would be delighted to see them expanded and expanded greatly in both Cleveland and Milwaukee. I think it is a matter of fact and a matter of—that any objective observer would conclude that in Milwaukee the program is now large enough, enrolling over 10,000 students in a system that has perhaps 100,000 students, that in fact the public schools and the public school administration has begun to respond to the increased competition from the private sector which is engendered by the voucher program. They are in fact responding and responding in very positive ways, ways that they have never done absent the threat of losing kids to vouchers.

    Mr. CHABOT. Thank you. My time has expired.

    The gentleman from Massachusetts is recognized for questions.

    Mr. FRANK. Mr. Komer, you mentioned that I think in both Ohio and Milwaukee—Cleveland and Milwaukee the students were selected by lottery, is that correct?

    Mr. KOMER. Yes, sir.
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    Mr. FRANK. Suppose you had a system—there may be some—I am not an expert on this. Suppose you had a system whereby—let me ask this: The students are selected to get the voucher, but how about for admission to the schools?

    Mr. KOMER. They are admitted to the schools if there are more students than there are slots who have vouchers.

    Mr. FRANK. Do the schools have any discretion in who they take?

    Mr. KOMER. No, not within the universe of vouchers.

    Mr. FRANK. Suppose you had a voucher system where you had to apply as a student to a particular school and then once you got admitted you could go for the voucher. Would that be okay?

    Mr. KOMER. I suspect it would. I mean, there are——

    Mr. FRANK. Then let me ask this. We have to think about all the implications of this. What about a situation where you apply to a school and admission to the school was only open to people of a certain religion and you then got admitted to that school because of, among other things, your religion? Would a voucher program then be pose any constitutional problems? That is, I can only go to this particular school if I am of this particular religion. Would there be any constitutional problems in letting me use a publicly funded voucher to go to such a school?
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    Mr. KOMER. No, I don't think there would be.

    Mr. FRANK. It troubles me to see we would be funding a kind of discrimination in education based on the student's religion and saying that you would only be eligible——

    What about—Mr. Laycock, suppose we had only some religions running schools of that sort and not others. Would that cause any problems in that situation?

    Mr. LAYCOCK. I mean, that is a very hard question.

    Mr. FRANK. I am sorry, did someone tell you we were only going to ask easy ones? But it is an oversight of the Court. These are the kinds of implications that have to be considered.

    Mr. LAYCOCK. Absolutely. I didn't mean it was an unfair question. I meant I don't have a high degree of confidence in the answer I am going to give you.

    I think that the focus ought to be on the program as a whole. And if there are a broad range of options open to students in the program and if in general there are enough seats in the program, then it should not render the program unconstitutional if at some of the schools there is a religious preference in admission or even requirement. My understanding is relatively few schools say you have to——

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    Mr. FRANK. How about the constitutionality?

    Mr. LAYCOCK. What they say is they prefer their own. But clearly that question would be litigated, and the Supreme Court might disagree with me.

    Mr. FRANK. I sense a certain reluctance to say something specifically negative about a program that you are generally supportive of.

    I guess what bothers me about this is, well, okay, we will fund these schools that prefer their own. If people want to prefer their own, they have a right to do it with purely private funds. When you start publicly funding preferences of their own I get kind of nervous, and I think that this is not a time when we should be promoting that kind of situation.

    Mr. LAYCOCK. Up the funding and make the real choice available and I don't care about these pockets of preference.

    Mr. FRANK. I understand that. But we are not in that world, as you know. We are in a world in which there is inadequate funding. I have seen none of my conservative friends who are big voucher advocates talk about funding it federally, certainly on that level.

    Mr. Komer, I am interested in your call for the United States Supreme Court to be more active in striking down State supreme court interpretations of their own constitution. I am particularly impressed by the pages 10 and 11 where you talk about Blaine amendments which 38 States, I think you said, have.
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    It says, the Blaine amendment is the result of some outright religious bigotry and they are a product of raw religious bigotry. They must not be permitted to perpetuate the legacy.

    In other words, because you disapprove of these amendments and of the historic circumstances in which they were produced, you want the United States Supreme Court to go into these States and knock them out or render them relatively light in impact. Most States can amend their constitutions fairly easily, much more easily an the Federal Constitution, mainly by referendum.

    I guess you are entitled to the position. I would think some of my conservative friends who believe in States rights and are worried about judicial activism would be a little nervous about a position that says, look, these are lousy amendments, and we don't like the way they were adopted, and they stand for prejudice, go get 'em, Scalia. Do you think that some people might be uncomfortable with that?

    Mr. KOMER. First, I would like to take a moment to——

    Mr. FRANK. We don't have time. Answer that one first, and if the Chairman cuts you off he can cut you off on the other one.

    Mr. CHABOT. He probably won't. So go ahead.

    Mr. FRANK. But if I had done it the other way around, he might have, so you go ahead.
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    Mr. KOMER. The point about the Blaine amendments is that the same interpretation that has been given to the Establishment Clause and now rejected by the U.S. Supreme Court is often given to the Blaine amendments by the State supreme courts. The Blaine amendments themselves can be, in fact, interpreted perfectly consistently with the Zelman decision.

    Mr. FRANK. Wait a minute. Are you basically saying that where there is State constitution language that is somewhat similar to the Federal Constitution language State courts don't have a right to interpret that differently under the State constitution than the Federal courts have interpreted it in the Federal Constitution?

    Mr. KOMER. Yes.

    Mr. FRANK. That is a very radical change in doctrine.

    Mr. KOMER. Yes, where it infringes upon the Equal Protection Clause of the United States Constitution, the Free Exercise Clause and the Free Speech Clause.

    Mr. FRANK. If there is an infringement, that is a separate thing. State constitutions have no right to infringe on Federal law. But that is an independent point from arguing that the States have done a bad job of interpreting their own constitution. They have a right, it seems to me, to interpret their own constitution any way they want until and unless it comes into conflict with the separate and independent Federal constitutional rights. The fact that they are independently interpreting it differently than the Federal Government would interpret the same language is a different proposition than the one where there is a clash.
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    Mr. KOMER. And we are not disagreeing.

    Mr. FRANK. It sounded like we were a minute ago.

    Mr. KOMER. No, we are not. Because what we are disagreeing about is whether or not an overbroad interpretation of the Blaine amendment language does, in fact, infringe upon Federally protected rights.

    Mr. FRANK. That is uninfluenced by your disrespect for Blaine amendments in general? You are not influenced by your not liking them, by your not liking the historical circumstances in which they were adopted? That doesn't make you more willing to see the Federal court step in with regard to those State constitutional provisions as opposed to maybe some others?

    Mr. KOMER. No. My interest here is in protecting the federally——

    Mr. FRANK. That is not the way your statement reads.

    Mr. CHABOT. The gentleman's time has expired.

    The gentlelady from Pennsylvania is recognized for 5 minutes.

    Ms. HART. Thank you, Mr. Chairman.
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    There are so many things I want to say. Most of them are rebuttal, but that is not what my job is here today, so I will try to stick to what the issues are in what I think is actually a very appropriate hearing.

    We have seen the Supreme Court decision that seems to give us a little bit more firepower in support of legislation that was rightly before this Committee and is still before this Congress, and I think it is important for to us examine the relationship of that case to what the issue is of our faith-based initiative. So I think—Professor Laycock mentioned that in his statement. So I would like it if you could, Professor, elaborate a little bit more on the relationship between the Zelman case and what you have seen as part of the proposals regarding this faith-based initiative that has been before us.

    Mr. LAYCOCK. Let me say I testified on the faith-based bill a year ago, and I have not kept current on what has happened to it.

    Ms. HART. That is okay. You can stick with what you knew a year ago. That is about where we are, unfortunately.

    Mr. LAYCOCK. But my view is that the principles announced in Zelman align pretty directly to the faith-based initiative. So that if the Government-funded or Government-assisted social service is available to the intended beneficiaries without regard to religion, either the religion of the beneficiary or the religious views of the service provider, if beneficiaries are free to choose their own provider and if there is a genuine secular choice available, then the faith-based initiative is constitutional under Zelman.
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    The very controversial matter about whether providers who participate in these programs forfeit the right that they would otherwise have under title VII to prefer employees of their own faith, I think they shouldn't forfeit that. I think they ought to retain that right, but the Supreme Court plainly does not pass on that question in Zelman. That still remains to be argued about and to be litigated.

    Mr. LAYCOCK. And then finally, and this does go to some of the points Mr. Frank has been making, it is much more difficult to provide a genuine secular choice if you don't have ample funding for these programs. And in lots of these programs we turn the potential beneficiaries away, and that is a significant constraint on choice. And so the funding levels and the choice rationales are interconnected here.

    Ms. HART. Okay. Thank you for that. I want to commend Dr. Mims on the work you have been doing. I don't know much about it. But from your statement, it is clear to me that you get it; that the goal is and the focus is and should be each child, not a public school system, not a public services system, but if we are getting away from school choice then it should be the recipient of whatever public service it is that we are talking about conveying regarding the faith based initiative.

    But I want to ask you a question about the—because there is a dichotomy I think a little bit. I am interested in school choice. I have been an advocate for school choice for a long time. I was a State senator for 10 years in Pennsylvania. They now have a tax credit for organizations to contribute to charities that will provide vouchers. So they provide them privately. But the tax credit encourages that contribution. It has been a hugely successful proposition. I am assuming it is usually successful because you are offering something that people want.
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    Ms. HART. And what is it that they want? I mean what are you providing that is different than they could get if they went to the public school down the street?

    Ms. WHITEHURST-MIMS. What I think our school—I am sorry. What I think our school gives to parents is hope that they don't get. We have created an institution whereby the parents feel a part of that institution. Many of them have come into the institution with children who were deficient, and those children are learning, they are excelling. Now the parents are being taught by the children. I have parents who are now in premed courses at the university because their children pushed them, because we raised the bar. Our expectations are very high. We don't think in terms of the color of the child or the social, economic background of the child. We put them all in uniforms and they all mix together and they all learn together and they are happy learners, and I have found where children are happy and they are motivated they love learning. And therefore, we take them at 3 years of age. And my 3-year-old children read, add and subtract by the end of the school year. And I give the CAT test to preschool children. There is no CAT test for them, but I give them the kindergarten test and they all score in the 99th percentile. So when that happens, people run. We don't have enough space for them.

    Ms. HART. And that is great.

    Ms. WHITEHURST-MIMS. They are motivated.

    Mr. CHABOT. The gentlelady's time has expired.
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    Ms. WHITEHURST-MIMS. I am sorry.

    Ms. HART. Thank you. No, I am pleased and I thank you. Mr. Chairman, I will stay for round two.

    Mr. CHABOT. Thank you very much. The gentleman from Michigan, Mr. Conyers, is recognized.

    Mr. CONYERS. Thank you very much. I wanted to ask Mrs. Whitehurst-Mims about her school in terms of parental involvement, uniforms, and the learning disabled.

    Ms. WHITEHURST-MIMS. Okay. Specifically, do you want to know in general parent involvement? Parent involvement is very much encouraged. You have to remember, I was once a teacher in the public schools and I saw parents being alienated there. They were not accepted. If they were poor, they didn't want to come to the school. Well, of course when I started this school I made sure that that would not be a part of that. So I dropped all the barriers to parent involvement.

    Another thing that we did in the public schools, we had meetings when we knew that the poor parents could not come and so, therefore, now I have meetings on Saturday. That is convenient. So we make our education system available and convenient for the parents and thereby we gain their involvement.

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    Mr. CONYERS. It is not mandatory?

    Ms. WHITEHURST-MIMS. Mandatory? Yes, it is mandatory.

    Mr. CONYERS. Oh, it is mandatory.

    Ms. WHITEHURST-MIMS. It is mandatory that they participate, yes.

    Mr. CONYERS. Now, what about the disabled?

    Ms. WHITEHURST-MIMS. The disabled, we have limited—if you are talking about disabled, most of the children we get are children who are considered ADD or special education. We have not gotten any people who are physically handicapped.

    Mr. CONYERS. How large is the school?

    Ms. WHITEHURST-MIMS. The school now has 210 students.

    Mr. CONYERS. Now, are there uniforms required?

    Ms. WHITEHURST-MIMS. Always have been. We set the tone for the whole district in Cincinnati with that.

    Mr. CONYERS. Well, what I am trying to figure out is that with all these requirements, it sounds like we may be getting children from families that may be able to participate in a private program, only they are doing it with State money. And this may require not every child would be able to even get in that program.
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    Ms. WHITEHURST-MIMS. Well, what has happened, they weren't at first. You have to remember I started in the basement of a church with 43 children. But because of the demand, we grew. So the more demand, you just grow according to your demand. And we have helped a lot of children and we can help even more. I believe there is a school in Milwaukee, Marva Collins School in Milwaukee that has about 200 students on the waiting list. And so——

    Mr. CONYERS. Well, in that way then we can predict the end of the public school system in Cincinnati if your school keeps growing and we keep paying Federal money, and your school keeps—which is really incredible to me that you can take people with physical or mental problems and with the same amount of money——


    Mr. CONYERS. With less.


    Mr. CONYERS. Yeah. That is quite a little feat. And I suppose——

    Ms. WHITEHURST-MIMS. It is about passion.

    Mr. CONYERS. Yeah. But I suppose I would have to find out why all—why in Cleveland, for example, Reverend McDonald, most of the suburbs decided not to use vouchers. Is that correlatable?
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    Rev. MCDONALD. I think when we look at the voucher program as a whole. Even in Cleveland 75 percent of those who receive the vouchers were already in the private schools, so all that we were doing was subsidizing with public money those who were already attending private, which is kind of the norm where these voucher programs already exist. We started out talking about helping poor minority black kids in Cleveland and in Milwaukee.

    Now both of those programs have changed significantly so that a larger portion of those dollars are not going to poor black inner city kids, but are in fact going to the suburbs, going to families who already have their kids in private schools, and we are using public taxpayer dollars to subsidize those families primarily and we think that to be unfair.

    Mr. CONYERS. Back to Mrs. Whitehurst-Mims. Are you aware that the tests across the country, Florida, Milwaukee, that vouchers have been shown not to improve academic achievement?

    Ms. WHITEHURST-MIMS. No, I am not aware of that because I didn't think vouchers had been tried.

    Mr. CONYERS. Well, let me read to you this from the People from the American Way, which I will make available to you——


    Mr. CONYERS [continuing]. To all of you because I would like to get your responses. This is the sentence. ''the Florida and Milwaukee voucher programs do not require their private schools to administer standardized tests and report scores. However, while Cleveland is required to administer ninth grade tests, it is not required to make test scores public; hence, the public has no way to assess performance. Over the last few years, other research and analysis of voucher programs have failed to support the case being made by voucher supporters. The United States General Accounting Office reviewed State evaluations and found little or no difference between the academic achievement of voucher students and public students in Cleveland and Milwaukee, the two major urban school systems with publicly funded voucher programs.'' .
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    You are not familiar with these studies?

    Ms. WHITEHURST-MIMS. No, I am not familiar with those studies.

    Mr. CHABOT. The gentleman's time has expired. Would any of the witnesses care to comment on the information that Mr. Conyers has brought up?

    Mr. KOMER. The information that the Congressman is referring to is advocacy information that the People for the American Way has put out. In fact, the academic studies which have been made of both Milwaukee and Cleveland have shown small but definitely positive results with respect to both programs. The problem is that these programs are relatively new. Kids have not been in them very long, and we are utterly confident that the longer the kids are in these programs the better they will perform. The opposite of course is true for all, almost all inner city public schools, which is the longer a child remains in the program the farther behind he falls.

    Mr. CONYERS. Well, do you have any authority for that statement?

    Mr. KOMER. Yes, I do. The official evaluations of the Milwaukee program were done by Professor Witte. The official evaluations in the Cleveland program were done by Dr. Kim Metcalf and there were studies done by Jay Greene and Paul Peterson of both those studies and of private studies that have shown that all, both the public and private programs, have shown positive results for the kids who are in the programs.
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    Mr. CONYERS. So you agree that private schools should be subject to the same testing as public schools?

    Mr. KOMER. Actually I think it is not a bad idea for voucher programs to test the students. However, the ones that we have had to date have had evaluation components built in. But they have not included administering the same State tests.

    Mr. CONYERS. So the answer is yes?

    Mr. KOMER. What is the question to which the answer is yes?

    Mr. CONYERS. Well, the question was to what you answered. You gave the answer and I said and the answer is yes.

    Mr. KOMER. My position is that these programs have in fact been found to be positive.

    Mr. CONYERS. Well, let me put it this way. You do not think private schools should be subject to the same testing as public schools.

    Mr. KOMER. I don't think that is a necessary component to evaluating a voucher type program. I actually think that the voucher programs will demonstrate academic improvement regardless of what kind of accountability devices you want to come up with.

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    Mr. CHABOT. The gentleman's time has expired. The gentleman from Virginia is now here. I don't know if the gentleman wanted to ask any questions or not, but we are just getting ready to wrap up, but——

    Mr. SCOTT. Well, I just had—I apologize for being late, Mr. Chairman. Just to make clear from I guess Mr. Laycock, perhaps you can answer, is there any question that you cannot directly, federally directly fund a church?

    Mr. LAYCOCK. I don't think there is any question about that. No one has suggested that. You cannot directly fund a church.

    Mr. SCOTT. No one is suggesting that?

    Mr. LAYCOCK. No one is suggesting that we directly fund a church. What the debate is about is the funding of secular services provided by the church. But the kinds of programs that were at issue in the 1780's where we pay the minister with tax dollars, clearly unconstitutional, and no one is proposing that it be renewed.

    Mr. SCOTT. Well, let me ask it a little differently. If a church is running a secular program, can the check, Government check be written to the church?

    Mr. LAYCOCK. I don't think it should make any difference. I think you ought to be able to write the check to the church. But of the programs the court has upheld, the check is written to the parent or the other participant in the program and then that parent pays the church, sometimes by endorsing the check over.
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    Mr. SCOTT. That is fine. Again my question is, can the Government write a check to First Baptist Church for running an education program?

    Mr. LAYCOCK. I think the answer to that is yes. Now, the reason I am hesitating is because the Supreme Court is hesitating. The Supreme Court is much more comfortable if we write the check to the parent. And given that preference, the supporters of these programs ought to provide for the check to be written to the parent and they don't need to test that issue. But economically it doesn't make any difference whether the money goes to the provider.

    Mr. SCOTT. Actually we are testing the issue in legislation that is being considered. And if the entire Cleveland decision was the nuance between direct and indirect, what did that entire decision mean if you could have written a check directly to the pervasively sectarian organization? Unless—I mean you had to conclude everybody assumed you couldn't write the check directly to the pervasively sectarian organization. Otherwise all of the argument back and forth wouldn't have been necessary.

    Mr. LAYCOCK. Well, I agree with that. But, you know, I think what should be critical is who is making the choice; that the individual parent chose to go to this religious program rather than some secular program. And I think writing the check to the parent instead of the program is simply, is mostly symbolic and is a backup for this real question of who is writing the check. But you are absolutely right. The Supreme Court prefers the check to go to the individual parent.

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    Mr. SCOTT. You keep saying preferred. If the check had been written directly to the pervasively sectarian organization, made payable to them, the Government having made the choice, that is where the money was going to go, not the parent, is there any question that would have been unconstitutional?

    Mr. LAYCOCK. Yes. I don't know what the Supreme Court would say about that.

    Mr. SCOTT. There is a question.

    Mr. LAYCOCK. I think there is a question. I don't think it is a question we have to face because there is no reason to structure the program that way.

    Mr. SCOTT. Well, but there is legislation pending that does structure the program that way. And so——

    Mr. LAYCOCK. And that will be——

    Mr. SCOTT. That is why we had the question.

    Mr. LAYCOCK. That will not be within the safe harbor that Zelman creates. They have to litigate that issue. I think the real question should be in this legislation who makes the choice of the religious provider. But certainly——

    Mr. SCOTT. Finally, the Government makes the choice that First Baptist Church gets the money, not the parent, the Government, and the Government is going to run the education program—going to choose which religious organization gets to run the program. What kind of sense would this decision have made if that—if you do not assume that that would be unconstitutional?
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    Mr. LAYCOCK. Okay. I am sorry. I misunderstood the context you were talking about. Yeah. In some of the charitable choice proposals the proposal is that the Government awards a contract to a provider and they award it on religiously neutral criteria and they pick the best provider or something like that. Zelman says nothing about those programs. And, you know, and because those programs—they may ultimately depend upon an individual choosing to go to that program. But if built into the mechanism is the Government picks on some objective and neutral criteria of that provider——

    Mr. SCOTT. We had an amendment in this Committee that required some objective merit and that was rejected on a party line vote. So we know if we object to merit it isn't going to have anything to do with it. The bureaucrat picks the church.

    Mr. LAYCOCK. Well, if the bureaucrat picks the church without any standard, that is probably unconstitutional. Standardless licensing is unconstitutional in the first amendment context and I suspect the Court would be very suspicious of standardless grants as well.

    Mr. CHABOT. The gentleman's time has expired. I want to thank the panel very much for their testimony here this afternoon and their responses to the questions from the Members. I thought you all did a very good job. And as I said starting out, you know every child in this country deserves to have a quality education and in light of the Supreme Court's recent decision it is likely that school choice vouchers, whatever you want to call them, is going to play a significant role in improving that educational system in this country. So you all have helped us in determining policy issues down the road.
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    So thank you very much for being here. If there is no further business to come before the Committee, we are adjourned.

    [Whereupon, at 3:22 p.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record


    Americans for Religious Liberty is a twenty year old nonpartisan, public interest organization dedicated to preservation of the constitutional principle of religious freedom through separation of church and state.

    Although we believe the Supreme Court's 5-to-4 ruling in Zelman was erroneous, we accept that it remains for the present the last word on the subject. However, serious public policy concerns should compel Congress to refrain from enacting legislation that could adversely affect the public educational system that serves 90% of our nation's children.

    The primary concern of legislators should be the education of those children who attend schools that are publicly controlled, open to serve all children regardless of religion, ethnicity, linguistic background, family income level, or degree of handicap. This country faces a crisis in providing a sound education for a growing school age population, so already limited resources should not be diverted to nonpublic schools that commonly practice forms of discrimination in admissions, hiring, and curriculum selection that would be unacceptable in public schools. Public funds should not be sent directly or indirectly to schools not accountable to the taxpaying public. Just in the past month, for example, a Protestant school in Lexington, North Carolina, expelled a student not because of grades or conduct but because he is a Catholic. This could not happen in a public school.
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    So-called ''school choice'' programs that involve public funds for nonpublic schools are misleading, because it is the nonpublic school that chooses the student, either directly through admission policies or indirectly through the nature of the religion or ideology that pervades the school's curriculum. Few Christian parents, for example, would choose to send their children to a Jewish or Muslim school, and few Catholic parents would choose to send their children to a fundamentalist school in which Catholicism is denigrated.

    Nonpublic schools are not required to serve special needs children and many either do not or cannot. Many nonpublic schools charge tuition above the value of a school voucher. Further, numerous studies in the U.S. and abroad have shown that nonpublic schools seldom if ever do a better academic job than public schools.

    It remains sound public policy for public funds—whether federal or state or local—to be provided only to public elementary and secondary schools, which have long been funded inadequately and unevenly. And it remains sound public policy, as articulated by Jefferson and Madison, for government to refrain from compelling citizens through taxation to support faith-based schools which in theory and practice are generally pervasively sectarian. A key element of our American heritage is the right of every person to voluntarily support only the religious institutions of her or his free choice.

    Finally, the American people have made it abundantly clear in 25 statewide referenda from coast to coast over the past 35 years that, by an average aggregate vote of two to one, they are opposed to school vouchers or their analogs.

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    Thank you for allowing us to address this important issue.


    The American Jewish Committee (AJC), a national human relations organization with over 120,000 members and supporters represented by 32 regional offices, has a long history of commitment to the nation's public schools and to the principle of separation of church and state that is the premier protector of our religious liberties. AJC respectfully requests that this statement be included in the record of today's hearing of the House Judiciary Subcommittee on the Constitution on the United States Supreme Court's June 27 decision in Zelman v. Simmons-Harris and Congress' authority to enact school vouchers programs.

    AJC has made no secret of its severe disappointment in the 5–4 decision of the high court upholding as constitutional Cleveland's publicly funded vouchers program. As AJC General Counsel Jeffrey Sinensky said on the day that Zelman was handed down, ''This decision represents a troubling endorsement of unsound public policy, and, by allowing for the direct government subsidy of religious education, takes a battering ram to the constitutionally mandated wall of separation between church and state.'' However, AJC submits this statement today not to reargue the merits of the Court's ruling, but to strenuously urge the subcommittee to bear in mind that the Court's upholding of the Cleveland program did not resolve whether vouchers programs are sound public policy, much less whether Congress ought to enact legislation imposing such programs on the states.

    As a strong supporter of public education, AJC believes that the use of public money to support private schools, sectarian and nonsectarian alike is simply bad public policy. Contrary to the claims of voucher advocates, government subsidies will not make the difference for many low-income parents as to whether their children attend private schools. Many of those parents who now cannot afford private schools without vouchers will still be unable to do so with vouchers. Thus, low-income families will, as a rule, still be unable to send their children to quality private schools. Voucher initiatives create an illusion that they will somehow assist the public-school system by introducing competition. However, most poor children will remain in a public-school system already subject to severe budgetary constraints, especially in the inner city. Further, voucher programs will inevitably deplete scarce resources, weakening public schools by diverting limited tax revenues to private and religious schools that often face no requirements for how they spend tax dollars on curriculum content, teacher certification, student testing, enrollment diversity, and services for students with disabilities.
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    Moreover, vouchers programs, even if they do not run afoul of the First Amendment's prohibition on government establishment of religion, represent a bad policy choice in terms of the values inherent in the principle of separation of church and state. Participating religious schools may be permitted to discriminate in admissions and in employment on the basis of religion, and will be enabled to use public dollars for religious educational purposes, thus placing taxpayers in the position of supporting instruction in religious beliefs that may be contrary to their own. In addition, there are dangers for religious schools when they are funded by the state. These are the dangers that Justice Souter had in mind when, in a 2000 dissenting opinion, he referred to the threat to the integrity of religion posed by ''the corrosion of secular support.'' The more religious schools come to rely on state funding the greater those dangers, as the state understandably seeks to impose accountability and antidiscrimination protections, among other public policy principles, on money coming from the public fisc. These, and other aspects of vouchers programs, will promote exactly the types of divisions and tensions in our society against which the separation of church and state guards.

    It remains to be seen, as well, how far a so-called choice program may deviate from the Cleveland program and still be upheld as constitutional. The Zelman decision certainly leaves open to question the constitutionality of any program that fails to afford parents true choices between religious and non-religious schools, and between public and private alternatives, by, for instance, providing inadequate funding for secular, public alternatives, and that fails to incorporate antidiscrimination protections.

    Perhaps as crucially, whatever Congress' authority to legislate in this area, it would contradict the principle of local control of education for Congress to impose vouchers programs on the states that do not choose to adopt these programs themselves. In addition, even a program tracking the Cleveland program in all respects may be invalid in those states with constitutions that contain stringent prohibitions on public funding of religious institutions, also an aspect of state autonomy that the Congress should respect.
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    In sum, as we said in the amicus brief that we filed in Zelman, ''despite its laudable goal of improving educational opportunities for a select group of students, the [Cleveland vouchers] program is a misguided effort both in policy and in law.'' Certainly, so far as policy considerations are concerned, nothing in Zelman has changed that analysis, and, in any event, Congress ought to leave to the states, some operating under state constitutional provisions with church-state safeguards more stringent than those afforded under the First Amendment as interpreted by the Supreme Court, the determination as to whether and how to adopt vouchers programs.