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Supreme Court Ruling on Vouchers Elicits Expected Mixed Jewish Reaction

June 28, 2002
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The U.S. Supreme Court’s long-awaited ruling on school vouchers may not be the last word.

In a narrow 5-4 decision issued Thursday, the high court said that vouchers, which provide government funds for students to attend parochial or private schools, do not violate the constitutional separation of church and state.

The battleground now is likely to move to the state level, where many Jewish groups plan to mount an offensive against vouchers, arguing that they are bad public policy even if constitutional.

It does not appear that the decision, which came on the last official day for the high court, will have substantial implications for other church-state issues.

The majority opinion made a clear distinction between vouchers and direct government funding of religious schools. The decision thus is not likely to impact the issue of charitable choice, which allows federal money to go directly to religious groups that provide social services.

The fight could be taken up at the congressional level, but with the federal government straining to finance the war on terrorism, it will be hard for lawmakers to make the case for more government funding for schools.

The court decision came a day after a U.S. appeals court decided that the words “under God” in the Pledge of Allegiance are unconstitutional.

Americans across the political and religious spectrum expressed outrage.

Jewish analysts worried that the Pledge decision could end up trivializing all church-state issues.

In contrast, the vouchers case was followed very closely in the Jewish community, where it remains a divisive issue.

The American Jewish Congress was involved in preparing the plaintiff’s brief against the vouchers, and the American Jewish Committee and ADL also joined a brief on the voucher opponents’ side.

Reaction to the ruling in the Jewish community was predictably mixed, with longtime opponents such as the Anti- Defamation League calling the decision “a step backwards for religious liberty.”

Opponents cite vouchers as a breach of church-state separation and say they drain money from the public school system.

In contrast, Orthodox groups, which think vouchers could help fund Jewish day school education, praised the ruling.

The case before the Supreme Court — Zalman, Superintendent of Public Instruction of Ohio, et al. v. Simmons-Harris, et al. — addressed whether the state-funded Cleveland Scholarship and Tutoring Program subsidized religion. The program, targeted but not limited to low-income families, was started in 1995 to rescue the city’s failing schools.

Opponents of the program said such a subsidy would violate the First Amendment’s Establishment Clause, which prohibits the government from supporting a religion.

But the Supreme Court emphasized the choice contained in a voucher program.

“This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice,” Chief Justice William Rehnquist wrote for the majority.

Justices Antonin Scalia, Sandra Day O’Connor, Clarence Thomas and Anthony Kennedy joined with Rehnquist’s decision.

Justices Ruth Bader Ginsburg, Stephen Breyer, John Paul Stevens and David Souter dissented.

Breyer wrote that publicly financed voucher programs pose a risk in terms of religiously-based social conflict, and that parental choice does not alleviate the constitutional problem of vouchers.

Jewish groups were not surprised by Thursday’s decision. Still, the high court’s final say is anything but for voucher opponents.

The ADL said that it would continue to fight vouchers at the state level on policy and constitutional grounds.

The American Jewish Committee said the decision was “a troubling endorsement of unsound public policy” and said it, too, would fight vouchers under state constitutional laws that often contain more stringent safeguards.

Jeffrey Sinensky, legal counsel and director of domestic policy for AJCommittee, said they would mount a “proactive, aggressive” campaign both to convince those states with stronger church-state separation safeguards to beat back vouchers, and to encourage other states not to be forced into accepting voucher programs.

Hannah Rosenthal, executive director of the Jewish Council for Public Affairs, sounded a warning of government support for potentially anti-Semitic teachings.

“Schools run by the Nation of Islam that teach anti-Semitic lies could now receive taxpayer money” through the vouchers that families use.

“This puts the government in the untenable position of funding hate, because it cannot be in the business of reviewing private and parochial school curricula,” she said.

Rosenthal said debate in the Jewish community will continue about the issue of vouchers, but she urged states to resist the temptation to adopt voucher programs.

“Just because vouchers are Constitutional does not mean they are good public policy,” she said.

Orthodox groups, however, believe government support to religious schools is not only acceptable but necessary for the Jewish community.

Vouchers are not a panacea, but they will provide help to parents, said Abba Cohen, director and counsel of the Washington office of Agudath Israel of America, a fervently Orthodox group.

Voucher opponents say the Jewish community should finance its day school systems, but Cohen argues that position ignores the reality.

“It would be wonderful if the Jewish community would step up, but that is simply not happening,” Cohen said.

Mark Pelavin, associate director of the Religious Action Center of Reform Judaism, countered that the Jewish community should not build up its day school system at the expense of the public school system.

Opponents of vouchers also question whether most voucher programs would benefit Jewish students, since most of the programs target low income families.

Critics also believe accepting government aid in any form opens the door to government entanglement.

The potential for government entanglement is of serious concern to the Orthodox community, Cohen said, but schools should have the option to accept vouchers and decide for themselves whether it would compromise their religious beliefs.

The Orthodox Union, which joined a friend-of-the-court brief supporting the voucher program, hailed the decision and said it was an example of government neutrality rather than hostility toward religion.

The high court had studiously avoided a definitive ruling on school vouchers for years.

But they have approached the issue of government funding of private schools in a piecemeal fashion.

In 2000, for example, the court ruled in Mitchell v. Helms that government funds could be used to provide computers and other instructional equipment to private sectarian schools. But that ruling came with restrictions against the use of such aid for religious purposes.

As with many close church-state cases, the outcome of this case heavily depended on Justice O’Connor’s swing vote.

In her concurrence with Chief Justice Rehnquist’s opinion, O’Connor wrote: “I do not believe that today’s decision, when considered in light of other longstanding government programs that impact religious organizations and our prior Establishment Clause jurisprudence, marks a dramatic break from the past.”

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

Justices look at these church-state cases as issues of individual choice and government even-handedness toward religion, rather than a strict “no government aid to religious schools” policy, he said.

The ground has shifted and the Jewish community’s bedrock assumption that the Establishment Clause guards against any government support for religious schools “doesn’t work anymore,” Stern said.

“If you want to be effective, you have to rethink how you talk and how you think about this issue,” he said.

Now, it appears that Pledge of Allegiance case, which leapt to the forefront of public debate this week, could also find its way to the Supreme Court.

The federal court ruled Wednesday that the phrase “under God,” which the U.S. Congress added to the pledge of Allegiance in 1954, amounted to an endorsement of religion.

In this case, Jewish groups were in rare agreement in criticizing the court’s decision, but for different reasons.

AJCongress’ Stern said the decision could discredit the whole issue of church-state separation in the public’s eyes.

The ADL said it disagreed with the decision, and that the case was not a priority compared to issues of vouchers, school prayer and charitable choice.

Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, said religious liberty is best promoted by protecting its expression in the public square, adding that our society’s institutions should not be sanitized from any mention of religion.

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