Arizona Supreme Court Justice speaks on the future of education policy and litigation

Justice Clint Bolick, an Associate Justice of the Arizona Supreme Court, recently spoke to students about the future of education policy and litigation in America in an event co-sponsored by the Federalist Society and the Tocqueville Program for Inquiry into Religion and Public Life.

Justice Bolick has devoted much of his career to education litigation, notably leading the defense of the nation’s first school voucher program in Cleveland, Ohio. This landmark 2002 Supreme Court case, Zelman v. Simmons-Harris, set important precedent permitting the use of public money to pay tuition at private and parochial schools. In 1991, he co-founded the Institute for Justice, a libertarian public interest law firm that assists with school choice cases nationwide.

Bolick painted a dismal picture of the nation’s inner-city public education system. Originally studying to be a teacher, Bolick student-taught in a number of schools. “Everyone should walk through an inner-city school to understand what is really going on,” he stated. “You need to see the chronic disorder and culture of low expectations to believe it.”

When the Cleveland voucher program was passed, Bolick noted that one in eighteen students were graduating high school on time with senior credits in the city’s public schools. Shockingly, the proportion was exactly the same for those who were a victim of crime at school each year.

Bolick’s key point was that we as Americans need to focus less on where a child is being educated and more on whether a child is being educated. School vouchers give decision-making power back to parents, who are then able to use public funds toward tuition at a school of their choice, whether it be public or private.

Our public education system, with its assignment of students to schools based on their zip code, is a relic of the early 20th century, according to Bolick. We have innovated in every other area of American life, he noted, but “if we brought someone born in 1900 back to society today, they wouldn’t recognize much as being the same, but one thing they would recognize is the structure of our public school system.”

Bolick believes that though pro-school choice policies and lawsuits have intensified in recent years, the movement is neither “sufficiently urgent” nor “sufficiently radical.”

He cited three obstacles that are currently impeding innovation and choice in the education sector: teachers unions, local school districts, and bricks and mortar school buildings. Unions feel threatened by reforms, believing that children will leave the public school system if provided better opportunity elsewhere. Their vast resources and political connections often make passing pro-child policies falter in the face of pro-adult interests. Local school districts are also susceptible to special interests, according to Bolick, and in rural areas school districts are the largest employer. Thus, even if a school perpetuates inequity and inefficiency, teachers have powerful incentives to support only the policies that improve public schools, rather than the system as a whole. Finally, Bolick noted the interesting road block of brick-and-mortar school buildings. He believes that we should use our vast technological capacity to cut costs, cater education to each student, and embrace online learning. He cited the explosion of Khan Academy, a free online learning resource, as a notable example.

To surmount these obstacles and ensure better education for all, especially disadvantaged children, Bolick argued that parent empowerment is crucial. School vouchers and tax-credit scholarships give agency to parents to choose where their child is educated.

Yet, special interest groups oppose voucher programs on the grounds that public money should not be allowed to flow to religious schools. Justice Bolick believes that the newest wave of education policy reforms, Education Savings Accounts, will resist legal challenges better.

“Education Savings Accounts (ESAs) are vouchers on steroids,” Bolick quipped. Essentially, they provide the money that the state would have spent on the child to attend a public school to the parents on a debit card. Unlike a regular voucher, however, the ESA can be used to pay for any approved educational expense, including tutoring, online learning, textbooks, or private school tuition. Because the funds are not only flowing to private schools, Bolick believes they are more defensible in court.

Nevada recently passed and defended a the nation’s first universal ESA program in the courts, though it is stalled for the time being due to budgetary issues.

Bolick concluded his talk with a touching anecdote from his time as a litigator. When he defended the Cleveland voucher program, Bolick had requested that the children poised to benefit from the program be brought to the courtroom. They arrived late, however, and were not admitted to the room. He noted that they stood outside for the entirety of the argument, noses pressed against the glass. After the case was decided in their favor, they streamed into the courtroom.

For Bolick, this story exemplifies the nature of school choice policy and litigation: adults fighting in the courtroom and legislatures to pass policies to benefit children who do not have a seat at the table. School choice reforms are one way in which we may attempt to give them a better future.

Kate Hardiman is a senior majoring in the Program of Liberal Studies and minoring in Politics, Philosophy and Economics. She recently completed her senior thesis on the Indiana voucher program. Contact her at