Court to consider school voucher case

The Cleveland voucher case offers fertile territory for debate by both camps. Under the voucher plan, low-income students receive up to $2,250 in government money to apply toward tuition at one of 56 preapproved private schools. All but 10 of the schools are run by religious organizations. In the 1999-2000 school year, 3,800 students received vouchers, and 96 percent of them attended religious schools.

Opponents of the plan sued in federal court, claiming the voucher program violates the separation of church and state by using government money to support private religious schools that engage in religious instruction.

Voucher supporters say it is entirely up to the parents and students to decide whether to use the vouchers to attend a private religious school or a private secular school. The government plays no role in the decision, they say, so the aid cannot be attributed to the government.

A federal appeals court in Cincinnati disagreed with this view. In a 2-to-1 ruling, the appeals court struck down the voucher program because the court found it offered parents no real choice between religious and secular schools. "There is no neutral aid when that aid principally flows to religious institutions; nor is there truly 'private choice' when the available choices resulting from the program design are predominantly religious," the court said in a December 2000 decision.

The Supreme Court agreed to hear the case last fall. Although the justices have never directly addressed vouchers, their positions in similar school-aid cases suggest to some analysts that the court may divide 4-4, with Justice Sandra Day O'Connor in position to decide the case.

While it is unclear how she might rule, Justice O'Connor has offered hints in the past. The key, she says, is whether a voucher plan represents a "true private-choice program" capable of separating the government from any endorsement of a religious message or activity.

"When government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, no reasonable observer is likely to draw from the facts an inference that the state itself is endorsing a religious practice or belief," she wrote two years ago in a school-aid decision. "Endorsement of the religious message is reasonably attributed to the individuals who select the path of the aid."

Thus, it appears the key question will be whether O'Connor sees the Cleveland voucher plan as involving "true private choice," or as a mere sham enabling government aid to reach religious groups via parents who have no real say in how the vouchers are spent.

Clint Bolick, of the Institute for Justice, a public-policy litigation group in Washington, maintains that the program empowers parents to make real choices to improve the quality of their children's education. "As a result of this program, for the first time the parents are not inconsequential with respect to the education of their children," Mr. Bolick writes in his brief to the court supporting vouchers.

Voucher opponents disagree. "The Ohio voucher program is so heavily skewed towards religion as to make it inevitable that, no matter what 'private choice' individual voucher program parents make, a significant portion of the aid expended under the program as a whole will end up flowing to religious education," writes lawyer Robert Chanin in his brief to the court.

A decision in the case is expected by the end of June.

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