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O'Connor key to voucher decision

Analysis

By Tony Mauro
Special to freedomforum.org

09.27.01

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In the coming Supreme Court battle over the constitutionality of school voucher programs, the key challenge for both sides will be to win the heart and mind of Justice Sandra Day O'Connor. And she won't be a pushover for either side.

On a court that has been edging toward approval of greater government support for religious activities, it is O'Connor's fretful hesitation that determines how far the court will go.

"She is clearly the fulcrum," says Elliot Mincberg of People for the American Way, which opposes school vouchers. "It's all up to her."

The court agreed on Sept. 25 to take up the issue in the context of Ohio's voucher program — one of only three currently operating nationwide. The others are in Wisconsin and Florida. One of the ironies of the court's action is that it comes at a time when voucher programs, attacked as a drain on public schools, seem to be losing favor among the public. In spite of support from conservative leaders, including President Bush, voucher initiatives were defeated by voters in California and Michigan last fall. If the high court upholds the Ohio program as constitutional, interest is likely to grow again.

The Ohio pilot program at issue gives low-income families in Cleveland vouchers for up to $2,250 that can be used to attend private schools, including parochial schools. The checks go to students' parents, but must be signed over to the school. Eligible private schools must meet state standards and must not discriminate on the basis of race or religion. Several parents challenged the program as an unconstitutional government establishment of religion, noting that most of the eligible schools were religious. In the 1999 school year, 96% of participating students attended parochial schools.

The Ohio Supreme Court upheld the program on constitutional grounds, but federal courts struck it down. The program has been allowed to continue while appeals are pending. Last spring, the Bush administration urged the U.S. Supreme Court to review the cases, asserting that states needed clarity in the wake of conflicting rulings on the issue. The court on Sept. 25 agreed, adding a trilogy of cases involving the Ohio program to its docket and consolidating them for argument in January or February.

The court's long history of decisions in this area offers conflicting clues about the case's outcome. In the 1973 decision Committee for Public Education v. Nyquist, the court struck down a tuition-reimbursement program that benefited parochial schools. But more recently, the court has upheld programs that aided handicapped students attending parochial schools, and in the 1983 case Mueller v. Allen, the court upheld a state tax deduction for private school tuition, including parochial schools.

The 6th U.S. Circuit Court of Appeals relied on Nyquist in striking down the Ohio program, but the Bush administration urged the court to look at the more recent decisions, asserting that the 6th Circuit was "out of step" with the court's jurisprudence.

The court's most recent decision in this area, decided just last year, offers the clearest sign of how divided the court is — and how crucial O'Connor will be. In Mitchell v. Helms, the court upheld a federal program that loaned computer and other equipment to parochial and other private schools. Writing for the court, Justice Clarence Thomas said the program did not violate the establishment clause of the First Amendment because the aid was given out according to neutral criteria that did not favor religion.

"If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government," Thomas wrote, adding that the fact that most of the aid ended up going to parochial schools was irrelevant.

But O'Connor, joined by Stephen Breyer, wrote a concurring opinion that expressed concern about Thomas's elevation of the neutrality principle as the most important factor in determining the program's constitutionality.

"We have never held that a government-aid program passes constitutional muster solely because of the neutral criteria it employs as a basis for distributing aid," O'Connor wrote. "Neutrality is important, but it is by no means the only axiom in the history and precedent of the Establishment Clause."

Other important factors, she said, were whether the program diverted government aid from public uses to religious indoctrination and whether the recipients of the aid truly had an independent choice to support religious and non-religious institutions. If that choice is genuine, she said, "endorsement of the religious message is reasonably attributed to the individuals who select the path of the aid," not to the government.

How those factors play out in the Ohio voucher case will be the subject of the briefs filed between now and when the case is argued.

"It's not really a free and independent choice," says Mincberg of PFAW, noting the high percentage of students in the program who attend parochial schools. "It's like the government giving you a paycheck, but saying you can only spend it in one of 10 stores, nine of which are religious."

Voucher proponents disagree, asserting that in other cases, the court has said the relative number of religious as opposed to secular institutions receiving the aid is irrelevant to the establishment-clause issue.

"The Ohio program reflects a constitutionally sound method to provide funding for school choice," said Jay Sekulow of American Center for Law and Justice. "This is not about funding religion, but providing parents with an opportunity to select the kind of education they prefer. Religious schools should not be singled out and targeted for exclusion in this arena."

What both sides do agree on is that the case will be of enormous importance and could reshape decades' worth of Supreme Court doctrine on the separation of church and state.

"This is probably the most important church-state case in the last half-century," said Barry Lynn, executive director of Americans United for Separation of Church and State, which helped challenge the Ohio program.

Clint Bolick of Institute for Justice, which supports the program, said, "This is the most important educational opportunity case since Brown v. Board of Education."

Steven Shapiro of the American Civil Liberties Union said, "The simple fact is that the Supreme Court has never approved such a massive program of public aid for religious instruction in its history."

The three Ohio cases granted review by the court are Zelman v. Simmons-Harris, Hanna Perkins School v. Simmons-Harris, and Taylor v. Simmons-Harris.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

Related

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Analysis School voucher controversy to take spotlight, but Internet pornography, adult bookstores and protest permits also will share stage.  10.01.01

School voucher case offers test of church-state separation
Supreme Court will hear arguments this week on Cleveland's 6-year-old school-choice program.  02.18.02

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Justices overturn appeals court decision, say public money can be used to buy computers, other instructional materials for religious schools.  06.28.00

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