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Blackboard Jungle

Clint Bolick's travel agent got him an upgrade to first class on the 1: 50 p.m. Delta flight out of Tallahassee on February 24, which was a good thing. Bolick needed a drink. The litigation director of the Institute for Justice, Bolick had a bad morning, arguing a summary judgment motion in the courtroom of L. Ralph Smith, Jr., the state court judge presiding over Florida's school voucher litigation. Bolick had tried to make the speech he's made in so many school voucher cases over the last five years. "I represent the people who have the most at stake," he had told Smith (popularly known as Bubba), as he gestured back to rows of parents wearing red, white, and blue "School Choice" buttons. Judge Smith cut him off: "That's irrelevant to the facial constitutionality." Bolick, 42, has the manner of a teacher coaxing along a student, but the judge balked at all of Bolick's attempts to persuade him that vouchers are good for Florida's public schools. Bolick mustered a smile for the television cameras that surrounded him after the hearing, but by the time he got to the airport for the trip back to Washington, he was looking glum.

Until Robert Chanin boarded the plane. Chanin, a 65-year-old Brooklyn-born warrior with slicked-down gray hair, was the beneficiary of Judge Smith's rough treatment of Bolick. Chanin has represented the National Education Association (NEA) for more than 30 years, and he is the lead lawyer for the coalition of groups that have opposed school vouchers in state after state. Chanin had kept his arguments for Judge Smith simple but ferocious, slashing the air with his hands as he insisted that Florida's constitution required public money to be spent on public schools. When Smith asked the antivoucher lawyers to draft a detailed proposed order for him to review, Chanin knew he'd won.

He couldn't help notice, though, when he got on the plane, that Bolick was in first class slipping a Chardonnay while he was headed back to coach and a choice of apple juice or Coke. "When he walked by, he glared at me and made some remark," says Bolick, whose delight in the incident seems to have erased some of the sting of Judge Smith's rejection. "I said, 'It's because I have a nonunion travel agent, Bob."'

"Oh, if I even said anything, it was a reflex comment," retorts Chanin. "Clint is becoming overly sensitive, perhaps."

If Bolick and Chanin seem like two men who have spent too much time together, it's because they have. They're the leading players on the school voucher road show--a roving band of lawyers who have spent the last five years traveling from state to state litigating school voucher cases. Judge Bubba Smith's Tallahassee courtroom was just the latest stop on their tour. Think of them as the paladins of the school voucher war. They've argued voucher cases in Wisconsin, Arizona, Vermont, Maine, Ohio, Illinois, Pennsylvania, and Florida. They've advised the long list of politicians and policy makers with voucher agendas. They've written the certiorari briefs for the U.S. Supreme Court; and when the Court finally does agree to decide the constitutionality of voucher programs that use public money to educate children in religious schools, they'll be before the justices arguing the fine points of the cases they know better than anyone.

The voucher debate has captivated law professors and education professionals, spawned peculiar political alliances and divides, and served as a centerpiece of gubernatorial campaigns. Two dozen states have considered or will consider voucher legislation this year. Eighteen states have already voted them down in referendums. The presidential candidates have staked out positions at opposite ends of the school voucher spectrum: Vice President Al Gore, the candidate supported by the teachers unions, says that vouchers are a false panacea, diverting money and attention from public schools; Texas governor George W. Bush, who has modeled his school voucher proposal on the ambitious statewide program in Florida that was the subject of the hearing before Judge Smith, says that vouchers can remake American schools. Amid the tumult, the voucher road show lawyers keep litigating.

Clint Bolick says he became a lawyer because he was disgusted with the state of public education. A New Jersey native and public high school graduate, Bolick studied for a teaching certificate at Drew University in the late 1970s. "My experience as a student teacher opened my eyes," he says. Bolick taught at New Jersey's Millburn High School, "a pretty posh school," he says. "But I was shocked at how poor the education basics were, particularly the writing ability of the students.... I found I was spending all my time correcting grammar." He was even more disturbed, he says, by conditions in a poorer school where he spent a semester observing classes. In college Bolick had studied the writings of both home schooling radical John Holt and University of Chicago economist Milton Friedman, which persuaded him that parents should be given control of their children's education. He also took an undergraduate course in constitutional law, and says he was transfixed by the story of Brown v. Board of Education. "This all made me think I would have a bigger impact on education in the courtroom than in the classroom," Bolick says. Vouchers, he came to believe, were the key to improving education on a grand scale.

Free-marketeer Milton Friedman first suggested applying free-market principles to primary schools in a 1955 essay. If parents were given vouchers and permitted to choose their children's schools, he asserted, they could select programs to match each child's learning style; moreover, he believed, the competition for students would force all schools to improve. "The role of government," Friedman wrote, "would be limited to assuring that schools met certain minimum standards ... much as it now inspects restaurants to assure that they maintain minimum sanitary standards." Ronald Reagan's presidency revived interest in vouchers in the 1980s, and in 1990 the movement got a boost from an influential book called Politics, Markets and America's Schools, in which educators John Chubb and Terry Moe argued that a system of universal vouchers would eliminate educational bureaucracy and improve school performance.

Friedman, whose free-market theories remain the raison d'etre for the school voucher movement, is regarded as the father of the movement. Clint Bolick is its enthusiastic big brother. Bolick is a Boy Scout of a man, so preternaturally cheerful and polite that it's probably better that he didn't become a teacher; one can only imagine what a classroom of eighth-graders would do to him. After law school at the University of California at Davis, Bolick went to work at Mountain States Legal Foundation, a nonprofit legal center supporting the cause of limited government, in Denver. In 1983 he wrote an amicus brief in Mueller v. Allen, in which the U.S. Supreme Court eventually upheld the constitutionality of a Minnesota law that permitted parents to deduct from their state taxes some of the expenses of sending their children to school, public or private. Bolick's brief was on behalf of a coalition of libertarian and school choice groups. Writing it, he says, crystallized for him the argument that publicly funded school choice leveled the playing field for poor kids. "What has made [the modern voucher movement] different is the marriage between free-market advocates and advocates for low-income people," says Bolick, who is part of Washington's conservative-libertarian firmament. (Among his backers are the Sarah Scaife Foundation and the John M. Olin Foundation.) "That brief pioneered the approach we continue using."

Remaking school vouchers into a civil rights issue suits Bolick perfectly; he is empathetic by nature with a genius for public relations. His guiding principle is "economic justice," and, though Bolick actively opposes affirmative action, most of his clients are low-income people, many of them black. In 1990 Bolick heard about a woman named Annette Polly Williams, a black Wisconsin state legislator from Milwaukee who was fighting for a pilot school choice program in her city. Bolick, then with Landmark Legal Foundation traveled to Milwaukee to meet with Williams and the African American families backing the Milwaukee school choice plan.

"His eyes," wrote Milwaukee voucher activist Mikel Holt in his book, Not Yet "Free At Last," "darted around the room as if he were trying to establish a link with a skeptical jury." In that first meeting, wrote Holt, Bolick won over his audience with a calm discussion of the tactics he expected voucher opponents to employ and how he intended to counter them. "But it wasn't his legal scholarship or tactical generalship that put smiles on the faces of those who left the Saturday morning meeting," Holt wrote. "It was Clint Bolick's air of confidence that set our minds at ease and gave us hope.... Clint Bolick was a godsend."

For Bolick, the Milwaukee parents who asked him to represent them were equally providential. The Milwaukee pilot program was in many ways an ideal first test for vouchers. Milwaukee's public schools were unquestionably troubled. The pilot program would provide a small number of low-income parents with vouchers to cover their children's tuition at selected private schools. No religious schools participated in the pilot program, so the First Amendment church-and-state issues were irrelevant. And Bolick got to reap the public relations benefits of a conservative white lawyer defending the rights of low-income minority parents to send their kids to minority-oriented private schools.

Williams, the Milwaukee legislator who had spearheaded the school choice program, had no illusions about her symbolic value for Bolick and his ideological allies. "I'm a nappy-headed black woman, a single mother, a former welfare recipient with a poor constituency," says Williams, who knew she brought credibility to the movement. "They couldn't have created a better person. They'd watch and say, 'Oh, she kicked the teachers unions' butt."' Through Bolick, Williams became a school voucher celebrity. She accepted the alliance, she says, because she knew that Bolick and his friends could "spread to the nation what we were able to do in Milwaukee" more effectively than she could alone.

Bolick celebrated with the Milwaukee parents he represented in 1992, when the pilot program survived a state constitutional challenge from the local teachers unions. Their case, he says, made him a school voucher radical. "I had always favored school choice as a philosophical matter," says Bolick, whose own sons attend public schools in Fairfax, Virginia. "I became militant on the issue when I walked through the hallways of private schools in Milwaukee.... I saw black and Hispanic kids from the poorest [public] schools thriving."

In 1995 Wisconsin governor Tommy Thompson pushed to expand the Milwaukee program to include more children--and to permit religious schools, which hadn't been part of the pilot, to accept voucher students. Bolick, a student of U.S. Supreme Court establishment clause precedent [see "Church And Slate," page 69], advised state legislators on how to draft a program to survive a constitutional challenge: The state could not in any way give an edge to religious schools, as opposed to nonsectarian private schools; and could not itself direct money to religious schools without an intermediate choice by parents. When, as expected, a coalition of civil liberties groups and teachers unions sued to block the expanded program, Bolick and his parent group intervened on the state's side.

Governor Thompson, meanwhile, had hired private lawyers to represent the state. (Bolick didn't represent the state, just the parents, and Wisconsin's attorney general was a voucher opponent.) Through President George Bush, Thompson was acquainted with a young Kirkland & Ellis partner named Jay Lefkowitz, who, as part of the president's domestic affairs staff, had pushed Bush's voucher initiatives. Like Bolick, Lefkowitz, 37, is a conservative who opposes affirmative action; also, like Bolick, he touts economic justice and equal opportunity. An observant Jew, Lefkowitz has a pro bono background handling religious freedom cases, but he regards vouchers as an issue of civil rights. "We talk and talk and talk about equal opportunity, and we don't have equal opportunity," says Lefkowitz, whose barely-out-of-high-school looks fit incongruously with his professorial style. "Without competition [from private schools], we're not going to improve the public schools." Lefkowitz set up a meeting between Governor Thompson and Kirkland partner Kenneth Starr, who, as a former solicitor general, would argue constitutional questions in the Wisconsin state Supreme Court. When Starr took a leave from Kirkland, Lefkowitz took over.

Bolick and Lefkowitz have worked well together, first in Wisconsin and more recently in Florida, where Lefkowitz was again hired by the state's governor to defend its voucher program. (Lefkowitz, according to his contract with Florida, is charging the state $270 an hour, a 25 percent discount off his regular rates, and has agreed that the state will pay Kirkland no more than $225,000.) Their mutual commitment to the voucher cause dates back to when the whole movement could fit comfortably in a booth at a diner. Lefkowitz tailors arguments for justices' minds, Bolick for their hearts. Both do their jobs well.

John Witte, the University of Wisconsin professor selected by the state to evaluate the voucher program, calls the hoopla that Bolick manages to create "school choice theater"; it reached its apotheosis, he says, when the case went to the Wisconsin Supreme Court in 1998. Bolick arranged for busloads of voucher kids, neatly dressed in their plaid school uniforms, to rally on the steps of the courthouse and fill the spectator seats.

Whether it was due to the plaid-clad kids assembled by Bolick or the establishment clause precedents marshaled by Lefkowitz, the Wisconsin Supreme Court upheld the state's voucher program, which is now the longest-running voucher experiment in the country.

One of the small pleasures of the Wisconsin case for Bolick was the speech Bob Chanin made at the end of his argument. Chanin, who had to walk through the children's rally to get into the courthouse, was frustrated, and he wanted the justices to know it. "Throughout this litigation we have been portrayed as the bad guys, as uncaring, as insensitive to the needs and aspirations of disadvantaged minority children," Chanin told the justices. "We have refrained from responding in kind because we are attorneys. We believe that our job is simply to argue the law, and not to debate policy."

"We wanted to respond to all the crap we'd been listening to," explains Chanin. "We wanted the judges and the media and the spectators to know we do care. We care about public education."

"He was really rattled," chortles Bolick. "He's such a polished courtroom performer--knocking Bob Chanin off his stride was definitely an accomplishment."

Clint Bolick and Bob Chanin have a peculiar relationship. Chanin swears that he and Bolick get along fine, that he has an easier time working out stipulated facts with Bolick than with some of the state lawyers he's opposed in these cases. Bolick, for his part, is quick to salute Chanin's courtroom aplomb. Yet it's obvious that Bolick loves needling Chanin-- just as it's obvious that, denials aside, Chanin is easily irritated by him.

Like most of his partners in the antivoucher coalition, Chanin suspects Bolick and his allies are using poor kids as an "opening wedge.... If you tell me their mission in life is to support disadvantaged kids, I don't buy it," he says. "That's a loss leader. It's not always going to be disadvantaged kids." Adds antivoucher coalition partner Elliot Mincberg of People for the American Way: "The focus on the inner city is only the first step. Clint and the others firmly support vouchers nationwide for all students at all income levels." (Even Polly Williams, Bolick's entree into the Wisconsin case, has soured on Bolick and the choice movement. "They're using the needs of low-income families," she says. "This whole choice thing is just about a transfer of power from the teachers unions to corporate America. Low-income, minority parents don't feel any more power.")

More exasperating to the antivoucher lawyers than Bolick's motives, however, is Bolick's ceaseless effort to persuade judges that voucher kids get a better education than they would in public school--that vouchers, in other words, are good public policy. Though Chanin is steeped in it, he believes that policy has no place in the voucher litigation. Chanin has devoted almost 40 years to the NEA, starting when he was a young associate at New York's Kaye, Scholer, Fierman, Hays & Handler. In 1968 he went in-house, setting up the NEA's general counsel's office. He served as the NEA's deputy executive director from 1973 to 1980, and even when he left to join Washington's Bredhoff & Kaiser in 1980, he retained the NEA general counsel title and spends three days a week at his NEA office. (Chanin does not draw a salary from the NEA, which has a retainer relationship with his law firm.)

Nothing bugs Chanin more than the pro-voucher accusation that the teachers unions care less about education than about their cozy tenured jobs. "Of course we care about the children. We care on a long-range basis," he says. "Vouchers, if they survive, are never going to be the way the vast number of children in our country are educated. Unless we improve the inner-city public school systems, we don't solve the problem." In the meantime, he argues, vouchers divert money from the public schools--typically, the money that pays for voucher kids to go to private school is subtracted from public school budgets-- and distract from attempts to improve them.

Free-market theories are fine for essays, voucher opponents say, but in real life, vouchers skim off children from motivated families, making competition with private schools all the more difficult for troubled public schools. "Tell me another market in the inner city that works," says Wisconsin's John Witte, who evaluated the Milwaukee program in its early years. "There's no full-service market, no car dealership, no dentist. Why should we believe the free market will work for schools?" Adds Chanin's partner John West: "In the worst case, in large urban areas, the public school's function will be warehousing the poorest, most vulnerable kids whose parents aren't able to get them anything better."

But Chanin and the antivoucher lawyers generally don't argue education policy in court. One of the peculiarities of the voucher litigation is the disconnect between the legal arguments and the broader questions of education in America. There has never been a trial that has considered the educational merits of any school voucher plan--every case so far has been decided on motions for summary judgment or dismissal, addressing purely questions of law. Chanin and his coalition partners regard Bolick's rallies on the courthouse steps, as well as his in-court arguments about the unfairness of trapping children in bad schools, as a sneaky way of smuggling in education policy--wrapped in an emotional appeal--where it doesn't belong.

Not that Chanin is above using whatever legal argument he can think of. Crusty and imperious, Chanin believes his job in this litigation is not to win an affirmation of the separation of church and state from the U.S. Supreme Court, though, of course, he (and his coalition partners) would welcome one. "Our goal is not to make law," Chanin insists. "Our objective is to kill a bad program any way we can. We will attack on any grounds."

Most state constitutions, for instance, mandate a separation of church and state, often in language less ambiguous than the federal establishment clause. State constitutions also typically include provisions that guarantee a thorough and uniform system of public education; 38 states, in fact, amended their constitutions at the turn of the century (largely through the efforts of anti-immigrant Senator James Blaine and the Know-Nothing Party) specifically to prohibit public funding of religious schools.

The fight over Ohio's school voucher program, which could well end up in the U.S. Supreme Court next term, shows Chanin and his coalition partners at their most resourceful. In 1995 Ohio's state legislature passed a pilot program to offer vouchers to low-income parents in Cleveland. "There were long-held frustrations," says Ohio's attorney general, Betty Montgomery. "We had a hidebound system, and our perception was that we could not get the educational establishment to change." Cleveland's public schools were so dreadful that in the early 1990s the federal courts had ordered a state takeover. Vouchers seemed like an obvious option, particularly, Montgomery says, given their free-market appeal in a moderately conservative state like Ohio. Montgomery was part of the committee that drafted the voucher plan, which was constructed on the assumption that it would be challenged in court.

The Ohio lawmakers built their program around a footnote in the U.S. Supreme Court's 1973 case Committee for Public Education & Religious Liberty v. Nyquist. In Nyquist, the Court struck down a set of New York laws intended to rescue failing parochial schools, finding that the primary effect of the laws was to advance religion. The justices noted, however, that their ruling did not apply to such popular programs as the G.I. bill. "We need not decide," the Nyquist opinion says, "whether the significantly religious character of the [Nyquist] statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." Ohio drafters interpreted the Nyquist footnote, as well as subsequent Court cases, to mean that as long as their voucher program was entirely neutral--any qualifying student and any qualifying school could participate--it was constitutional. Furthermore, the program eliminated any direct link between the state and participating religious schools by making voucher money available to parents, who then directed how it would be spent.

After the law passed, the NEA and the American Federation of Teachers (AFT) filed separate state court suits, which were quickly consolidated. The state was represented by its then-solicitor general, former Supreme Court clerk Jeffrey Sutton. Bolick, as usual, intervened on the state's side on behalf of a group of parents. Squire, Sanders & Dempsey partner David Young also intervened, representing several private schools.

All of the national antivoucher lawyers from the Wisconsin litigation showed up in Ohio as well: Chanin and his partners; Steven Shapiro of the American Civil Liberties Union, Mincberg of People for the American Way, Steven Green of Americans United for Separation of Church and State. The AFT, which had a low profile in Wisconsin, brought in Marvin Frankel of New York's Kramer Levin Naftalis & Frankel for the Ohio case.

Frankel, 79, is a highly respected former federal court judge and an establishment clause scholar whose constitutional interest in the voucher litigation was sometimes at odds with Chanin's anything-that-works tactics. In addition to the usual array of federal and state constitutional arguments, Chanin had discovered a loophole of sorts in the Ohio constitution, an obscure clause called the "one-subject" rule, which prohibited the legislature from funding a major program by attaching it to a more general appropriations bill. The NEA included the one-subject argument in its summary judgment briefs. The AFT did not. When Chanin and Frankel divided their time for oral arguments before the Ohio Supreme Court, Frankel laid claim to the establishment clause presentation. Chanin said he'd handle the state constitutional arguments, including the one-subject rule.

Chanin prevailed. Last May the Ohio Supreme Court struck down the Cleveland voucher program--but not because it violated the state or federal establishment clause, nor even because of Ohio's constitutional protection of its public school system. Indeed, the Ohio justices made a point of rejecting the antivoucher arguments on those grounds. Instead, Ohio's voucher program was found to violate the one-subject rule. "Some said it was a Mickey Mouse argument," says Chanin. "I didn't care."

The victory was short-lived, however: The legislature turned around and passed a nearly identical voucher law, this time complying with the one-subject rule. Working quickly, the teachers unions and their coalition partners sued again, in federal court, where the case landed before Cleveland federal district court judge Solomon Oliver, Jr., a Clinton appointee. Squire, Sanders partner Young, representing several private schools, pressed for a trial that would establish the secular educational merits of Cleveland's voucher program. ("These traveling lawyers," says Young, who collected affidavits from dozens of satisfied voucher parents, "I don't think they try many cases. I think they only argue cases.") Bolick and the state solicitor general disagreed with Young's strategy, proceeding instead with a motion for a summary judgment ruling that the Cleveland voucher program did not violate the First Amendment. "There's nothing I would like more than a show trial on school choice," explains Bolick. "The Supreme Court test asks what is the primary effect of the program. We'd show the primary effect is educational. We'd bring in school officials, social scientists," he continues. "However, what altered my thinking was that factual findings in a trial are given deference by the appellate courts. They're reviewed de novo on summary judgment. Judge Oliver had already shown himself to be hostile. We didn't want to give him that kind of power over the facts." Besides, Bolick shoehorned his policy arguments into his briefs in support of the summary judgment motion.

Frankel, the church-and-state scholar representing the AFT, dominated the antivoucher arguments before Judge Oliver. The Ohio program, he asserted, was Nyquist redux: Parents had no real universe of choice among voucher schools, which were almost exclusively sectarian. (Though the state's program permitted suburban public schools to accept voucher kids, none agreed to take them.) And the religious mission of the sectarian schools was inextricably intertwined with the education they offered their students.

As usual, Bolick had brought voucher kids into the courtroom. "Judge Oliver had to quiet them down," Frankel recalls. "But it didn't amount to a hill of beans. And the higher you go [in the courts], the less it matters."

On December 20 Judge Oliver ruled that the Cleveland voucher program was unconstitutional under the establishment clause of the First Amendment. "Because of the overwhelmingly large number of religious versus nonreligious schools participating in the voucher program," Oliver wrote, "beneficiaries cannot make a genuine, independent choice of what school to attend. A program that is so skewed toward religion necessarily results in indoctrination attributable to the government."

Voucher lawyers on both sides consider the Cleveland case a good prospect for U.S. Supreme Court review, particularly if the U.S. Court of Appeals for the Sixth Circuit upholds Judge Oliver. The high court has declined to grant certiorari in voucher cases from Wisconsin, Arizona, Maine, and Vermont, but last November the justices showed interest in the Cleveland litigation, staying a temporary injunction that would have shut down part of the program and forced 4,000 voucher kids to leave their private schools.

Even a Supreme Court ruling on vouchers and the establishment clause, though, won't shut down the voucher road show, particularly if the ruling comes in the Cleveland case, in which such a high percentage of the schools that accept voucher students are parochial. The Florida program, for instance, is so shrewdly crafted that it seems almost to anticipate Judge Oliver's findings in Cleveland. Created in 1999 at the behest of Governor Jeb Bush (and with counsel from Bolick), Florida's "opportunity scholarship program" is by far the most ambitious in the country. All of Florida's public schools are graded on the basis of how students perform on standardized reading and math tests. Students at public schools that receive failing grades for two straight years are eligible for vouchers, and can transfer to private schools or--and this is why the program is so shrewd--to better-performing public schools, which, space permitting, are required to accept them. Even Chanin concedes that the Nyquist-based First Amendment arguments Judge Oliver relied on in Cleveland can't be applied so neatly to Florida's program.

Yet on March 14, as anyone who had attended the hearing in Tallahassee could have predicted, Judge Smith struck down Florida's voucher program. In an emphatic demonstration of the multifarious means of attack available to the antivoucher lawyers, Smith found that the Florida program violated the provision of the state constitution safeguarding public education. He rejected the arguments posited by Bolick and Jay Lefkowitz at the February 24 hearing, and adopted, almost entirely, the proposed order filed by Chanin and his colleagues. "It's a flat-out endorsement of the NEA's bottom line, that public money is for public education," Chanin says.

The ruling got a lot of media attention, perhaps because presidential candidate Bush has modeled his voucher proposal on his brother's in Florida. In truth, as Clint Bolick kept insisting to reporters, Smith's decision is of little lasting consequence. The state gets an automatic stay of his injunction pending appeal, and the pro-voucher lawyers are hopeful that a higher court will be more receptive to the subtleties of their arguments than Smith was.

Which means that Bolick and Chanin are going to be seeing each other on lots of planes before the great voucher debate is over. Lefkowitz will keep arguing with his friend and fellow congregant Elliot Mincberg of People for the American Way at synagogue on Saturdays. Bolick will keep busing kids to rallies. Chanin will keep finding loopholes. "After all," sighs the American Jewish Congress's Marc Stern, who has been monitoring school vouchers since 1976, "what else would we do with our time?"