Two takes on whether school vouchers are constitutional

If children attend a parochial school, religious indoctrination will make up a part of their educational experience. There's nothing wrong with that, argues Steven Shapiro, legal director of the New York-based American Civil Liberties Union - unless their school tuition is being paid by a government-sponsored voucher. In that case, it violates the Constitution.

In a debate about the constitutionality of school vouchers last week at New York University Law School, Mr. Shapiro squared off against Clint Bolick, vice president and director of litigation at the Institute for Justice in Washington.

The two concurred that this fall, the US Supreme Court is likely to agree to review the decision of a Cleveland circuit court that struck down a voucher program there last year, ruling it was a violation of the principle of separation of church and state.

Mr. Bolick predicted that the high court will overturn that decision and allow the voucher movement to flower, while Shapiro expects the opposite.

The positions of some of the nine justices are not entirely clear, but Shapiro and Bolick both said the vote of Justice Sandra Day O'Connor would be key - if she doesn't step down before the case is heard.

Although nonsectarian schools can also be funded by vouchers, most vouchers so far are flowing to schools with a religious affiliation. In Cleveland, for example, 95 percent of students using vouchers go to religious schools.

Allowing students to use vouchers if their public schools fail to improve is part of President Bush's education proposal. While private school vouchers will be voted on separately, Senate negotiators agreed last week to offer a bill that allows students in failing schools to transfer to better public schools and receive funds for tutoring or after-school programs.

At the heart of the constitutional debate over vouchers is a sentence from the First Amendment that reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Shapiro said decades-old interpretations of that are inconsistent with any notion that the state can subsidize parochial schools.

Bolick, on the other hand, insisted that because the money goes not directly to the school but to the parents, they - and not the state - are exercising "a true private choice."

The debaters were supposed to stick to the question of the constitutionality of vouchers but their arguments frequently strayed into the area of policy.

Bolick called the three early experiments with public vouchers - in Milwaukee, Cleveland, and Florida - largely successful because they have inspired some of the state's public schools to make themselves more competitive by taking such steps as hiring tutors or offering Saturday and year-round classes.

But there is little evidence, Shapiro said, that students who have used vouchers have done any better in private schools than they did in public, and he insisted vouchers offer only "the illusion of school reform without the substance of school reform."

(c) Copyright 2001. The Christian Science Monitor