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Published in Print: October 3, 2001, as Supreme Court To Hear Pivotal Voucher Case

Supreme Court To Hear Pivotal Voucher Case

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Taking on a potentially historic case, the U.S. Supreme Court announced last week that it will decide whether the U.S. Constitution permits government-financed tuition vouchers to be used at religious schools.

The court will review a case challenging the constitutionality of the 6-year- old Cleveland voucher program, which provides state aid for private school tuition to some 4,000 students from low-income families. Some 96 percent of the students use vouchers worth as much as $2,250 a year to attend religiously affiliated schools.

With its acceptance of the Cleveland case, the high court set the stage for a ruling that could either pump new life into the movement for private school choice or all but permanently foreclose the idea of allowing public tuition aid to reach precollegiate religious schools.

"This is the most important educational-opportunity case since Brown v. Board of Education," said Clint Bolick, a vice president of the Institute for Justice, a legal-advocacy group based in Washington that represents several voucher families in the case. "If the court upholds this program, it will vindicate at last the promise of equal educational opportunities."

Robert H. Chanin, the general counsel of the National Education Association and the lead lawyer opposing the Cleveland program in court, said he and other voucher opponents view the appeal as one of the most important education cases in a generation.

"We're going to do everything we can," he said, to persuade the justices not to open the door to more such government aid to religion.

Help From Administration

The Cleveland Scholarship and Tutoring Program was struck down last December by the U.S. Court of Appeals for the 6th Circuit as a violation of the First Amendment's prohibition against a government establishment of religion. A panel of the Cincinnati-based court ruled 2-1 that the aid program was similar to a New York state tuition- reimbursement program for private school parents struck down by the Supreme Court in the 1973 case of Committee for Public Education and Religious Liberty v. Nyquist.

In the 2000 decision, the appeals court rejected arguments that the Cleveland vouchers were a neutral form of aid to parents that only indirectly benefited religious schools.

The ruling was appealed to the Supreme Court by the state of Ohio as well as by a group of voucher parents and by several religious schools participating in the program, which has continued to operate pending the further appeals. The court accepted all three petitions for review but said it would treat them as one case, with the customary one hour of oral argument to come sometime early in 2002.

A decision is expected by next July.

The appeals are Zelman v. Simmons-Harris (Case No. 00-1751), Hanna Perkins School v. Simmons-Harris (No. 00-1777), and Taylor v. Simmons-Harris (No. 00-1779).

"I am pleased that the nearly 4,000 low-income Cleveland-area children benefiting from this valuable program will have their day in the Supreme Court," Ohio Attorney General Betty D. Montgomery, who is overseeing the state's defense of the voucher program, said in a statement.

Voucher supporters had received a boost from the Bush administration, which filed a brief in June urging the high court to accept the case and use it to rule in favor of including religious schools in government aid programs.

President Bush proposed a voucher experiment in his major education package, but the idea was shelved earlier this year because of a lack of support in Congress.

Church-State Shift

Lawsuits filed in 1996 by a coalition of teachers' unions and civil liberties groups challenged the Cleveland program. The challenge first went through the Ohio state courts.

In 1999, the Ohio Supreme Court invalidated the program on somewhat technical grounds of state law. But the court also held that that the inclusion of religious schools in the voucher program did not violate the federal constitutional prohibition against a government establishment of religion.

The state legislature quickly reauthorized the program that year to cure its technical deficiencies. It was again challenged by teachers' unions and civil liberties groups, but this time in the federal courts.

U.S. District Judge Solomon Oliver of Cleveland ruled in late 1999 that that program was a violation of the establishment clause. The judge said the program was heavily skewed toward government support of religion because the vast majority of participating private schools were religious.

Throughout the litigation, the program has largely been allowed to operate. When Judge Oliver refused to allow new students to enter the program in the fall of 1999, the U.S. Supreme Court took the unusual step of intervening and blocking the judge's injunction. The message suggested was that the program should continue pending its legal appeals, as well as that the justices were following the Cleveland case with interest.

The justices have passed up opportunities in recent years to review other school choice programs, such as the Milwaukee voucher program and smaller tuition-aid programs in Vermont and Maine. But with their Sept. 25 order accepting the Cleveland case for review, the justices have signaled they are ready to tackle an educational issue that has deeply divided educators, legal experts, and the public.

"The entire issue of the constitutionality of school choice cries out for resolution," the state of Ohio says in its brief defending the Cleveland program.

Now that the Supreme Court has agreed to take on the voucher issue, attention will likely focus on two justices at the center of recent church- state cases: Sandra Day O'Connor and Stephen G. Breyer.

Many legal analysts have noted the court's shift to the right in the past two decades on issues of government aid to religion. The court has ruled in favor of tax deductions for educational expenses that include private schools and the provision of a public school sign-language interpreter for a student in a parochial school. A 1997 ruling allowed publicly funded Title I remedial education teachers to go back into religious schools, reversing a 1985 decision that had barred them from delivering services on the premises of such schools.

Last year, in Mitchell v. Helms, the court ruled 6-3 to uphold the provision of federal aid to religious schools in the form of computers and library books.

Parsing O'Connor

Three justices joined with Justice Clarence Thomas in an opinion that made it fairly clear they would uphold any government aid to religious schools that was offered on a neutral basis and was secular in content. Thus, Justice Thomas as well as those three members—Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy— are viewed as likely to rule in favor of the Cleveland voucher program.

The three justices who dissented in Helms—John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg—are viewed as unlikely to uphold such a voucher plan.

That could leave Justices O'Connor and Breyer holding the cards in this case. In a concurring opinion in Helms that was joined by Justice Breyer, Justice O'Connor expressed concern that Justice Thomas' approach would go too far in approving government aid to religion.

She was cautious about direct government aid ending up in the coffers of religious schools, but was also murky about the contours of her position and how it would affect another case.

"Her opinion in Helms is going to be parsed in the weeks and months ahead," said Steven R. Shapiro, the national legal director of the American Civil Liberties Union, which is part of the coalition fighting the Cleveland voucher program.

"The pivotal votes belong to Justice O'Connor and Justice Breyer."

Vol. 21, Issue 5, Pages 1,32-33

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