Justices Settle Case, Nettle Policy Debate

By Mark Walsh — July 10, 2002 11 min read
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The U.S. Supreme Court’s landmark ruling upholding the Cleveland voucher program has rejuvenated the school choice movement and, to a surprising degree, reinvigorated the debate over how best to improve the education of all the nation’s schoolchildren.

The decision was perhaps the biggest advance yet for a movement that embraces not only vouchers, but also an assortment of new arrangements in public education, among them charter schools, corporate management of public schools, open enrollment, and other alternatives to traditional schools.

“I got many calls yesterday from parents who were interested not just in vouchers, but other forms of choice,” Virginia Walden-Ford, the executive director of D.C. Parents for School Choice, a local group here, said the day after the court’s ruling. “Every parent said, ‘We won.’ ”

That win, specifically, meant the high court’s validation by a 5-4 vote of a program that offers low-income Cleveland families tuition aid for religious as well as secular private schools. Those vouchers, the court decided, do not violate the U.S. Constitution’s prohibition against a government establishment of religion. The program, the court majority said, is one “of true private choice.”

Milton Friedman, the Nobel Prize-winning economist who first proposed a universal system of educational vouchers in a 1955 academic article, praised the June 27 decision as removing a major legal impediment that has restrained the idea for decades.

“We are more and more approaching the tipping point” for the acceptance of vouchers, Mr. Friedman, who will turn 90 later this month, said in an interview last week. “The very act of removing this obstacle is a great step forward.”

President Bush, for much of his 17 months in office only a quiet supporter of vouchers, suddenly regained his voice on the subject last week, calling the ruling “just as historic” as the court’s 1954 decision outlawing segregation in education.

But opponents were quick to contend that many barriers, both legal and political, would prevent vouchers from expanding far beyond the government-supported programs that now exist in varying forms in Ohio, Wisconsin, Florida, Maine, and Vermont.

“Where do we go from here?” said Robert H. Chanin, the general counsel of the National Education Association, who argued against the Cleveland voucher program in the Supreme Court. “This does not end the legal battle. It simply means we no longer have the establishment clause [of the First Amendment] in our legal arsenal.”

He said voucher programs in many states could still be attacked on the basis of state constitutional language that more explicitly bars state aid to religious institutions than the First Amendment does. And the state courts would be only one arena for battling vouchers, Mr. Chanin added.

“The first line of defense has always been political,” Mr. Chanin said. “The fact that five justices approved of the idea does not mean it’s good.”

No Dramatic Break

The court issued its long-awaited decision in Zelman v. Simmons-Harris (Case No. 00-1751) on the last formal day of its 2001-02 term.

Chief Justice William H. Rehnquist, writing for the majority, said the state-enacted Cleveland Scholarship and Tutoring Program “is entirely neutral with respect to religion.”

“It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district,” he added. “It permits such individuals to exercise genuine choice among options public and private, secular and religious.”

He was joined in the majority by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Justice O’Connor cast the crucial fifth vote for upholding the Cleveland program, and she fully joined the chief justice’s opinion while also issuing her own concurrence.

The other four members of the majority had made it clear in a plurality opinion from a case decided two years ago, Mitchell v. Helms, that they were prepared to uphold a voucher program involving parental choice and neutral treatment of religious schools.

Justice O’Connor said she did not believe the majority decision “marks a dramatic break from the past.”

“The support that the Cleveland voucher program provides religious institutions is neither substantial nor atypical of existing government programs,” Justice O’Connor wrote. Many religious institutions benefit from tax policies that amount to significant sums of decreased tax revenue to the government, she said.

Justice O’Connor also argued that it was important to examine the voucher program in the context of other options open to Cleveland parents, such as magnet schools and charter schools, which Ohio calls community schools.

“I am persuaded that the Cleveland voucher program affords parents of eligible children genuine nonreligious options and is consistent with the establishment clause,” she said.

But the dissenters declared that the majority had seriously weakened the nation’s traditional refusal to provide significant government aid to religious institutions.

“The scale of the aid to religious schools approved today is unprecedented,” Justice David H. Souter said in the main dissent. “I hope that a future court will reconsider today’s dramatic departure from basic establishment-clause principle.”

Justice Souter, who was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer, read a summary of his dissent from the bench. He called the majority opinion “potentially tragic.”

Justices Stevens and Breyer also filed their own dissents.

“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy,” wrote Justice Stevens. Justice Breyer expressed fears that the voucher decision would lead to more “religiously based social conflict.”

A ‘Restrained Opinion’

In his majority opinion, Chief Justice Rehnquist said the aid at issue in the Cleveland voucher program was constitutional based on a line of rulings that began in 1983, when the high court upheld a Minnesota program authorizing tax deductions for educational expenses, including tuition at religious schools.

Then-Associate Justice Rehnquist was the author of the court’s opinion in that case, Mueller v. Allen.

The chief justice also cited the 1986 case of Witters v. Washington Department of Services for the Blind, which upheld the use of a state vocational scholarship by a graduate student at a religious seminary, and Zobrest v. Catalina Foothills School District, a 1993 decision that rejected an establishment-clause challenge to the use of a government sign-language interpreter to aid a deaf student enrolled in a Roman Catholic school.

Chief Justice Rehnquist said those cases “make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the establishment clause.”

Kenneth W. Starr, the prominent Washington lawyer who was hired by the state of Ohio to help defend the voucher program, said the chief justice had grounded his opinion “in facts that were very powerful in Cleveland.”

“Feelings ran high in this case, and I think the chief wrote a very restrained opinion,” said Mr. Starr, a former U.S.. solicitor general, federal judge, and Whitewater independent counsel.

Douglas W. Kmiec, the dean of the law school at the Catholic University of America in Washington, said the court’s ruling was not a radical departure in church-state law, but the logical extension of the Mueller line of cases.

“This is a development that could have reasonably been foreseen for some time,” Mr. Kmiec said.

But proponents of strict separation of church and state agreed with Justice Souter that the scale of the aid that flows to religious schools under the Cleveland program was particularly troublesome.

“The amount of federal aid that may go to religious education after today’s decision is startling,” Justice Souter said in a footnote. He cited an estimate from the liberal Washington group People for the American Way that a national voucher program might cost $73 billion. That would amount to about 130 percent of the Department of Education’s current annual budget.

Elliot M. Mincberg, the legal director of People for the American Way, said the decision “opens a major crack in [Thomas] Jefferson’s metaphorical wall of separation. A good part of that wall is coming tumbling down on Cleveland public school children.”

But like other opponents, Mr. Mincberg said vouchers still remain vulnerable to successful attack in the state courts, in legislatures, and in the court of public opinion.

“The fight with respect to school vouchers has only just begun,” he said.

Parental Satisfaction

The Cleveland case took seven years from the enactment of the voucher plan in 1995 to reach a conclusion in the nation’s highest court late last month.

The program pays up to $2,250 in tuition for each student to attend one of 49 schools currently participating. Parents are expected to contribute either 10 percent or 25 percent of the school’s tuition, depending on family income.

The voucher program was challenged soon after its enactment by groups of taxpayers backed by the major teachers’ unions and such organizations as the American Civil Liberties Union, People for the American Way, and Americans United for Separation of Church and State. The challenge bounced from state courts in Columbus to federal courts in Cleveland and Cincinnati, where the U.S. Court of Appeals for the 6th Circuit struck down the program last year as a violation of the establishment clause.

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 that the Supreme Court struck down in the 1973 case of Committee for Public Education and Religious Liberty v. Nyquist.

The 6th Circuit 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 appeals.

The justices’ written opinions reflect the intensity and complexity of the national debate over vouchers and school choice in recent years. The efficacy of the Cleveland program was not really at issue, but some of the justices still delved into the evidence from the Cleveland case about student achievement and parental satisfaction.

Justice O’Connor, in her concurrence, cited the school choice research of Paul E. Peterson, William G. Howell, and Jay P. Greene that some private schools participating in the voucher program in Cleveland had higher rates of parental satisfaction than public schools did. Justice Souter shot back that “objective excellence,” in the form of state tests, should be the benchmark, not parental satisfaction, and he was unimpressed with the achievement of voucher schools during their early years.

Justice Thomas expressed the most provocative sentiments in his concurrence.

“Today, many of our inner-city public schools deny emancipation to urban minority students,” he said. Despite the promises of Brown v. Board of Education, the desegregation decision 48 years ago, “urban children have been forced into a system that continually fails them,” he added.

“Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs because they provide the greatest educational opportunities for their children in struggling communities,” said Justice Thomas, the court’s only African-American member.

Mr. Peterson, a professor at Harvard University’s John F. Kennedy School of Government, said Justice Thomas’ opinion “will come to be seen as the most important one in the long run.”

“He really emphasizes that we have a two- tier system of education in this country,” Mr. Peterson said. “One for whites and one for blacks. Giving black families vouchers gives them the same options most white families have.”

In the days after the ruling, as the nation also debated a controversial federal appeals court ruling about the Pledge of Allegiance, there appeared to be serious reflection about whether vouchers now deserved a new look, or whether other approaches to improving public education should be tried instead.

“If you had asked me two weeks ago [before the voucher ruling], I would have agreed with the proposition that a decision such as this was not going to change the debate much,” Mr. Peterson said. “But I am quite amazed at how much the landscape has changed. The president has personally put his prestige behind vouchers in a way he never has before.”

‘A New Conversation’

Joseph P. Viteritti, a professor of public policy at New York University’s Robert F. Wagner School of Public Service and the author of a book about school choice, said the Supreme Court decision “has restructured the debate.”

“I think there is a new conversation going on now based on a realization that urban education has not lived up to its promise,” he said.

James W. Fraser, a professor of history and education at Northeastern University in Boston and the dean of its education school, said it could be 10 to 20 years before the full impact of the voucher ruling is realized.

“In the Brown v. Board of Education case, the Supreme Court said segregation must end, and while it was a slower process than anyone dreamed, the country knew the result that would eventually be achieved,” said Mr. Fraser, who has written a book about the separation of church and state in education.

“This ruling is the single largest move away from the concept of common schools in our history,” he added. “But it is a permissive ruling, and it remains to be seen whether it will actually result in a real movement away from common schools. The future is really up for grabs.”

A version of this article appeared in the July 10, 2002 edition of Education Week as Justices Settle Case, Nettle Policy Debate


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