From the Washington Post RE: School Voucher Decision in Cleveland by the Supreme Court

This one is really the decision of the times and shows poor judgement in the extreme by the Court. It's obviously the biggest story here in Ohio where Public Education funding is in trouble anyhow. What really troubles me is that some feel it is simply "alarmist" to feel that this will go any further which is completely out of character as these decisions in the past have always "let the toothpaste out of the tube."........Spaw

From the Washington Post:

A bitterly divided Supreme Court upheld the constitutionality of an Ohio school voucher program yesterday, ruling for the first time that the government may give financial aid to parents so they can send their children to religious or private schools.

In a landmark church-state decision that could recast the national debate over education policy, the court ruled 5 to 4 that the Ohio program, which applies only to the failing Cleveland school district, is not a de facto subsidy for church-run schools.

Instead, the court said, it gives low-income families freedom of choice between secular and religious education and, as such, does not amount to an official sponsorship of religion, which is prohibited by the First Amendment to the Constitution.

"[T]he Ohio program is entirely neutral with respect to religion," Chief Justice William H. Rehnquist said in the opinion he wrote for the court. "It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."

Rehnquist was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented.

The case, which called upon the justices to render a legal opinion on one of the most hotly debated policy issues of recent times, drew more intense public attention than any other in this term.

"In practical effect, this is one of the most important constitutional decisions of the last 30 years," said Eugene Volokh, a University of California at Los Angeles law school professor who specializes in church-state issues.

Opponents of vouchers, led by teachers unions, consider them not only an affront to the separation of church and state but also a mortal financial threat to public education itself. Supporters, led by conservative free-market activists, say that the aid is the best hope for thousands of low-income children trapped in failing inner-city school systems.

The intense exchanges between these interest groups were mirrored in the passionate words of the justices yesterday.

Reading from the bench a joint statement from the four dissenting justices as a demonstration of their strong disagreement with the majority, Souter called the court's ruling a "potentially tragic" mistake that would force citizens to subsidize faiths they do not share even as it corrupts religion by making it dependent on government.

In his own dissenting opinion, Breyer said the court "risks creating a form of religious conflict potentially harmful to the Nation's social fabric."

Stevens added that the court has "remove[d] a brick from the wall that was once designed to separate religion from government, [increasing] the risk of religious strife and weaken[ing] the foundation of democracy."

But in an equally forceful opinion expressing his reasons for joining the majority, the court's only African American, Thomas, who often credits his own rise from poverty to the rigorous education he received at a Roman Catholic school in Savannah, Ga., said vouchers are necessary to rescue children from "inner-city public schools that deny emancipation to urban minority students."

"While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers," Thomas wrote, "poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society."

The court's ruling will not immediately deliver a voucher option to other students in the country, however. It says only that the Constitution permits state legislatures to pass voucher laws similar to Ohio's -- not that they must do so.

But voucher proponents, who had feared that a defeat at the court could be fatal to their cause, said they expect their campaign in the states to be reenergized now that the constitutional cloud over it has been lifted.

"This decision removes a major impediment to school-choice legislation around the country," said Clint Bolick, vice president of the Institute for Justice, a conservative legal organization that led the battle for the Ohio program in the lower courts. "We expect to see major legislative efforts at the federal and state levels over the coming year. At least half a dozen states, including Colorado and Texas, should see significant action after the November elections."

Polls have found the public split on the issue. A Washington Post-Kaiser Family Foundation survey last summer showed that 50 percent of Americans opposed providing parents with vouchers, while 45 percent approved of the idea. Support for vouchers appears to be stronger among inner-city residents than among suburban voters, however.

In recent years, voters in California and Michigan rejected voucher proposals in state referendums, and a voucher provision in President Bush's education proposals foundered last year in the face of congressional opposition. The Bush administration weighed in on the pro-voucher side at the Supreme Court.

Aside from Ohio, only two states, Wisconsin and Florida, have enacted voucher programs to date.

Steven Shapiro, legal director of the American Civil Liberties Union, which opposes vouchers, said the court's ruling creates "no reason to think this is going to reinvigorate a voucher movement that has repeatedly been defeated in recent years. The American public may be ahead of the court on this issue."

Robert H. Chanin, an attorney for the National Education Association, the largest teachers union in the country, said opponents will pursue legal challenges based on state constitutional law in states that do adopt vouchers. Such a challenge is pending in Florida, said Chanin, who argued against vouchers at the Supreme Court.

At issue in the case the court decided yesterday was a law enacted by the Ohio legislature in 1995 to cope with the near-breakdown of Cleveland's public schools. It provides a maximum of $2,250 each to the families of about 3,700 mostly low-income students, enabling them to attend religious or secular private schools. The bill also makes the aid available for paying tuition at suburban public schools, but no suburban schools have agreed to accept voucher students from Cleveland.

Backed by teachers unions and civil liberties organizations, Cleveland residents who opposed the program sued to block it as a violation of the separation of church and state. They believed they had a particularly strong claim that it was tantamount to taxpayer-subsidized religion, since 96 percent of the students who received aid in a recent year used it to pay for tuition at schools affiliated with churches.

But the case came to a Supreme Court that has been moving in the direction of greater support for including religious schools in government programs that provide aid to education. Majorities composed largely of conservative appointees of Republican presidents had ruled that such funding is not government sponsorship of religion as long as it is provided on an equal basis to religious and nonreligious institutions alike and is channeled through individuals who exercise free choice over how it is used.

In 1986, for example, the court held that a student could use state vocational scholarship money to study at a religious institution to become a pastor. In 1993, the court ruled that federal money could be used to pay for sign-language interpreters for deaf students at religious schools.

In yesterday's opinion, Rehnquist argued that the Cleveland voucher program fits neatly into this line of precedent.

He said that the key consideration is not that almost all of the students who used vouchers went to religious schools, but rather that the vouchers are just one part of an array of alternatives to the traditional public schools that also includes charter schools, magnet schools and special tutoring grants for traditional-school students.

"The . . . question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school," Rehnquist wrote.

He noted that the percentage of voucher students in secular private schools would have been higher, but two such schools were converted into charter schools because of the court battle over the voucher program's future.

In his dissent, Souter contended that the issue of whether the program is state-sponsored religion should have been decided strictly on the basis of where the state voucher money went.

"The majority has confused choice in spending scholarships with choice from the entire menu of possible educational placements, most of them open to anyone willing to attend a public school," Souter wrote, accusing the majority of a "dramatic departure from basic [constitutional] principle."

But, crucially, Rehnquist received the unqualified support of O'Connor for this holding. Many court-watchers had speculated that O'Connor might join a pro-voucher majority but write separately to limit the impact of the case.

Instead, O'Connor published a concurring opinion, in which she backed Rehnquist fully, disputed Souter's reasoning at length, and called "alarmist" the concerns Souter and Breyer expressed about possible social division.

The court's ruling was on three consolidated cases: Zelman v. Simmons-Harris, No. 00-1751; Hanna Perkins School v. Simmons-Harris, No. 00-1777; and Taylor v. Simmons-Harris, No. 00-1779.


© 2002 The Washington Post Company