Supreme Court hears arguments in voucher case

By Julie Underwood

3/5/02 – On Feb. 20, the Supreme Court heard one of the most important cases of the term, Zelman v. Simmons Harris, which involves the constitutionality of the Cleveland voucher program. The question is whether the Establishment Clause in the First Amendment is violated when tax dollars are sent to private religious schools in the form of tuition vouchers.

The four-year-old Cleveland program provides vouchers worth up to $2,350 for lower-income, elementary-age children. Currently, up to 4,000 children are using vouchers–nearly all of them at religious schools.

A final decision will be announced before the Supreme Court's term ends in July.

Hanging in the balance in this case is 30 years of Supreme Court case law, basically prohibiting direct government funding of religious schools. In terms of vouchers, a Supreme Court decision in favor of the Cleveland program would allow other state programs to include religious schools if they enact private voucher programs.

But the impact would go far beyond vouchers. The Supreme Court's decision in Zelman could have huge implications for many other forms of "parochiaid"–government benefits and funding to religious schools.

The result of the case probably rests in the hands of Justice Sandra Day O'Connor, as she tends to be the swing vote on many issues, but particularly on religion cases.

In addition, O'Connor is usually the most active questioner during oral arguments. During the arguments on the voucher case, it was her questions that predominated.

O'Connor's focus appeared to be on whether Cleveland's public "community schools" and magnet schools offered as an alternative to Cleveland families should be considered with the voucher schools when thinking about the range of options available under the voucher plan.

This is important because 99 percent of the money spent in the voucher program goes to religious schools. If other private, nonreligious schools were considered in the mix, this number would be diluted and thus possibly less offensive under the Establishment Clause.

Justice Anthony M. Kennedy continued to press on this issue, too, questioning whether a larger range of options showed that the voucher program was neutral toward religious schools.

Comparing this case to an earlier Supreme Court decision in which tuition vouchers were found unconstitutional, Justice David H. Souter stated: "At the end of the day, a massive amount of money went to the religious schools in Nyquist, and a massive amount of money goes to the religious schools here. That's the sticking point."

Justice Stephen Breyer, possibly indicating his leaning against the program, asked whether a visitor from another country looking at this program would believe that our government was endorsing religion through support of religious schools.

Both attorneys who argued against the voucher program, Robert Chanin, general counsel of the National Education Association, and professor Marvin Frankel, tried to draw the Court's attention to the ongoing problem of school finance in the state of Ohio.

The Ohio Supreme Court has held that the legislature has failed to fulfill its state constitutional obligation to public education by not adequately funding the state's educational needs.

Justice Antonin Scalia, who has spoken in favor of vouchers before, seized on this point saying, "It isn't a money problem, it's a monopoly problem." According to Scalia, "It's not a problem of money" because "inner-city parochial schools spend much less and do a better job [than the public schools]."

In the end, the Supreme Court will only decide if it is constitutional under the Establishment Clause to include religious schools in a voucher program. The broader question is whether private school vouchers are good educational policy.

That debate has played out in state legislatures and voters' initiatives across the nation. The result of the debate is clear: The American public supports public schools, not vouchers. Voters have rejected every voucher proposal that has come up in the past 30 years, and 37 state legislatures have rejected vouchers in the past decade.

State governments and voters have rejected vouchers because they do not want to take critical dollars away from public schools. They do not want to leave behind the special education children that many private schools are not willing to serve. And they have rejected vouchers because they want accountability for their taxpayer dollars.

The so-called "choice" promised by vouchers rings hollow. The real choice, the best choice, is to ensure that all of America's public schools are high-quality places of learning for all students. No child deserves less. This debate is about what's best for all of America's children–not just those with certain advantages or those lucky enough to be able to take advantage of a special program.

Vouchers represent the abandonment of public schools. Vouchers are about helping a few at the expense of the many.

The essence of America's public schools is that they are publicly funded, publicly accountable, and open to everyone. Voucher programs abandon those cherished principles. Americans want and need strong public schools for all students–not tax-funded vouchers for parochial schools.

Julie Underwood is general counsel of NSBA.