The more things change, the, more they seem to stay the same: In 1981, I wrote a paper on the constitutionality of school vouchers for a law school course. At the time, it appeared that a sharply divided Supreme Court would reject vouchers, five to four. Two decades later, it appears that a sharply divided Supreme Court might well uphold vouchers, five to four. For this very reason, academics and others continue to fill the pages of law reviews with competing analyses of whether school vouchers violate the Establishment Clause.(1) Far more tellingly, during the 2000 elections, Court watchers claimed that the winner of the presidential race would control the constitutional fate of school vouchers (by, presumably, appointing the Justice who will cast the deciding vote in a constitutional challenge to school vouchers).(2)
That much of the ongoing fight over the constitutionality of vouchers appears little more than rote repetition of decades-old constitutional arguments cannot be denied. Yet this superficial similarity belies a critical difference between today's voucher wars and those of the early 1980s. Over the past two decades, the social meaning of school vouchers has undergone a radical transformation.(3) In part, this change is about context: increasing emphasis on market-based solutions to social problems, the demise of court-ordered school desegregation, the "secularization" of Catholic schools, and changing attitudes of parents, especially minority parents, towards vouchers. But this change is also about the text of voucher plans, that is, targeted plans that benefit a limited number of parents whose children attend failing schools instead of across-the-board plans that benefit any parent sending her child to a private school.
In the pages that follow, I will detail the changing social meaning of school vouchers and, in so doing, explain why the classic arguments against vouchers seem less salient today than ever before. For example, the claim that vouchers would circumvent school desegregation no longer makes sense. With courts increasingly giving up on mandatory busing, racial isolation in public schools is a far more severe problem today than it was twenty years ago. For this reason, vouchers are often seen (by African Americans and others) as a way to improve the lives of minority students in a world without court-ordered desegregation.
Likewise, the claim that vouchers do little more than subsidize religious parents who opt out of public schools has, in significant respects, been overtaken by a broader debate over school reform. Voucher proponents rarely talk about the inequities of compelling religious parents both to subsidize public education and to pay the cost of private religious education.(4) The focus, instead, is on the propriety of market-driven solutions to a failed public school system. For their part, most voucher opponents talk not about the wrongness of the state's facilitating private religious instruction, but instead about the need to invest in public schools.(5)
Before turning to this proof of changing social meaning, I will explain why social meaning does and should matter to the Supreme Court. In particular, I will argue that social meaning affects the Justices' understanding of the facts and, as such, appropriately influences the application of preexisting standards of review as well as the decision to recalibrate those standards in favor of alternative ones.
I. SOCIAL INFLUENCES ON CONSTITUTIONAL LAW(6)
Just as the Supreme Court leaves its mark on American society, so are social forces part of the mix of constitutional law. True, the Justices work in a somewhat insulated atmosphere. But, as Chief Justice William Rehnquist reminded us, the "currents and tides of public opinion ... lap at the courthouse door,"(7) for "judges go home at night and read the newspaper or watch the evening news on television; they talk to their family and friends about current events. …