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SUPREME COURT’S SCHOOL CHOICE DECISION

AND CONGRESS’ AUTHORITY

TO ENACT CHOICE PROGRAMS

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

SEPTEMBER 17, 2002

Serial No. 101

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

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

WILLIAM L. JENKINS, Tennessee 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MELISSA A. HART, Pennsylvania, 

Vice Chair

LAMAR SMITH, Texas 

J. RANDY FORBES, Virginia 

JERROLD NADLER, New York 

BARNEY FRANK, Massachusetts 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina

BRADLEY S. CLANTON, Chief Counsel 

PAUL B. TAYLOR, Counsel 

CRYSTAL M. ROBERTS, Counsel 

KRISTEN SCHULTZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

SEPTEMBER 17, 2002

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress From the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

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

of Massachusetts .................................................................................................. 3

WITNESSES 

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 ..................................................................................................... 5

Prepared Statement ............................................................................................. 8

Mr. Richard Komer, Senior Litigation Attorney, The Institute for Justice, 

Washington, DC 

Oral Testimony ..................................................................................................... 25

Prepared Statement ............................................................................................. 27

Rev. Timothy McDonald, III, Pastor, First Iconium Baptist Church, Atlanta, 

GA 

Oral Testimony ..................................................................................................... 47

Prepared Statement ............................................................................................. 48

Ms. Cleaster Whitehurst-Mims, Marva Collins School, Cincinnati, OH 

Oral Testimony ..................................................................................................... 51

Prepared Statement ............................................................................................. 53

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Albert J. Menendez, Research Director, and Edd 

Doerr, President, Americans for Religious Liberty ........................................... 71

Prepared Statement of Richard T. Foltin, Legislative Director and Counsel, 

The American Jewish Committee ....................................................................... 72

(1)

SUPREME COURT’S SCHOOL CHOICE 

DECISION AND CONGRESS’ AUTHORITY 

TO ENACT CHOICE PROGRAMS 

TUESDAY, SEPTEMBER 17, 2002

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. 

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 

2

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.’’

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.’’

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. 

3

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.’’ 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. 

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 

4

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. 

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. 

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 FoundaVerDate Jan 17 2002 13:00 Oct 24, 2002 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 G:\WORK\CONST\091702\81748.000 HJUD1 PsN: 81748
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tion’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. 

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. 

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

STATEMENT OF DOUGLAS LAYCOCK, ASSOCIATE DEAN FOR 

RESEARCH AND ALICE McKEAN YOUNG REGENTS CHAIR IN 

LAW, THE UNIVERSITY OF TEXAS SCHOOL OF LAW, AUSTIN, 

TX 

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. 

6

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. 

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. 

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 

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cies, 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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ADDENDUM


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Mr. CHABOT. Mr. Komer. 

STATEMENT OF RICHARD KOMER, SENIOR LITIGATION 

ATTORNEY, THE INSTITUTE FOR JUSTICE, WASHINGTON, DC 

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. 

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. 

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. 

26

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. 

[The prepared statement of Mr. Komer follows:]

27

PREPARED STATEMENT OF RICHARD D. KOMER


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Mr. CHABOT. Reverend McDonald. 

STATEMENT OF REV. TIMOTHY McDONALD III, PASTOR,

FIRST ICONIUM BAPTIST CHURCH, ATLANTA, GA 

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. 

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 inVerDate Jan 17 2002 13:00 Oct 24, 2002 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 G:\WORK\CONST\091702\81748.000 HJUD1 PsN: 81748
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tent 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. 

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. 

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:]

PREPARED STATEMENT OF TIMOTHY MCDONALD

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 

49

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. 

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. 

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 socalled 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 underVerDate Jan 17 2002 13:00 Oct 24, 2002 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 G:\WORK\CONST\091702\81748.000 HJUD1 PsN: 81748
50

funded 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. 

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. 

Accountability 

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. 

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 provoucher 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 accountVerDate Jan 17 2002 13:00 Oct 24, 2002 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 G:\WORK\CONST\091702\81748.000 HJUD1 PsN: 81748
51

ability 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. 

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. 

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. 

Conclusion 

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. 

STATEMENT OF CLEASTER WHITEHURST-MIMS,

MARVA COLLINS SCHOOL, CINCINNATI, OH 

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. 

52

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. 

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 spe- cial 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. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Ms. Mims follows:]

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Mims1.eps
54


Mims2.eps
55


Mims3.eps
56


Mims4.eps
57


Mims5.eps
58


Mims6.eps
59

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. 

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? 

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 

60

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? 

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. 

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. 

61

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. 

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? 

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. 

62

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——

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. 

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. 

63

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. 

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. 

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 

64

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. 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. 

Ms. WHITEHURST-MIMS. Yes. 

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 

65

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-yearold 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. 

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. 

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. 

66

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. 

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——

Ms. WHITEHURST-MIMS. Less. 

Mr. CONYERS. With less. 

Ms. WHITEHURST-MIMS. Yes. 

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? 

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——

Ms. WHITEHURST-MIMS. Okay. 

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 

67

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.’’ . 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. 

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. 

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 

68

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. 

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. 

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. 

69

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? 

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. 

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.] 

(71)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF ALBERT J. MENENDEZ AND EDD DOERR

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. 

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. 

Thank you for allowing us to address this important issue.

72

PREPARED STATEMENT OF RICHARD T. FOLTIN

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. 

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. 

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 

73

[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.

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