Key win for school vouchers

In a landmark First Amendment decision announced on Thursday, the US Supreme Court upheld a school voucher program in Cleveland, ruling that it did not violate constitutional limits when parents rather than government officials make the decision to spend voucher money at a religious school. The vote was 5 to 4.

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The decision in Zelman v. Simmons-Harris could be a turning point in public education in the US. It will embolden school voucher advocates nationwide, many of whom have been waiting years for a clear signal from the high court on the issue. In addition, it provides critical constitutional support for existing voucher programs in Milwaukee and Florida.

"This is monumental," says Jay Sekulow of the American Center for Law and Justice, a conservative legal advocacy group. "It removes the last significant barrier to US voucher programs." Clint Bolick, a leading voucher advocate, adds: "This was the Super Bowl for school choice and the kids won."

The decision marks a major defeat for voucher opponents, including the nation's teachers' unions, which have argued that spending public dollars in parochial schools will divert much-needed resources from public education. "Because five judges ruled this way does not make it good education policy or good public policy," says Bob Chase, president of the National Education Association.

On a broader level, the decision is evidence of a continuing 20-year shift in the Supreme Court's church-state jurisprudence away from the concept of maintaining a high wall requiring strict separation between government and religion.

Instead, the conservative majority of the court is more fully embracing a constitutional approach that favors neutrality and nondiscrimination over a total hands-off approach in areas where government interacts with religious groups.

"The Ohio program is entirely neutral with respect to religion," Chief Justice William Rehnquist writes for the majority. "It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district." He adds: "It permits such individuals to exercise genuine choice among options, public and private, secular and religious."

In a dissent, Justice David Souter says the decision is a "dramatic departure" from prior church-state precedent. He warns that it will open the door to increased government regulation of religion. "When government aid goes up, so does reliance on it," Mr. Souter says. "The only thing likely to go down is independence."

Proponents of strict separation between church and state warn that government funding of religion may dilute religious freedom in the US through inevitable strings attached to government money. Others say that American taxpayers should never be forced to subsidize someone else's religious practices.

Opponents of this restrictive reading of the Establishment Clause say that American judges rather than being neutral toward religion have adopted a hostile approach toward faith. Many point to the recent decision of a federal appeals court in San Francisco declaring the Pledge of Allegiance unconstitutional because it says the US is "one nation under God."

In addition to lowering the wall separating church and state enough to permit voucher programs, the court's decision jettisons another distinction present in earlier religious cases. The court is not requiring that government voucher money be spent only on nonreligious aspects of a student's education. Instead, the court ruled that the level of parental choice that exists in the Cleveland program is high enough to insulate the government from concerns about violating the constitutional prohibition on government subsidization and endorsement of religion.

The bottom line, according to the court, is that voucher programs represent an endorsement of private religious schools by the parents who choose those schools for their children, rather than an endorsement of religious education by the government. This focus on what the court called "true private choice" is at the center of the tribunal's decision.

Critics says such terms are a smokescreen. "This is the worst church-state case in the last 50 years. It really brings a wrecking ball to the separation of church and state," says the Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State.

The case revolves around a Cleveland voucher program passed by the Ohio legislature in 1995 in response to a chronically failing public education system. It provides for up to $2,250 in education grants to low-income parents who want to send their children to a participating private school. Under the program parents must pay from 10 percent to 25 percent of their child's tuition, with the voucher making up the rest of the cost.

Fifty-six private schools signed up to participate. Most are parochial schools, prompting critics to call the voucher program a façade to funnel government tax revenues into a program supporting religion, in violation of the First Amendment.