Cleveland School Vouchers Weighed
by Supreme Court
By LINDA GREENHOUSE
WASHINGTON, Feb. 20 —
Two mutually exclusive
narratives competed for the
Supreme Court's attention today as
advocates and opponents of
Cleveland's tuition voucher
program debated whether the fact
that nearly all the vouchers are used
for tuition at religious schools
makes the program unconstitutional.
In one narrative, the six-year-old program, in which nearly
4,000 of the Cleveland school district's 57,000 elementary-age
school students are enrolled, is a lifeline intended to rescue
poor children who would otherwise be without options in a
district engulfed in "an unprecedented educational crisis," as
Judith L. French, an Ohio assistant attorney general, told the
court.
"It is a limited program targeted to the most needy, the
poorest of the poor, who would not otherwise have a
choice," Ms. French said. The vouchers are worth up to
$2,250 in tuition.
In the other narrative, the program is a charade in which
millions in tax money is funneled in the name of parental
choice into the coffers of religious schools. Parents play little
more than a "ritualistic role in the transmission process"
because religious school tuition is the only use for the
vouchers in the nearly complete absence of private
nonreligious schools, said Robert H. Chanin, a lawyer for the
Cleveland residents who successfully challenged the program
in the lower federal courts.
"Ohio has the right to make an unsound educational judgment,
but not an unconstitutional one," Mr. Chanin said.
The court was engaged and extremely attentive as five
lawyers, three for Ohio and two for the voucher opponents,
made their case in an 80-minute argument, a rare departure
from the court's one-hour standard. The justices' questions
suggested that the outcome would depend on which narrative
they accepted and which of the details therefore became
relevant and constitutionally significant. A sweeping decision
that would settle the future of such programs appeared
unlikely.
All eyes were on Justice Sandra Day O'Connor, who was
seen as holding the deciding vote because of her position in
the center of the court on church-state issues. She gave little
away, pressing both sides and expressing some skepticism
about the answers she received.
She asked Ms. French whether the state's position would
require the Supreme Court to overrule its leading church-state
precedent on tuition assistance, a 1973 decision known as the
Nyquist case. That decision "certainly points the other way,
doesn't it," Justice O'Connor commented.
The Nyquist decision struck down a New York program of
tuition assistance to families with children in private schools,
most of which were religious schools.
The Ohio program meets the objections the court had to the
New York program, Ms. French replied. Rather than being
tailored only to private schools, she said, the Ohio programs
offers Cleveland parents options like remaining in the public
schools and receiving extra money for tutoring or transferring
to other schools within the public system.
Justice David H. Souter said that "what bothers me and
Justice O'Connor" was that despite those differences, the
Ohio program appeared to have the same effect as the New
York program.
"At the end of the day, a massive amount of money went to
the religious schools in Nyquist, and a massive amount of
money goes to the religious schools here," Justice Souter
said, adding, "That's the sticking point."
Ms. French said, "We don't agree," because the money
flowed not as "the result of government action" but because
"that's what the parents have chosen." Ohio's is a "neutral
program that offers a true private choice to parents," she said.
Justice Stephen G. Breyer questioned whether parental choice
in Cleveland was actually so unencumbered. "The irony is that
the better the parochial schools, in a sense the less freedom of
choice there is," he said to David J. Young, a lawyer
representing parents of children in the voucher program.
Justice Breyer said that if he had children in the Cleveland
schools, he would feel obliged to send them to parochial
schools for the sake of educational quality even though he
would not want his children exposed to the school's religious
message.
Someone arriving from another country and encountering the
Cleveland program would assume from the way it worked that
the government was endorsing religion, Justice Breyer said.
Although he was addressing the lawyer, the intended target of
Justice Breyer's remark was almost certainly Justice
O'Connor, for whom the central question in any religious case
has long been whether the government appeared to be
endorsing religion and therefore making those who did not
subscribe to the religious message feel like outsiders.
Justice O'Connor in turn asked Solicitor General Theodore B.
Olson, who was arguing for the Bush administration in favor
of the Cleveland program, whether the program made any
"effort to make sure that the money that ends up in the
parochial schools is not used for religious training."
No, Mr. Olson replied, but that did not mean a "reasonable
observer would believe that the government is putting its
thumb on the scales in favor of religion" because whether to
attend such schools was a "genuinely independent private
choice." He urged the court to bear in mind the "history,
context and purpose" of the program, which he said was not
to elevate religion but to save children from "a manifestly
failing system."
"But," Justice John Paul Stevens said, "you would say the
program was constitutional even in the healthiest school
system in the world."
"Perhaps I would," Mr. Olson conceded.
Mr. Chanin, representing the plaintiffs who had challenged the
program in Federal District Court in Cleveland and in the
United States Court of Appeals for the Sixth Circuit, in
Cincinnati, ran into resistance when he characterized the
program as one that inevitably steered families to parochial
schools.
Justice O'Connor and Justice Anthony M. Kennedy told Mr.
Chanin he was failing to take proper account of another
aspect of the program, publicly financed charter schools to
which parents can transfer their children and that more than
2,000 children now attend. Another 16,000 have transferred to
public magnet schools. These options showed the program's
neutrality, Justice Kennedy said.
The program permits Cleveland children to transfer to
suburban school districts that are willing to accept them, but
no suburban district has agreed to participate.
Mr. Chanin disputed the relevance of the magnet and charter
schools, which do not charge tuition and so should not be
assessed as part of the voucher program, he said. The
relevant point, he said, was that of those children who use
vouchers to attend private schools, 99.4 percent attend
religious schools.
Justice Scalia in turn disputed the relevance of that fact.
"Those are the schools that are up and running," Justice
Scalia said, adding: "How should Ohio get from here to there?
Abolish all the inner city religious schools and start from
scratch?"
Mr. Chanin said the Ohio Supreme Court had found that Ohio
had failed to meet its state constitutional obligation to finance
the Cleveland schools adequately. If Ohio wanted to fix the
Cleveland schools it should refinance them, he said.
"It isn't a money problem, it's a monopoly problem," Justice
Scalia replied, reflecting a frequent argument by voucher
advocates that public schools would benefit from more
competition. To Marvin E. Frankel, who argued on behalf of
a second group of plaintiffs, Justice Scalia said: "Your
assumption is that the problem is a problem of money, but
inner city parochial schools spend much less and do a better
job."
More than any Supreme Court case in years, this case,
Zelman v. Simmons-Harris, No. 00-1751, has been the focus
of a public relations effort by advocates on each side. Rallies,
advertisements, news conferences and press releases that
began months ago and continued into this evening reflected
the perception that while the court's decision may shape the
course of the voucher debate, it is unlikely to be the last
word. If the court upholds the concept, the fight will shift to
state legislatures, where public opinion may determine the
outcome as much as any opinion from the Supreme Court. |
