Justices take up school vouchers

Cleveland parents, with limited options, try religious schools

Separation of church, state

February 21, 2002|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

WASHINGTON - The contentious issue of school vouchers landed squarely before the Supreme Court yesterday as the justices weighed whether a Cleveland program that uses public money to send thousands of students to private religious schools violates the First Amendment separation of church and state.

The issue could turn on how much of a choice the court determines Cleveland parents really have under the Ohio program. Opponents argue that virtually the only options for parents are to keep their children in the public system or enroll them in church-sponsored schools. But several of the justices suggested during oral arguments yesterday that it might not be that simple.

Justice Sandra Day O'Connor, widely viewed as a key swing vote in the case, repeatedly noted that parents in the ailing Cleveland school system can enroll their children in non-religious charter or magnet schools or use money from the 6-year-old voucher program to pay for private tutors.

"If you want to look at what the parents' choices are, don't you have to look at the whole program?" O'Connor said. "Why should we not look at all the options open to parents in having their children educated?"

The case is considered one of the most important the court will hear this term, because the outcome could significantly reshape American education policy. Hundreds of protesters, aligned on each side of the issue, gathered outside the court during yesterday's arguments.

A ruling upholding Cleveland's voucher system likely would accelerate the creation of similar programs across the country, giving momentum to one of President Bush's top education goals. The effect would be most keenly felt in blighted urban areas, where officials have grappled for decades with the question of how to repair substandard schools.

If the court finds the Ohio program promotes religious education - a violation of the First Amendment's establishment clause - the decision would effectively shut down the Cleveland program and hamper efforts to create other school-choice measures that use public money for private schools.

A decision is expected this summer. Two lower courts have ruled the Cleveland program unconstitutional, but the program has continued operating while the state and school system appealed.

`Mathematical certainty'

Attorneys arguing against vouchers urged the Supreme Court to uphold the earlier rulings. Robert H. Chanin, general counsel for the National Education Association, said the Ohio system steers millions of dollars each year to parochial schools - in what he called a clear constitutional violation - because nearby suburban schools and most secular private schools chose not to participate in the program.

"It's a mathematical certainty that almost all of the students will go to religious schools," Chanin said.

This school year, 4,456 students in kindergarten through eighth grade used tuition vouchers of up to $2,250 annually to attend private schools in Cleveland, almost all of them church-sponsored. The three-judge panel of the 6th U.S. Circuit Court of Appeals that ruled the program unconstitutional said the practical result of the voucher system was a funneling of public money to sectarian schools.

But Judith L. French, an assistant Ohio attorney general, argued yesterday that the program passes constitutional muster because it offers parents with a neutral choice about their children's education.

"Whatever proselytizing happens in the schools, it is at the behest of the parents, not at the behest of the government," French said.

It has been almost 20 years since the Supreme Court last ruled directly on the school vouchers. In 1973, the court struck down a tuition reimbursement program in New York, saying that public money was improperly being used to "subsidize and advance the religious mission of sectarian schools."

Justice David H. Souter invoked that 2-decade-old decision yesterday in voicing skepticism about the constitutionality of the Cleveland program: "There were massive amounts of money going to religious schools in [the New York case]; there are massive amounts of money going to religious schools here. And that is the sticking point."

In recent years, though, the court has upheld several state laws allowing public money to go to religious schools for such things as library books or computers, or for special-education instruction. And at least four of the nine justices appear poised to approve vouchers - Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. O'Connor could cast the critical fifth vote.

"Unless there's an endorsement of religion, I don't see why it matters if [public] money goes to a religious school," Scalia said.

`A monopoly problem'

The question before the court is not whether vouchers are a sound alternative for students in some of the nation's worst public schools. But that issue was not easily ignored.

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