Justices Weigh Vouchers for Parochial School Use

The Supreme Court took up the question Wednesday of state vouchers that pay for children to attend church-related schools--not to decide whether this is good education policy but to rule on whether this use of tax money violates the Constitution’s ban on “an establishment of religion.”

At least five justices--including, notably, Sandra Day O’Connor--sounded during the argument as though they were leaning toward the pro-voucher side.

A sixth, Justice Stephen G. Breyer, commented that the Catholic schools in Cleveland appeared to offer a higher quality of education than the public schools. Were he a parent there, Breyer said, he might send his children to those schools, even though he is Jewish.

A ruling upholding vouchers could prove to be a landmark both in education policy and in church-state law.

Leaders of the “school choice” movement believe that a victory in the Supreme Court will encourage other states to experiment with broader statewide subsidies for private and parochial schools. And the high court’s endorsement of public aid for church schools could clear away the legal doubts about President Bush’s “faith-based initiative.” The president seeks to direct more public money toward religious charities.

Outside the court building, crowds much larger than normal stretched down the block. The session Wednesday was unusual in that two major issues were being considered--the voucher case and a case involving the execution of mentally retarded inmates--and passionate advocates on both sides waited to hear the arguments.

Since 1995, Ohio has offered Cleveland parents vouchers, or scholarships, of $2,500 per child per year if they choose to send their children to private or parochial schools.

Supporters say this program gives disadvantaged children a chance to escape Cleveland’s failing public schools. Critics say it mostly subsidizes parents who were already sending their children to parochial schools. Nearly 4,000 students are receiving state vouchers in Cleveland.

In reality, the Cleveland program has offered parents fewer choices than its backers had envisioned. The suburban schools refused to open their doors to transfers from the city, and exclusive private schools were not interested in taking on students who could pay only $2,500.

As a result, nearly all the Cleveland students who take advantage of the state voucher--99% in the most recent tally--go to religious schools.

As Wednesday’s argument got underway, it was unclear how the justices would view the Cleveland program--through its hopes or its reality.

A federal appeals court, looking at the reality, had declared the program unconstitutional because it had “the impermissible effect” of promoting religion.

But from the opening moments of Wednesday’s argument, O’Connor seized on the fact that Cleveland’s parents can choose from an array of public schools. Rather than being restricted to the public school closest to their home, parents can choose from magnet schools and independently run charter schools.

“There are a whole range of options available,” O’Connor said. “Why should we not look at all the options open to the parents?” she asked a lawyer for the National Education Assn., the teachers’ union that has led the legal attack on vouchers.

Teachers and public school officials say voucher programs drain money from cash-strapped public schools.

In the past, O’Connor has said the government cannot directly fund the teaching of religion or single out religious schools for special benefits.

It is a different matter, however, if parents or students make the key choices about where to go for their schooling, even if their choice of a religious school is subsidized by the government, she says.

In the 1980s, O’Connor and the high court upheld a tuition tax credit law in Minnesota that subsidized parents who sent their children to religious schools. She also joined the court in upholding the use of federal funds for college students who attended religious institutions.

Not surprisingly, the lawyers defending the Ohio program were quick to invoke O’Connor’s favorite theme.

“The Ohio scholarship program offers true private choice for parents. And it is open to all comers,” said Judith L. French, an Ohio state attorney, who was representing state school Supt. Susan Zelman.

U.S. Solicitor General Theodore B. Olson echoed her point. State aid flows to parochial schools only through the “genuinely independent choice” of parents. “No reasonable observer would say this is the government endorsing religion,” he said.

The Bush administration supports vouchers and other aid programs for religious schools. The president’s budget calls on Congress to enact a $2,500 federal tax credit for parents paying tuition for elementary and secondary schools.

Justice David H. Souter, who has insisted on a strict separation of church and state, pointed to the fact that 99% of the Cleveland voucher money goes to religious schools.

“I think we have to look at the effect of this. That’s the sticking point for me. At the end of the day, a massive amount of money is going to religious schools,” Souter said. Chief Justice William H. Rehnquist intervened to block this argument. “When the parents do the choosing, it’s a different ballgame,” he said.

Justices Antonin Scalia and Anthony M. Kennedy spoke in defense of the voucher program, and Justice Clarence Thomas has already said he believes such aid programs are constitutional.

Waving his arms and gesturing, NEA general counsel Robert Chanin denounced vouchers as “a lousy option” and “back-door” way to funnel tax money into church schools. But his energetic style--as well as his argument--fell flat in the courtroom. He said the state government should provide more money for Cleveland’s public schools.

Scalia interrupted to say the Cleveland public schools receive $7,000 per student, an ample amount.

“It’s not a money problem. It’s a monopoly problem,” he said, a reference to what he sees as a lack of competition for public schools.

The justices repeatedly pressed Chanin and disputed his claims. By the end, he appeared to have won over no one. A ruling in the case, Zelman vs. Simmons-Harris, 00-1751, is expected by late June.