Justices weigh vouchers; defenders express hope

WASHINGTON (BP)--The U.S. Supreme Court has heard oral arguments in what is expected to be a landmark case that will determine the constitutionality of education-choice programs that permit vouchers to be used at religious schools.

The questioning inside the court and the demonstrations outside provided some evidence of the passions, contentiousness and significance of the issue. Education-choice programs, including voucher initiatives, have gained popularity in recent years as states have sought solutions to failing public schools, especially in urban areas.

Opponents of vouchers, in particular, have criticized such programs as violations of the U.S. Constitution's prohibition on government establishment of religion and as harmful to public schools. Advocates of voucher programs have defended their constitutionality, saying families, not the government, choose where to use the grants and such competition will result in improvement in public education.

The first arguments the high court has heard on such vouchers came in a case involving a law adopted by the Ohio legislature to deal with a massive failure of the Cleveland school district to meet the state's performance standards.

The Cleveland Scholarship and Tutoring Program allows a family to use a voucher of $2,500 in state funds for tuition cost at the secular or religious private school of its choice. Priority is given to low-income families. About 4,000 students use the vouchers in more than 50 private schools, most of them religious ones.

The program also offers up to $500 in tutorial aid to a family that chooses to keep its child in the Cleveland public schools or an amount of up to $2,500, plus a per diem of more than $4,000, to any public school in a nearby district that participates. No school in an adjacent district has decided to participate, however.

More than a year ago, a panel of the Sixth Circuit Court of Appeals voted 2-1 to affirm a federal judge's opinion the program violates the separation of church and state, because most of the schools in which vouchers are used are religious ones.

The program is constitutional because it is neutral regarding religion and provides "true private choice," Ohio Assistant Attorney General Judith French told the justices Feb. 20. In addition, the program is "open to all comers," both students and schools in the Cleveland area, French argued.

Robert Chanin, representing voucher opponents, told the court "millions of dollars are transferred from state coffers to religious schools" in a program where it is a "mathematical certainty almost all students will go to" such schools. The "parents play a ritualistic role" in deciding where the voucher will be used, Chanin contended.

Some justices seemed especially skeptical of Chanin's emphasis on the percentage of students using a voucher in religious schools. Associate Justice Sandra Day O'Connor repeatedly questioned his use of 99 percent as the program's percentage of participating students in religious schools, in the process removing charter and other public schools from Cleveland's education-choice "universe."

Chief Justice William Rehnquist even told Chanin he could see a "number of the members of the court are not satisfied" with his answers.

He focused on the 99 percent argument because it is "not close to the line for this court," Chanin said. Associate Justice John Paul Stevens asked Chanin about the constitutionality of a program with nine secular private schools and only one religious one. Chanin called it a "borderline case."

Associate Justice David Souter questioned if "there is something specious" about an education-choice program that has such a high percentage of students in religious schools.

Chanin, general counsel of the National Education Association, said there is a "need to break the circuit" of funding between the government and religious schools. Defenders of the program argued the circuit is broken by permitting parents to determine where the vouchers are used.

U.S. Solicitor General Ted Olson, representing the Department of Justice's position on behalf of the program, told the justices there is "no question the purpose that inspired" the program was the educational "needs of children," not religion.

The Milwaukee voucher program, which has been in place longer than the Cleveland version, has experienced growth in the number of secular private schools involved and in the number of students attending such schools, Olson said. The secular private schools have grown from 7 to 30, and the number of students in secular schools has increased from about 300 to 3,000, he said.

Associate Justice Antonin Scalia told Chanin it is not surprising only religious schools are already established in the inner city and able to help in the early stages of a program set up to contend with a failed public system. Chanin would destroy the education-choice program before secular schools have time to become participants, Scalia said.

He doesn't believe that is a reason for "ignoring the mandate of the establishment clause" of the First Amendment, Chanin replied.

The program's opponents ignored the last 20 years of the high court's decisions on church-state relations, French told the justices in closing. The court has rejected the percentage test and has upheld the private choices of individuals in cases during that time, she said.

The court has said government programs should "neither inhibit nor advance religion," French said.

Defenders of the program's constitutionality were pleased with the arguments in the case, which is Zelman v. Simmons-Harris.

"The tenor of the justices' questions seems to indicate that they understand that the Cleveland voucher case is about choice, providing choice to poor parents, not advancing religion," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, after reading reports of the arguments. "If parents choose to use school vouchers at religious schools when other secular options are available, that is their choice and it should be their right.

"As the Supreme Court's Rosenberger decision from several years ago made clear, government does not have to provide a benefit, in this case a voucher, but if it chooses to do so, it cannot then turn around and say that the only place the benefit can't be used is in a religious context, in this case a religious school," Land said. "As the court concluded in Rosenberger and hopefully will conclude in Zelman v. Simmons-Harris, that is not separation of church and state but government-sponsored, anti-religious bigotry."

The ELRC signed onto a friend-of-the-court brief written by the Christian Legal Society defending the program. The Family Research Council and National Association of Evangelicals also joined in the brief.

Clint Bolick, who represented Cleveland voucher recipients, said he was "cautiously optimistic."

"Our goal all along has been to demonstrate that this program is not about religion but about education," said Bolick, vice president of the Institute for Justice. "The court seemed very receptive to that argument."

Hollyn Hollman, general counsel of the Baptist Joint Committee on Public Affairs, called the voucher program "an assault on constitutionally mandated separation of church and state. The Cleveland public school crisis does not justify lifting the constitutional ban on government advancement of religion.

"Government funding inevitably saps the vitality of our religious institutions by making them dependent upon government dollars and stifling them with government regulations," Hollman said in a written statement.

The BJC signed onto a friend-of-the-court brief opposing the program.

Barry Lynn, executive director of Americans United for Separation of Church and State, said Americans "will be forced to support religious indoctrination" if the high court upholds the program. "Taxpayers should never be forced to place their money into the collection plates of churches," Lynn said in a written release.

Outside the court, proponents and opponents of vouchers rallied, chanting slogans in a scene reminiscent of some of the demonstrations during past abortion cases the justices have heard.

Organizers of the demonstration for vouchers estimated they had 600 to 700 participants, a large percentage of them African-American parents and children. Opponents produced a vocal but smaller crowd.

Among the many homemade signs supporting vouchers were: "My Child, My Choice;" "School Choice = Child's Chance;" "Shouldn't Poor Kids Be Able to Go to Private Schools," and "Muslim Americans 4 School Choice."

The opponents' signs mostly were printed green signs that said "Vouchers Are Unconstitutional" and "Public Funds for Public Schools." Among their homemade signs were "No tax $$ for private schools!"

According to a recently released study, Cleveland has the lowest overall graduation rate for high schools among the 50 largest districts in the country. It also has the lowest rate for black and Hispanic students.

Among organizations joining in briefs supporting the Cleveland program were the U.S. Conference of Catholic Bishops, American Center for Law and Justice, Focus on the Family, The Rutherford Institute, Union of Orthodox Jewish Congregations and The Center for Education Reform.

Organizations signing onto briefs opposing the program included the NAACP, National School Boards Association and The American Jewish Committee.

An opinion in the case is expected before the court adjourns this summer.


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