Focus on Issues: Supreme Court May Resolve Debate over School Vouchers

The debate over school vouchers, a source of long-running and often bitter contention in the Jewish community, could be resolved in the coming term of the U.S. Supreme Court.

In June, the Wisconsin Supreme Court handed a major victory to voucher advocates when it upheld as constitutional a program in Milwaukee, one of only five pilot voucher programs in the United States.

The decision marked the highest-level court decision to date on the controversial idea of giving families taxpayer dollars to use at private or religious schools. With an appeal to the Supreme Court pending, the Wisconsin case has emerged as a likely candidate for a landmark ruling by the justices on the constitutionality of vouchers.

As the court opens its term Oct. 5, the docket so far contains only a few cases of interest to Jewish legal activists, including a dispute over how the government should conduct the 2000 census and a case related to El Al Israel Airlines’ security procedures. The justices, however, plan to determine most of their caseload in the coming weeks.

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.

Now, both sides have finally reached consensus on at least one issue: The time has come for the Supreme Court to settle the matter.

Jewish groups on both sides of the debate have filed friend-of-the-court briefs urging the justices to rule on vouchers and clarify what has long been a nebulous area of First Amendment law.

“Both sides have agreed that they want the Supreme Court to take this case sooner rather than later,” said Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, which supports vouchers and joined in a brief asking the justices to hear the Wisconsin case.

The American Jewish Congress, the American Jewish Committee and the Jewish Council for Public Affairs, all of which oppose vouchers, submitted a brief urging the justices to “bring order to the discordant approaches” the court has taken in church-state cases. The Anti-Defamation League is filing a similar brief of its own.

With the outcome of any ruling on vouchers far from certain, some Jewish legal activists acknowledge that the appeal to the high court carries definite risks. But most agree there is a dire need for clarity in the law and that putting off the question serves no one’s interests.

Whether the Supreme Court sees it that way remains to be seen. The justices may well decide to wait for additional lower courts to weigh in on the issue before taking up the matter themselves.

“The court has been conspicuous in the last year or two in avoiding church- state cases,” said Marc Stern, co-director of the AJCongress’ legal department. But if the justices do hear a voucher case, he added, it has the potential to be “one of those monumental decisions that come along once in a generation.”

On another front, some activists have taken a keen interest in the way the government plans to conduct the 2000 census.

The court agreed in September to hear the Clinton administration’s appeal of a ruling that barred the use of statistical sampling in counting the nation’s population.

Both the Clinton administration, which is responsible for conducting the census, and the House of Representatives, which brought a successful lawsuit blocking the Census Bureau’s plan, urged the court to rule on the matter.

The Constitution requires that “actual enumeration” of the population be done every 10 years, but officials disagree over how to get an accurate count.

The Clinton administration and other Democrats argue that the traditional head- counting method ends up missing millions of people. Instead, they want to combine those results with a statistical sample that relies on information from a representative group to estimate the number and demographic characteristics of Americans who fail to answer questionnaires or are missed in door-to-door surveys.

Congressional Republicans argue that in addition to being unlawful, sampling procedures could become subject to political manipulation.

The Bush administration acknowledged that it missed 4 million people in the 1990 census, but refused to make a statistical adjustment to correct it.

Poor people and ethnic minorities were disproportionately undercounted — the census missed about 2 percent of the overall population, but left out 4.8 percent of the black population and 5.2 percent of the Hispanic population.

The problem carries important political ramifications because those groups are more likely to vote for Democrats and because the census determines the boundaries of congressional and state legislative districts.

Jewish interest in the issue stems from the community’s “historic concern” for the needs of minority groups, said Jeffrey Sinensky, legal director and general counsel for the AJCommittee.

But because the census also determines the distribution of billions of dollars of federal aid to communities, there could also be implications for Jewish federation agencies.

Some legal observers said a more accurate count of those living in poverty could net more federal funding to certain communities, which could in turn have a positive impact on the various grants Jewish federations receive.

“The best way to assure that those in the Jewish community receive what they should receive is to make sure that the count is as accurate as possible,” Sinensky said.

Oral arguments in Census Bureau vs. House of Representatives are scheduled for Nov. 30, with a decision expected sometime next year.

Another case taken by the court involves El Al and could affect the Israeli airline’s security measures.

An appeals court last year found that Tsui Yuan Tseng, a clinical nutritionist at Beth Israel Medical Center, could sue the airline under New York personal- injury law for emotional trauma she claims stemmed from a stringent El Al security search.

The incident occurred in 1993, when Tseng, while checking in for a flight from John F. Kennedy International Airport in New York to Tel Aviv, was classified as a “high-risk” passenger, confined for more than an hour, questioned and subjected to a search by a female security guard of her entire body, including her breasts and groin area.

Tseng sued for $5 million, accusing El Al of false imprisonment, inflicting psychological and emotional injuries and damaging or losing some of her personal belongings.

The airline, backed by the Clinton administration, has argued that it is not liable because an international treaty known as the Warsaw Convention covers all injuries sustained during international air travel.

Although the immediate issue before the high court is the viability of the Warsaw Convention — and not El Al’s security practices — some legal experts say that if the airlines becomes subject to liability, it may cause El Al and other carriers to reconsider some of their practices.