Supreme Court Agrees to Look at Vouchers
From The New York Times
By LINDA GREENHOUSE
WASHINGTON, Sept. 25 — A
long- awaited test of the boundary
between church and state reached the
Supreme Court today when the justices
announced that they would rule on the constitutionality of a publicly financed
Ohio program that helps thousands of parents in Cleveland pay their
children's tuition at religious schools.
The federal appeals court in Cincinnati ruled late last year that Ohio's Pilot
Project Scholarship Program "clearly has the impermis sible effect of
promoting sectarian schools" and was therefore unconstitutional. The Bush
administration is supporting Ohio's appeal of that ruling on the ground that
any aid to religion is only indirect "as a result of the independent and private
choice of parents," as Solicitor General Theodore B. Olson told the Supreme
Court in a brief filed in late June.
The program provides vouchers of up to $2,250 toward tuition at schools
that choose to participate. Currently, 4,266 children use the vouchers to
attend 56 private schools, with 96 percent of the children enrolled in religious
schools. Some 60 percent of the families are at or below the poverty line.
The vouchers can theoretically also be used for tuition at suburban public
schools near Cleveland, but no public schools are participating.
The Supreme Court's new term does not begin formally until Monday, the
traditional first Monday in October. But following their practice of the last
several years, the justices made an early announcement of cases for addition
to the new term's docket from among the hundreds that accumulated over
the summer recess. The court granted seven new cases today in addition to
the Cleveland case, Zelman v. Simmons-Harris, No. 00-1751. All will be
argued in January or February for decision by early summer.
The Cleveland case could well be the most closely watched case of the
2001-2 term. The battle lines over the voucher issue have been clearly
drawn for years, and advocates on both sides have long expected the
Cleveland program, which began in the 1996 school year, to provide the
ultimate Supreme Court test. The basic question is whether there is any
constitutional difference between direct public financing of religious
education, which the court's precedents forbid, and making public money
available to be used at the discretion of parents.
The court's current stance toward this "school choice" model is ambiguous,
and the justices are likely to be closely divided.
Although there are only a handful of tuition voucher programs in operation
around the country, a decision to uphold the Ohio program would have an
immediate national impact by removing the constitutional doubt that has kept
the concept from spreading. In addition, anything the Supreme Court says
about the boundary between church and state could affect the outlook for
the Bush administration's religion-based initiative.
In June 2000, the court voted 6 to 3 to uphold a federal program under
which all elementary and secondary schools in the country, including religious
schools, can receive loans of computers and other equipment. That case,
Mitchell v. Helms, is likely now to be parsed with great care as advocates
shape their arguments to persuade the justices at the center of the court.
The principal opinion, written by Justice Clarence Thomas and joined by
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony
M. Kennedy, offered a broad endorsement of participation by religious
schools in programs of government aid and suggested that hurdles that
excluded religious schools from generally available programs were "born of
bigotry." There is little doubt that these four justices would vote to uphold the
Cleveland program.
The focus is likely to be on Justice Sandra Day O'Connor, who concurred in
a separate much narrower opinion, and on Justice Stephen G. Breyer, who
joined her. This opinion took a more cautious approach, warning against
public subsidies that, unlike the equipment loans at issue in the case, "reach
the coffers of religious schools." On the other hand, Justice O'Connor also
suggested that the flow of aid to religious schools was not a constitutional
problem if it was "wholly dependent on the student's private decision."
These are some of the other cases on which the court acted today:
Death Penalty
The court kept alive a constitutional challenge to the execution of mentally
retarded people, dismissing a North Carolina case that had become moot
and at the same time accepting a new case from Virginia.
Two months ago, North Carolina became the 18th of the 38 states with
death penalties to bar it for retarded people. The new law, which the
legislature made retroactive, rendered moot a case the court had accepted
for argument in the new term, brought on behalf of a retarded man, Ernest P.
McCarver.
As a substitute for that case, McCarver v. North Carolina, No. 00- 8727,
the court accepted a case brought on behalf of Daryl R. Atkins, a retarded
man on Virginia's death row.
Mr. Atkins, whose I.Q. was tested before trial at 59, was convicted in 1996
of killing a truck driver in a carjacking and robbery. Like the McCarver
case, Atkins v. Virginia, No. 00-8452, challenges the execution of retarded
people as a violation of the Eighth Amendment's ban on cruel and unusual
punishment.
Public Housing
Accepting a government appeal, the court agreed to decide whether public
housing tenants may be evicted if, without their knowledge, a family member
or guest commits a criminal drug offense.
In a series of laws and amendments between 1988 and 1996, Congress
provided for eviction if any member of a tenant's household, or a guest,
engaged in "any drug-related criminal activity" either "on or off" the project's
premises. Four elderly public housing residents in Oakland, Calif., facing
eviction for the behavior of their children, grandchildren or, in one case, a
live-in caretaker, sued on various grounds.
They won a ruling from Federal District Court in San Francisco that the
eviction law, properly interpreted, did not apply to offenses committed
outside the apartment without the tenant's knowledge. The United States
Court of Appeals for the Ninth Circuit, also in San Francisco, upheld the
ruling.
In its appeal of United States Department of Housing and Urban
Development v. Rucker, No. 00-1770, the government is arguing that the
ruling "essentially neutralizes" a law aimed at "ridding public housing of the
scourge" of drugs.
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