School Choice & Charters

A School Choice For the Supreme Court

By Mark Walsh — February 27, 2002 7 min read

At the mostly orderly rallies at the court Feb. 20, voucher opponent Rev. Graylan Hagler has a brief conflict with orange-capped voucher supporters.
—Allison Shelley/Education Week

A long-awaited constitutional showdown over religious school vouchers finally reached the U.S. Supreme Court last week, with the justices engaging in a vigorous debate over school choice that often put voucher opponents on the defensive.

Justice Sandra Day O’Connor, a crucial swing vote on a court that has largely staked out its views on government aid for religious schools, repeatedly sparred with the principal lawyer arguing against vouchers during the Feb. 20 session.

Justice O’Connor suggested that the Ohio program providing $2,250 tuition vouchers to Cleveland children to attend private and religious schools should be analyzed in light of other school options available to parents in the city, such as tutorial grants and charter schools. Voucher proponents likewise advance that view.

“If you want to look at parents’ choices, then you have to look at the whole program, don’t you?” she asked Robert H. Chanin, the general counsel of the National Education Association.

“This court has always been very program-specific in its financial-aid cases,” Mr. Chanin replied. “If public money that is reasonably attributable to the state goes to pay for religious education, it violates the Constitution.”

The oral arguments in Zelman v. Simmons-Harris (Case No. 00-1751) were allotted 80 minutes instead of the customary one hour, a sign of the case’s importance to the court, and they included a total of five lawyers instead of the usual one per side.

Still, the arguments over the constitutionality of voucher programs that include religious schools moved along briskly. The discussion largely lived up to its billing as the biggest education case to be argued in a generation. A ruling in the case is expected by early July.

‘True Private Choice’

A decision upholding the constitutionality of including religious schools in voucher programs would likely provide new momentum not only for vouchers, but also for tax credits for private school tuition and other government benefits that might aid religion.

A high court ruling against vouchers could end or curtail programs in Cleveland, Milwaukee, and Florida, and might close the door on a movement born in the 1950s.

Judith L. French, an assistant attorney general of Ohio, told the justices that the voucher program provides a neutral benefit that offers “true private choice to parents.”

Also arguing in support of vouchers was U.S. Solicitor General Theodore B. Olson, who said the program was Ohio’s response to “a manifestly failing system” of public schools in Cleveland.

He directed the court to evidence about the effects of Milwaukee’s pioneering voucher program. Milwaukee’s experience, he argued, shows that over time, more secular private schools emerged to participate in the program, and that “the existence of the alternative has improved the public schools.”

Several justices who traditionally have voted to uphold strict separation of church and state seemed skeptical, however, about the constitutionality of the Cleveland Scholarship and Tutoring Program, enacted by the Ohio legislature in 1995. It currently aids some 4,200 students from low-income families. (“High Court High Noon,” Feb. 13, 2002.)

Justice David H. Souter said that despite its professed neutrality, the program results in “a massive amount of assistance to religious schools here. That is the sticking point.”

Justice Ruth Bader Ginsburg noted that close to 99 percent of the students receiving vouchers this year are attending religiously affiliated schools. Justice John Paul Stevens said at one point that the Cleveland case appeared similar in important respects to a case that involved New York state grants for private school tuition.

In Committee for Public Education and Religious Liberty v. Nyquist, the Supreme Court struck down the New York program in 1973.

Justices at the conservative end of the court’s spectrum were more sympathetic to the Cleveland program.

Justice Antonin Scalia was the most aggressively pro-voucher in his questioning. Addressing Mr. Chanin’s point that religious schools make up an overwhelming percentage of the schools participating in the Cleveland program, Justice Scalia pointed out that the proportion was once lower, but that two of the largest secular schools in the program had converted to charter schools.

“Here we have a failed public school system,” he added. “It so happens that the only up-and-running schools in the inner city are religious schools.”

‘A Monopoly Problem’

Mr. Chanin responded that the problems of the city’s public schools were the result of inadequate funding, adding, “I do not believe that a crisis in the Cleveland schools is a license to ignore the Constitution.”

Justice Scalia, mentioning that the per-pupil expenditure in Cleveland exceeds $7,000 per year, said, “It isn’t a money problem, it’s a monopoly problem.”

Later, he told the other lawyer arguing against the voucher program, former U.S. District Judge Marvin E. Frankel of New York City, that “the studies I’m familiar with show that inner-city parochial schools do a much better job than the public schools with more funds.”

Observers of the Supreme Court arguments were listening closely to the comments of the two justices considered to be holding the cards in this case: Justices O’Connor and Stephen G. Breyer.

In its 2000 decision 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.

Three justices joined with Justice Clarence Thomas in an opinion in that case that made it fairly clear they would uphold any government aid to religious schools, provided it 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 Scalia and Anthony M. Kennedy—are viewed as likely to rule in favor of the Cleveland voucher program.

Justice Thomas did not speak during the arguments last week, but nothing said by the other three suggested they have significantly modified their views.

The three dissenters in Helms—Justices Stevens, Souter, and Ginsburg—are viewed as unlikely to uphold the voucher plan.

In a concurring opinion in Helms joined by Justice Breyer, Justice O’Connor expressed concern that Justice Thomas’ approach would go too far in approving government aid to religion.

Last week, Justice O’Connor asked numerous questions of both sides. She focused somewhat on Ohio’s charter schools, which it calls “community schools.”

“Mr. Chanin, wait just a minute,” Justice O’Connor said at one point, addressing the NEA lawyer. “Do we not have to look at all the alternatives” to the traditional public school system, she said, in deciding whether Cleveland parents have a range of choices in how they use government money for schooling.

When Mr. Chanin stressed that the court has traditionally considered the constitutionality of programs on a program-by-program basis, Justice O’Connor said, “I’m not sure that’s proper.”

If Justice O’Connor appeared to lean toward the pro-voucher position, Justice Breyer expressed qualms about the Ohio program.

He asked David J. Young, a pro-voucher lawyer representing several private schools participating in the program, to imagine what someone “from Europe or Africa” would make of the U.S. educational system if it had Cleveland-style vouchers on a larger scale.

“Wouldn’t you say the government endorses religious education in massive amounts?” Justice Breyer asked.

Mr. Young said, “Not a dollar flows to a religiously affiliated school in this program but for” the choices of parents.

The arguments found the lawyers and justices delving into some of the intricacies of education policy. There were references to prominent figures in the long-running policy debates over education. And the justices struggled to grasp the concept of charter schools. The fact that Ohio calls the independent public schools “community schools” may have added to their confusion.

“Are ‘community schools’ public schools?” Justice O’Connor asked.

Ms. French, the assistant state attorney general, explained that they were part of the public school system, yet an alternative to it.

“They charge tuition?” asked Justice Scalia, who was under the impression that they did.

No, Ms. French said, they do not charge tuition.

Similar questions arose about the voucher program’s particulars. The court did indeed appear to be taking a fact-specific look at a case that likely will shape the contours of any future debate over private school choice in the United States.

A version of this article appeared in the February 27, 2002 edition of Education Week as A School Choice For the Supreme Court

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