Supreme Court Takes Voucher Case

The Supreme Court announced Tuesday that it will decide this term whether taxpayer money can be used to pay for children to attend religious schools.

The voucher case offers an early legal test of President Bush’s faith-based initiative. The president wants public funds to flow to religious charities, but the Supreme Court in the past has said the Constitution forbids direct public funding of religious institutions.

The outcome of the case also may shape the future of school reform.

Proponents of vouchers say they offer hope to children who are trapped in the nation’s worst public schools. These funds give parents a real choice, they say, and allow them to transfer their sons or daughters to nearby private and parochial schools.

In 1995, the Ohio Legislature began offering scholarships, or vouchers, for children from low-income families in Cleveland. Each child is eligible to receive as much as $2,500 to pay for private or parochial school.

As many as 4,000 students have taken advantage of the offer, and 96% of them transferred from public to religious schools.

Opponents of vouchers, including the nation’s teachers unions, say such programs drain money from the public system and thereby weaken the schools that educate the vast majority of children.

The opponents fear that if a limited use of vouchers is upheld, Ohio lawmakers will expand the tuition subsidies statewide.

But the Supreme Court will not decide whether vouchers are a good idea or a bad one. Rather, the justices will rule on whether this diversion of public money to parochial schools violates the 1st Amendment’s ban on laws “respecting an establishment of religion.”

In the 1960s and ‘70s, the court insisted that the 1st Amendment called for a strict separation of church and state. Back then, the justices quoted James Madison and Thomas Jefferson as saying government should never require the taxpayers to pay money to support religion.

Following that view, the high court in 1973 struck down a New York aid program that reimbursed low-income parents who paid tuition to private schools. In a 6-3 decision, the court said this subsidy for religious education violated the 1st Amendment.

In recent decades, the court has edged away from its insistence on a strict separation between church and state.

Last year, for example, the justices upheld a federal aid program that pays for computers in schools, both public and parochial. The majority characterized this as a type of indirect and incidental support for religious schools, not a direct subsidy.

But the justices have not explicitly overruled the 1973 New York ruling on vouchers.

In the Cleveland case, a federal trial judge and the U.S. Court of Appeals cited the New York precedent in striking down Ohio’s use of vouchers. These judges called the state aid program a “diversion of government aid to religious institutions.”

Shortly after taking office, the Bush administration’s solicitor general, Theodore B. Olson, filed a brief urging the high court to take up the Cleveland case and to uphold the use of vouchers. The court followed at least the first part of his advice by voting to hear the appeals.

The case, known as Zelman vs. Simmons-Harris, 00-1751, will be heard in January.

The outcome probably depends on Justice Sandra Day O’Connor. Four justices have voted regularly to allow more state aid for religious schools, and O’Connor usually, but not always, joins them.

Activists on both sides of the issue portray the case as momentous.

“This is probably the most important church-state case in the last half century,” said Barry W. Lynn, executive director of Americans United for Separation of Church and State. “It will be a historic showdown over government funding of religion.”

Clint Bolick, a lawyer for the Institute of Justice who represents some Cleveland parents, called it “the most important educational opportunity case since Brown vs. Board of Education. This is not about religion. It’s about the education of millions of schoolchildren.”

Besides vouchers, the court voted to take up seven other disputes. Among them:

* A case from Oakland tests the government’s zero-tolerance policy for drug use in public housing. Pearlie Rucker, 63, faced eviction after her mentally disabled daughter, who lived with her, was caught with cocaine near their apartment.

But the U.S. 9th Circuit Court of Appeals sided with Rucker and three other elderly tenants, ruling that “innocent tenants” cannot be evicted. The court agreed to hear the government’s appeal in HUD vs. Rucker, 00-1770.

* The government also is appealing a ruling that its lawyers say could cost $80 billion over the next decade for disability benefits. At issue is whether someone can qualify as disabled if they are able to work part time.

The law makes people ineligible for disability benefits if they “engaged in any substantial gainful activity” over a 12-month period. But a federal court in Virginia adopted a more liberal view and ruled that a man with schizophrenia was entitled to disability benefits even though he was able to work for brief periods (Massanari vs. Walton, 00-1937).

* The court also made clear it will rule this term on whether it is cruel and unusual punishment to execute a mentally retarded murderer.

Earlier this year, the justices took up a North Carolina inmate’s case, but the state Legislature has since changed its law and abolished such executions.

On Tuesday, the justices dismissed that case but took up a similar appeal from Virginia.

Daryl Atkins, who has an IQ of 59, was sentenced to death for the 1996 robbery and murder of Eric Nesbitt, an airman who was stationed at Langley Air Force Base.

Currently, 18 of the 32 states that have the death penalty exclude those who are mentally retarded. Texas and California, along with Virginia, are among the states that do not.

The cases that were granted review Tuesday will be heard early next year. The court officially opens its term Monday.