WASHINGTON — The nation's highest court joined the debate on school vouchers, considering Feb. 20 whether the state aid that pays for tuition in religious schools is constitutional.

The discussion during oral arguments at the Supreme Court focused on such issues as the high percentage of Cleveland students who choose religious schools among private school choices and whether parents truly have an array of educational options.

The case centers on a pilot program adopted by the Ohio Legislature to aid mostly low-income children who attend troubled public schools.

Parents who choose to send their children to a private school receive a maximum of $2,250 per student per year. They sign over a check to the school they select.

“It offers true choice to parents,” argued Judith French, chief counsel for Ohio's attorney general.

Cleveland, which has one of the worst-rated public school systems in the country, established the voucher program so that parents could send their children to any of 51 participating schools, all but nine of which are religious and most of which are Catholic.

She asked the justices to overturn the 2000 ruling of the 6th U.S. Circuit Court of Appeals, which said the program was unconstitutional because it advances religion.

Secular private schools and suburban public schools are eligible to participate in the program, but have chosen not to do so, which is not the fault of the program itself, argued French.

Justices considered the percentages of students who have enrolled in the program and chosen religious schools. That number has risen from 96% in 1999 to 99% in the current school year.

Based on some of the comments made by the justices during the 80-minute presentation, Cleveland's voucher program might be considered constitutional as long as parents are offered a wide variety of alternatives for their children beyond just public and religious schools. Alternatives include tutoring programs, magnet schools and community schools, which are public schools separately chartered from the regular school district.

Justice Stephen Breyer imagined the impression of a newcomer to this country viewing the program with “a large amount of money” spent by the government and used by students at parochial schools.

“Wouldn't you say the government endorses a religious education?” he asked.

David Young,, a lawyer for parents and schools who benefit from the program, added to French's arguments, saying that rather than endorsing religion, the government “was trying to resolve a problem of these disadvantaged, low-income children.”

Solicitor General Theodore Olson argued for the Bush administration, which filed a friend-of-the-court brief supporting the voucher program. With his arguments, the debate lasted 80 minutes instead of the usual hour.

Olson urged the court to consider the history and context of the program, which was designed to fix a “manifestly failing system.”

He cited an increase in the number of nonreligious schools participating in Milwaukee's voucher program.

But Justice David Souter pondered the fact that 99% of the students who currently use the vouchers in private schools have opted for religious schools.

“Doesn't that suggest there is perhaps something specious about the notion of wide choice here?” he asked.

The high percentage of religious schools among private school choices is a key to the argument of program opponents.

“It is a mathematical certainty that almost all of the students will end up going to religious schools,” said Robert Chanin, a Washington lawyer who represented the National Education Association before the justices.

More than one justice questioned whether the array of choices beyond private schools should be considered in determining the constitutionality of the voucher program.

O'Connor is Key

Justice Sandra Day O'Connor, who is considered a pivotal vote in the case, asked several questions about all of the options available for Cleveland school parents and suggested that, “if anything,” the program was “skewed against religious schools in terms of public support.”

O'Connor said the numbers may be “skewed” in favor of religion only because voucher opponents are not including all choices in their argument against the program.

“Why should we not look at all of the options open to parents?” she asked, citing community and magnet schools as examples.

But Chanin maintained that the support of religious schools is unconstitutional. “It's a back-door approach to precisely what the Establishment Clause prohibits,” he said.

He said community schools are a “species of public education.”

“The only rational line to draw is between public and private,” he said.

Justice Antonin Scalia also wondered if the look at the religious programs paints an incomplete picture.

“The question is whether or not there is neutrality,” he said, speculating that Chanin may be asking the court to “put on blinders.”

“We are asking you to look at reality,” Chanin responded.

But Justice Anthony Kennedy disagreed: “You're asking us to look at part of reality.”

Scalia wondered how best to evaluate a program in which the percentage of students using state money at religious schools changes annually.

“The only schools that happen to be there are religious schools,” he said. “This doesn't mean the program will always be that way.”

He wondered if Chanin was suggesting that the solution would be to “abolish all religious schools.” Chanin suggested that innovative programs within public schools are a preferable option to providing state money that will be transferred to religious institutions.


The Becket Fund, a religious liberty law firm, noted in its friend-ofthe-court brief that the circuit court's ruling against the voucher program was based on previous Supreme Court decisions that missed a crucial undercurrent of 19th-century public policies.

Rulings in 1948 and 1971 restricting use of government funds for religious schools didn't take into account that the previous century's court decisions on which they were based used the term “nonsectarian” when what they meant was “non-Catholic,” the Becket Fund brief said. Such rulings were intended to suppress “the cultural threat” of Catholic schools, it argued.

The Supreme Court is expected to rule in the case before the end of the term in June.

(From combined wire services)