WASHINGTON, Nov. 10 (JTA) – The U.S. Supreme Court has turned away an opportunity to enter into the school voucher fray, and with it, the potential for a landmark church-state ruling many in the American Jewish community said was sorely needed. The justices on Monday left intact Wisconsin’s controversial school voucher program, which provides tuition vouchers for low-income students to attend the school of their choice, including religiously affiliated schools, in Milwaukee. The action, taken by an 8-1 vote without comment, sets no national precedent. But the move could have important ramifications for legal battles over vouchers in six other states, as well as Congress’ efforts to create a voucher program in the District of Columbia and on the national level. It is also certain to galvanize voucher proponents, including those in the Jewish community, who have long argued that the idea of giving families taxpayer dollars to use at private or parochial schools does not violate the constitutionally mandated separation of church and state. Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, claimed a “significant victory” for voucher advocates. “We would have preferred a more explicit statement from the Supreme Court on this issue and we’re confident we’ll eventually get one, but at a minimum this clearly refutes those who would say that voucher programs are unquestionably unconstitutional,” Diament said. David Zwiebel, general counsel and director of government affairs for the fervently Orthodox Agudath Israel, called the court’s move “good news.” But he said, “I think we all would have been better off if the Supreme Court had taken this case.” Jewish groups on both sides of the debate filed friend-of-the-court briefs urging the justices to rule on vouchers and clarify what has become a nebulous area of First Amendment law. Instead, the high court decided to duck the issue, at least for now. “It’s hard to see how that conflict is going to be resolved without another Supreme Court opinion because the lower courts are all over the map on this subject,” said Marc Stern, co-director of the American Jewish Congress’ legal department. The Supreme Court’s action, he added, “is a disappointment in the sense that the confusion will continue and confusion breeds a contempt for law because people think that anything goes.” The debate over school vouchers has sharply divided the Jewish community. Most Jewish organizations oppose vouchers, saying it violates the separation of church and state while undermining public education. But many Orthodox and politically conservative Jews favor the idea, arguing that vouchers are needed to provide better access to a quality Jewish education. The Wisconsin Supreme Court’s ruling, issued in June, upheld the state Legislature’s voucher program for Milwaukee, which allows as many as 15,000 students from low-income families to receive up to $5,000 per year in taxpayer dollars to attend the school of their choice. About three-fourths of the private schools in the city are religiously affiliated. The court said it upheld the program “because it has a secular purpose” and “will not have the primary effect of advancing religion.” The U.S. Supreme Court’s action this week allows the Wisconsin program to proceed without the ominous constitutional cloud that had been looming over it since its inception. That is a “very disappointing” development for Milwaukee’s Jewish community, said David Feiff, president of the Milwaukee Jewish Council, because “Wisconsin taxpayers are going to continue to be compelled to support religious schools in a fashion we believe violates the federal Constitution.” Only a small handful of Jewish students are currently using the vouchers to attend one of three Jewish day schools in the Milwaukee area, Feiff said, adding that a recent survey of Milwaukee’s Jewish community found 80 percent opposed to the city’s program. While the U.S. Supreme Court gave no indication as to why it decided not to take the Wisconsin case, some legal analysts speculated that the justices may have chosen to wait for a greater body of lower court decisions to build up before weighing in on the issue. Others surmised that with a court so badly divided on church-state issues, neither side may have been confident enough of commanding a majority to choose to rule on vouchers at this time. The sidestepping of the issue assures continued legal wrangling for the foreseeable future. Another voucher case is almost certain to make its way to the Supreme Court eventually, but legal analysts said it appears unlikely that will happen anytime soon. That means the voucher battle will continue to be fought in the states, namely, Arizona, Maine, New Jersey, Ohio, Pennsylvania and Vermont, where litigation is pending. Voucher advocates will cite the Wisconsin ruling to bolster their case, while opponents, among other things, will point to the defeat of a voucher measure by voters in Colorado earlier this month. “We’ll all go merrily along, but no one will really know the answer to the constitutional question,” Stern of the AJCongress said.
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