Union Tribune

February 21, 2002 

School vouchers before high court


WASHINGTON The Supreme Court yesterday considered
whether Cleveland's school voucher program is unconstitutional
because it is mostly used by students attending religious

Attorneys supporting the program argued that taxpayer-financed vouchers are the only hope for many poor Cleveland families to escape underfunded and troubled public schools.

But opponents of the city's voucher system, noting that most of
the 4,000 students involved attend parochial schools, said it is
no less than a government endorsement of religion, and
therefore unconstitutional.

"It is inevitable that almost all of the students will end up going
to religious schools that provide religious education," attorney
Robert Chanin said.

But attorney David Young, who represents voucher supporters,
countered that the program, which authorizes vouchers of up to
$2,250, is an attempt to "permit low-income, educationally
disadvantaged children who were trapped in a failed system to
exercise choice."

Though most of the schools chosen have been parochial,
students can use vouchers to attend private schools that are not

Several justices, through their questioning, appeared
sympathetic to the voucher program, but it was unclear whether
a majority would declare it constitutional.

The court's answer, expected by summer, could remap the
educational landscape. Numerous states and school districts are
awaiting word from the high court about whether there is a way
to set up a voucher program that does not violate the
constitutional principle of separation of church and state.

Court observers say Justice Sandra Day O'Connor could hold the
fifth and deciding vote in this case, given her position in the
center of the court on church-state issues. She gave little away
yesterday, pressing both sides and expressing some skepticism
about the answers she received.

U.S. Solicitor General Theodore Olson, arguing in favor of the
voucher program, said it offers a "broad range of choices" to

Ohio Assistant Attorney General Judith French, representing
Ohio Schools Superintendent Susan Tave Zelman, urged the
court to take into account that students are allowed to transfer
to "community" schools, which are separately chartered and
organized public schools.

Students also have the option of collecting a stipend of up to
$500, which is applied toward tutoring.

The case came to the high court after a U.S. District court and
federal appeals court in Ohio found the program unconstitutional.

The justices yesterday asked the attorneys about the range of
choices available to students and whether the fact that most of
the students chose religious schools indicated that the state was endorsing religion.

Justice David Souter invoked arguments that the program is
legal because it is "neutral," providing parents with a choice of
whether to use a voucher at a nonreligious or religious school.

"That's a distinction that ought to make a difference in result," he said.

But, he added, with more than 95 percent of students using their vouchers at religious schools, "doesn't that suggest there is something specious about this notion of wide-open choice?"

Justice Antonin Scalia said the "question is whether or not there
is neutrality in this program."

Addressing Chanin, Scalia said religious schools have been the
predominant choice of students with vouchers because "they
happen to be the schools that are up and running."

The voucher amounts nearly cover the cost of church-subsidized education, but do not begin to cover normal tuition at many secular academies.

Secular private schools and suburban public schools are eligible
to participate in the program, and the fact that more have not
done so is no fault of the voucher program itself, French argued
before the court.

Scalia suggested the mix of schools in the program could change
in the future. In Milwaukee, where there is a voucher program,
"more and more nonreligious schools" have been participating,
he said.

Under questioning from several justices, Chanin said he would
consider a program similar to Cleveland's unconstitutional even
if there were many nonreligious schools involved. A program
might be constitutional, he added, if students "could choose
from a huge variety of options, most of which were secular."

Attorney Marvin Frankel, representing opponents of the
program, said poor public-school performance in Ohio results
from "vast regional disparities" in funding among rich and poor
school districts.

But Scalia said the public schools are failing not because of lack
of money, but because they have a "monopoly."

"There are extensive studies that show parochial schools do a
better job," he said.

The Associated Press contributed to this report.