Five years ago this summer, the U.S. Supreme Court in Zelman v. Simmons-Harris eliminated one potential barrier to educational opportunity by upholding Cleveland’s school voucher program against a legal challenge under the U.S. Constitution’s Establishment Clause. Does that mean the door to school choice is now open in states like Michigan? Unfortunately not, because each state has its own constitution that may (and in Michigan’s case does) create local limits on school choice. Understanding the situation in Michigan requires a bit more background.

Seeking a "silver bullet" victory that would have effectively ended school choice across the nation in a single stroke, the National Education Association and other special interest groups attacked Cleveland’s educational choice program for including religious schools among the wide array of educational options available to parents. Allowing parents to choose religious schools, they argued, amounted to an indirect attempt to aid religion in violation of the federal Establishment Clause.

Of course, that argument is hard to reconcile with the fact that the federal government routinely pays for prekindergarteners to receive child care at religious schools and day-care centers, as well as for college students to attend religious colleges like Notre Dame, Georgetown, and Yeshiva University using Pell Grants and the GI Bill. And the Court rejected the argument, finding Cleveland’s voucher program to be one of "true private choice" designed to aid families, not religion.

Having lost at the U.S. Supreme Court, the NEA and its anti-choice allies did not give up. Instead, they committed themselves to fighting the battle for educational status quo state by state, dredging up whatever state constitutional provisions could be pressed into service both to discourage the future enactment of choice programs and challenge any existing ones in court. That’s going to be a tall order: From eight programs in seven states when the Zelman case came down in 2002, we have gone to 17 programs in 10 states. Georgia is the latest state to join the voucher movement, offering state-funded scholarships to parents of children with disabilities. Arizona has a similar program that also includes foster children, as well as two different tax-credit-funded scholarship programs for other students.

Moreover, mounting evidence shows the benefits of school choice — not only for students receiving vouchers, but also for students who remain in public schools that, confronted for the first time with choice-driven competition, improve their overall performance in response. Other studies show beneficial effects on graduation rates (again, for students who take the vouchers and those who do not), racial integration, and substantial cost savings. No study has shown that any voucher program has ever harmed either voucher recipients or public schools. The only empirical question about vouchers today is whether their impact so far is best characterized as modestly beneficial or incredibly beneficial.

So where does that leave Michigan?

Unfortunately, Michigan’s state constitution is among the most hostile in the country to school choice. Unlike virtually every other state, in which at least some form of publicly-funded school choice is possible, Michigan’s constitution specifically provides that no public money may ever be paid "to aid or maintain" any private school at the K-12 level. It states that no "payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property" may be provided "directly or indirectly, to support the attendance of any student or employment of any person at any such nonpublic school."

Realistically, the prospects for school choice in Michigan, absent constitutional amendment, are dim. A 2000 effort to amend the state constitution to permit school vouchers went down hard, and it is unclear what it would take to credibly mount a fresh attempt. One promising reform would be education tax credits, which have been a more popular school-choice policy than vouchers. In a 2002 survey conducted by the EPIC-MRA polling firm for the Mackinac Center, 67 percent of the respondents said they would support education tax credits.

The increasingly irrefutable evidence that school choice programs actually improve public schools while simultaneously providing a lifeline to thousands of children stuck in failing public schools may help to promote vital reform. The best evidence of the necessity of a school-choice policy must be the steadily increasing demand for school choice among the people who need it most: young, minority, urban parents, among whom polls show upwards of 80 percent support for school vouchers. Or maybe it will be the simple realization that those who now stand in the doors of our public schools to keep children trapped inside are just as morally culpable as those who stood in schoolhouse doors 50 years ago to keep children trapped outside.

Clark Neily is a senior attorney with the Institute for Justice, Arlington, Va.