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Supreme Court Debates Vouchers, but Gives No Clue to Final Decision

February 21, 2002
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Your guess is as good as mine.

That’s what observers of the U.S. Supreme Court are saying about how the high court ultimately will rule on the constitutionality of school vouchers.

Oral arguments are never a clear indicator of where the court is headed, but observers seemed particularly reluctant to read the tea leaves following 80 minutes of back-and-forth Wednesday between justices and lawyers representing families involved in an Ohio voucher program.

The use of vouchers, which provide government funds for students to attend parochial or private schools, remains a divisive issue among Jewish organizations. Many groups oppose them as a breach of church-state separation, but others want to allow such use of government money, which could help parents send children to Jewish schools.

A ruling that vouchers are constitutional could have important implications for education policy and other areas, such as government funding of religious organizations that provide social services.

The case before the Supreme Court addresses whether the state-funded Cleveland Scholarship and Tutoring Program — started in 1995 to rescue the city’s failing schools — subsidizes religion. If so, opponents of the program explain, that would violate the First Amendment’s Establishment Clause, which prohibits the government from supporting a religion.

“The government is cutting checks to finance religious schools, and that the Constitution does not allow,” said Steven Sheinberg, assistant director of legal affairs for the Anti-Defamation League.

Supporters of the program say that because the low-income families eligible for the vouchers can choose between public, private and religious schools — or even tutoring help –the government is acting neutrally toward religion. Also, they say, it is the parents’ private choice that determines whether public funds follow their children to non-public schools.

The Orthodox Union noted that, over the last two decades, the high court has issued rulings in support of extending tuition tax credits to parochial school families and for the purchase of supplementary educational materials such as books and computers to all elementary schools, including parochial schools.

“The time has come for the nation’s highest court to announce once and for all that the Establishment Clause may not be used as a tool of hostility toward religious families and institutions, but that it guards America’s religious liberty by ensuring the state’s equal treatment and neutrality toward religion,” said Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs.

As with many close church-state cases, the outcome is likely to depend on the swing vote of Justice Sandra Day O’Connor. The senior associate justice asked questions about community schools and the range of options open to students, but no one pretends to know in which direction she is leaning.

“It’s a tug of war for O’Connor’s heart,” Sheinberg said.

The high court’s ruling is expected late this spring.

Whatever the outcome of the case, there has been a sharp shift in the court’s take on church-state cases, according to Marc Stern, co-director of the American Jewish Congress’ legal department.

Justices are looking at these cases as issues of individual choice and government even-handedness toward religion rather than a strict “no government aid to religious schools” policy, said Stern, who was involved in preparing the plaintiff’s brief.

Many of the justices’ questions focused on whether the government would appear to endorse religion by granting the vouchers. Ninety-nine percent of the students in the Cleveland voucher program, which grants tuition vouchers of up to $2,500, have used the money to attend religious schools.

Justice Stephen Breyer said the government did appear to be endorsing religion, which he found problematic.

“Even if that’s not what was intended, that’s the effect,” he said.

Hundreds of demonstrators stood outside the Supreme Court on Wednesday holding signs and chanting slogans. Voucher opponents held green placards that said “Public Funds for Public Schools” and wore shirts with the phrase “Say No to Vouchers.” Supporters held signs reading “My Child, My Choice,” and “Give Parents the Power to Choose.”

President Bush is a strong supporter of school vouchers. Once a centerpiece of Bush’s education plan, vouchers were left out of the federal funding bill for elementary and secondary schools. The administration’s budget proposal would give families with students in underachieving public schools a tax credit up to $2,500.

The American Jewish Committee and the ADL joined a brief on the side of the voucher opponents. The Orthodox Union joined a brief of the program’s supporters.

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