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Wednesday, February 20, 2002
By Rachel Smolkin, Post-Gazette National Bureau
WASHINGTON -- The U.S. Supreme Court this week takes up a landmark education case that promises to clarify the legality of private-school tuition vouchers, either invigorating or stifling the school-choice movement.
The high court will hear arguments today on the constitutionality of Ohio's 6-year-old "scholarship" program, which gives mostly low-income Cleveland parents publicly financed tuition grants of as much as $2,250 to send their children to a private or religious school.
The justices will decide whether Ohio's program advances religion, violating the separation of church and state guaranteed in the First Amendment of the Constitution.
About 4,000 Cleveland students have opted to accept vouchers rather than attend public schools. In the 1999-2000 school year, 82 percent of schools accepting vouchers were religious, and 96 percent of participating students attended religious schools; by 2001-02, the percentage of voucher students in religious schools had risen to 99 percent.
Voucher advocates, led by the Ohio attorney general's office and the Washington, D.C.-based Institute for Justice, assert that the program gives parents a real choice about their children's education and that public money indirectly flows to religious schools only when parents choose them.
Parents also can send their children to charter schools, known in Ohio as "community schools," which are self-governing public schools. Ohio provides community schools with $4,518 per child, double the amount for voucher students.
Vouchers supporters believe providing such choices is in keeping with the legacy of the 1954 Brown vs. Board of Education decision, which ended school segregation and overturned the "separate but equal" doctrine.
Ohio's program lets suburban schools use vouchers, but none does.
Opponents of Cleveland's school voucher program -- led by teachers unions and civil liberties groups, such as People for the American Way -- counter that vouchers violate the Constitution's "establishment clause," which bars the government from sanctioning religion.
Adversaries say Ohio's program is so heavily "skewed towards religion" that a significant portion of the voucher money will flow to religious schools no matter what "choices" parents make. Because schools can use the money however they like, it may be used to advance religious missions, including the purchase of religious icons or prayer books.
The NAACP and the NAACP Legal Defense and Educational Fund, siding with voucher opponents, denounce the analogy to Brown vs. Board of Education as "insulting to the thousands of courageous African-American parents and students who made this court's Brown decision become a reality."
Legal analysts predict that the closely divided U.S. Supreme Court will decide the case on a 5-4 ruling, with Justice Sandra Day O'Connor providing the decisive vote.
"She has been the pivotal vote in a lot of the church-state cases," said Elliot Mincberg, legal director for People for the American Way.
O'Connor appears to be "fashioning a middle course in church-and-state cases, not unlike the positions she's taken in abortion cases," said A.E. Dick Howard, a University of Virginia constitutional law professor. "She's looking for some sensible middle course that will ease the restrictions somewhat but still sound a note of caution about state aid."
The Supreme Court has declined to hear several voucher challenges, notably Milwaukee's decade-old program, which has been upheld by the Wisconsin Supreme Court.
In recent years, the high court has tended to affirm programs that channel public money to religious schools for a restricted, secular purpose, such as purchasing computers. Justices also have approved tax deductions for parents' educational expenses in public or private schools. In the 1970s, the Supreme Court overturned several tuition grant programs that funneled public money to private schools.
At particular issue here is a 1973 case, called Committee for Public Education and Religious Liberty vs. Nyquist, in which the Supreme Court overturned a New York law aimed at rescuing financially fragile religious schools. The legislature enacted three forms of aid: direct grants to private schools for "maintenance and repair;" tuition grants to low-income parents of private-school children and tax relief for parents whose income was too high to qualify for reimbursements.
Teachers unions and civil liberties groups argue that Nyquist and other court decisions, including one in a Pennsylvania case, should guide the justices to overturn Cleveland's voucher program.
But the state and its backers contend that Nyquist should not compel the justices' reasoning because the facts differ significantly, and the court's rulings on church-state issues have evolved over the last three decades.
Ohio Assistant Attorney General Judith French, who will argue before the justices, describes Ohio's law as a neutral program based on "genuine parental choice." She says Ohio doesn't give religious schools direct grants and bars schools from discriminating based on religion, race or ethnic background.
Confronting a worsening crisis in Cleveland's public schools, where only a third of students graduate, the Ohio General Assembly passed the scholarship program in 1995, and then-Gov. George Voinovich signed it into law.
"In Cleveland, generations and generations of children are being lost," said Christine Suma, a mother of four voucher recipients who has joined advocates in the suit. "Why can't I have my educational tax dollars to send my child to a school of my choice? It's really no one's business what the school is."
But voucher-foe Doris Simmons-Harris believes that "we need to start putting our money back into the school system." Her son, a 10th-grader who suffers from attention deficit disorder, attends Collinwood High School, a Cleveland public school. The nation's once-esteemed public school system is "being taken away from us, because the money's going elsewhere," said Simmons-Harris, who challenged the program soon after it began.
The Ohio Supreme Court overturned it on a technicality, which the Legislature later corrected. Voucher opponents then launched a challenge in federal court.