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Religious voucher { June 28 2002 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2002/06/28/national/28VOUC.htmlhttp://www.nytimes.com/2002/06/28/national/28VOUC.html
June 28, 2002
Supreme Court Upholds Voucher System That Pays Religious Schools' Tuition
By LINDA GREENHOUSE
WASHINGTON, June 27 — The Supreme Court, concluding that Cleveland's voucher plan was "a program of true private choice," today upheld the use of public money for religious school tuition in a decisive 5-to-4 ruling that the majority called a logical outgrowth of recent decisions and the dissenters described as a fundamental break with the past.
The most important ruling on religion and the schools in the 40 years since the court declared organized prayer in the public schools to be unconstitutional, the decision, issued on the final day of the court's 2001-2002 term, will not end the passionate debate over "school choice."
Rather, it will move that debate to state courts, in battles over state constitutional objections to voucher programs, and to state legislatures and the ballot box. While a handful of voucher programs are now in operation, they have been defeated consistently in referendums.
Voucher supporters have attributed those defeats to the legal cloud over the concept that the court removed today.
"This allows the school choice movement to shift from defense to offense," said Clint Bolick, vice president of the Institute for Justice, a nonprofit group here that is a leading voucher supporter.
But voucher opponents said that their courtroom setback did not mean they would lose the public opinion war. "The public mindset won't change," said Robert Chanin, general counsel of the National Education Association, the teachers union, who represented voucher opponents in the Supreme Court.
The decision also raises the prospect of new legal battles over what strings might be attached, in the form of nondiscrimination obligations or adherence to other public policies, to the public money that flows to religious school coffers.
Under Cleveland's six-year-old program, some 3,700 of the district's 75,000 children use vouchers of up to $2,250 to attend private schools, with nearly all — 96 percent in the 1999-2000 school year that the court examined — attending religious schools.
Based in large part on that outcome, the federal appeals court in Cincinnati declared in December 2000 that the program had the "impermissible effect of promoting sectarian schools" and thus violated the First Amendment's prohibition against the "establishment" of religion.
But the 96 percent figure lacked "constitutional significance," Chief Justice William H. Rehnquist wrote for the majority today, because the program was "neutral in all respects toward religion" and parents exercised "genuine choice" in where to use their vouchers.
Further, the chief justice said, the figure was misleading in not taking into account the thousands of children who exercised their choice under the Cleveland plan to leave their neighborhood public schools and attend publicly financed magnet or charter schools. When those were added to the denominator, he said, the proportion of voucher students attending religious schools dropped to 16.5 percent.
The four dissenters objected that it was the majority that made misleading use of statistics by counting students who attended nontraditional but tuition-free public schools as part of the voucher population.
"If the majority wishes to claim that choice is a criterion, it must define choice in a way that can function as a criterion with a practical capacity to screen something out," Justice David H. Souter said for himself and the three others, Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
Chief Justice Rehnquist's majority opinion was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Sandra Day O'Connor. It was significant that Justice O'Connor, while filing her own concurring opinion, fully subscribed to the majority opinion as well. In past church-state cases, as in a decision two years ago that upheld federal loans of computer equipment to parochial schools, Justice O'Connor has sometimes concurred only in the "judgment," leaving the dimensions of the ruling somewhat unclear.
In her opinion today, Justice O'Connor did suggest that the availability of other types of public school programs among the options presented to the Cleveland students helped persuade her that those eligible for vouchers "have a genuine choice between religious and nonreligious schools." She added, "In looking at the voucher program, all the choices available to potential beneficiaries of the government program should be considered."
But the dissenters did not find much comfort or a limiting principle in Justice O'Connor's approach; to the contrary, they expressed alarm at the ease with which the majority had relabeled the relevant categories in the case.
"The wide range of choices that have been made available to students within the public school system has no bearing on the question whether the state may pay the tuition for students who wish to reject public education entirely and attend private schools that will provide them with a sectarian education," Justice Stevens said in his dissenting opinion.
While also joining the majority, Justice Thomas filed a separate opinion emphasizing the role of school choice on the opportunities available to poor urban children.
"The promise of public school education has failed poor inner-city blacks," he said, adding, "If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination's effects."
His opinion echoed Ohio's defense of the Cleveland program, which the State Legislature enacted after a federal court placed the failing school district, where fewer than one-third of the students graduate from high school, under state control. Many voucher supporters have argued that the program gives poor children the range of choices that middle-class families have enjoyed.
The school choice movement has drawn on many sources of support, including libertarian and free-market groups that see marketplace competition as the best way to force public schools to improve.
The dissenters today said that the $2,250 cap on tuition gave an illusion of choice that in fact steered children toward the religious schools, where tuition is below that limit, and away from secular private schools, where tuition is above it.
In his majority opinion, Zelman v. Simmons-Harris, No. 00-1751, Chief Justice Rehnquist described the court's holding as the logical if not inevitable outcome of a series of rulings dating to an opinion he wrote as an associate justice in 1983.
In that case, Mueller v. Allen, the court upheld a Minnesota law providing tax deductions for certain educational expenses that as a practical matter were incurred only by parents with children in private school. Given that nearly all private schools in Minnesota were religious, 96 percent of the beneficiaries were parents with children in religious schools.
The Minnesota program was not a constitutional violation, the court held then, because it was a neutral law that distributed money according to private parental choice. "We believe that the program challenged here is a program of true private choice," consistent with the Mueller decision and two similar rulings, the chief justice said today.
The dissenters objected that the ruling today was a sharp break from the past. Justice Breyer said voucher programs differed "in both kind and degree from aid programs upheld in the past" because they provided public money "to a core function of the church: the teaching of religious truths to young children."
Justice Breyer predicted that the decision would prove highly divisive in a country with "more then 55 different religious groups." He predicted many struggles, asking, "How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest — say, the conflict in the Middle East or the war on terrorism?"
In reply, Chief Justice Rehnquist said "the program has ignited no `divisiveness' or `strife' other than this litigation."
In a web-exclusive column, Linda Greenhouse answers readers' questions on Supreme Court rules and procedure. E-mail Ms. Greenhouse a question at scotuswb@nytimes.com. Please include your name, address and daytime telephone number; upon request names may be withheld.
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