News
Constitutional Law
Feb. 21, 2002
Split Supreme Court May Vouch for Vouchers
WASHINGTON - Taking on one of the most contentious issues in the country, the Supreme Court on Wednesday seemed poised to narrowly endorse a program that gives about 4,000 Cleveland students vouchers they can use to attend religious schools.
After a special 80-minute argument - 20 minutes longer than usual - Justice Sandra Day O'Connor, the key vote on the court, indicated she would find that the program is not an unconstitutional endorsement of religion, even though 99 percent of the students who get vouchers use them in religious schools.
O'Connor repeatedly said that she sees the voucher program more broadly. Parents in the program also can choose to send their children to "magnet schools," or "community schools" with "separate boards and programs," as well as to other private schools, or they can get tutoring grants if their children stay in the public schools, she noted.
O'Connor's vote in Zelman v. Simmons-Harris, 00-1751, was expected to be crucial because she has written or shaped all of the court's recent rulings on the Constitution's Establishment Clause. And Wednesday's argument made clear that the other justices are split 4-4 on the voucher issue.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy indicated by their questions that they strongly support the voucher program. Justice Clarence Thomas did not ask any questions but seems certain to support the program.
Meanwhile, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer sharply questioned the constitutionality of the program, which was adopted by the Ohio Legislature after a federal judge ordered the state to assume control of the troubled Cleveland school system and its 57,000 students.
Ohio Assistant Attorney General Judith L. French opened the argument by stressing that the voucher program was adopted in response to an "unprecedented educational crisis" in Cleveland.
The program is constitutional, she added, because it features "true neutrality" toward religion and provides "true choice to parents."
Stevens said that "it's irrelevant how many choices parents have" because the basic choice is "just public or secular schools."
Ginsburg agreed that "here, in fact, there is only one alternative [to public education] because nonsectarian private schools can't afford to take voucher students [with their $2,500 grants], and the suburban public schools won't."
"Is it true that 99 percent of the students are in parochial schools?" she asked French.
"Yes, that's currently true," French replied.
O'Connor jumped in to question whether community schools also benefit from the program.
"No, they are public schools, so there is no grant," French said.
"Have any private schools become community schools?" O'Connor continued.
"Yes, two," French replied.
O'Connor wondered whether the court would have to overrule a 1973 case that struck down a New York voucher program, Committee for Public School Education & Religious Liberty v. Nyquist, 413 U.S. 756, if it approved the Cleveland program.
"There are differences in the programs," French said. "Here, all students are offered the benefits, not just the chosen students [as in Nyquist]."
Souter and Stevens disputed that contention, but French said a major difference is that Cleveland parents can choose how to spend the vouchers.
Rehnquist agreed that the Cleveland program was different, and Kennedy offered that "the structure of this program is to encourage more and more alternatives over time."
David J. Young of Squire, Sanders & Dempsey in Columbus, Ohio, representing Cleveland parents who support vouchers, argued that "there is no government endorsement of religion in this program."
He noted that students who stay in the public schools can get "tutorial vouchers" as an alternative to religious schools.
But Souter wondered why the tutorial vouchers are limited to only $350, "versus the $2,500 for private schools."
Young insisted that the difference was not great enough to violate the court's endorsement precedents.
And while religious schools receive only the $2,500 vouchers, "$4,500 is spent in community schools and $8,000 in public schools" for each student, Young added. "The preference clearly is for secular schools."
Like French, he stressed that "this program was adopted because of one of the most serious educational crises in the United States," and the Legislature "tried to provide educationally disabled children with a quality education."
In any case, "there is no endorsement of religion, just choices by parents," he concluded. "Not a dollar flows to religious programs but for the independent choice of the parents."
U.S. Solicitor General Theodore B. Olson, arguing as an amicus for Ohio, stressed that the justices should "assess this program in the context of a manifestly failing system."
And under questioning by Stevens, he insisted that there were not only choices between public and religious schools, "but all of these other alternatives."
Robert H. Chanin of Washington, D.C.'s Bredhoff & Kaiser, representing parents who oppose the voucher program, ran into tough questioning from the outset.
O'Connor dismissed Chanin's reliance on the fact that 99 percent of the students attend religious schools, saying, "You have to look at the whole program. Why not look at all the options available?"
"Because that mixes together programs that are qualitatively different," Chanin replied.
O'Connor was not convinced.
"Some private schools become community schools, and they get more money than religious schools," she said. "If anything, the program is skewed against religious schools in terms of public support. Why not put community schools among the choices - your figures are skewed."
"Because that allows a backdoor approach to violate the Establishment Clause," Chanin said. "Magnet schools, community schools, are not unique. They have been around for 50 years and long were a part of this [public school] system.
"The choice for parents is only staying in the public schools or going to religious schools.
"The problems in Cleveland must be solved within the Establishment Clause. The problem is being solved around the country without vouchers, and there is no evidence that this competition from religious schools improves education for the 96 percent of the students who remain in the [public school] system."
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David Pike
Daily Journal Staff Writer
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