Analysis from Council for American Private Education (CAPE)

HIGH COURT HEARS VOUCHER CASE

(February 20, 2002) The United States Supreme Court today heard oral arguments in a case that will determine whether government-funded vouchers for tuition at religious schools are constitutional. The consequences of the case for school choice, education reform, and church-state jurisprudence could be enormous.

At issue before the high court was a program enacted in 1995 by the Ohio legislature that offers vouchers of up to $2,250 to elementary school children who live in Cleveland. The vouchers can be used to attend private schools within the city or public schools in participating districts adjacent to the city. So far, no public school district has agreed to take part in the program, and the overwhelming majority of voucher recipients attend religious schools.

Chief Justice William H. Rehnquist and at least three associate justices (Anthony M. Kennedy, Sandra Day O'Connor, and Antonin Scalia) seemed to signal support for the program's constitutionality during today's often lively hearing. A fifth likely supporter, Justice Clarence Thomas, though not showing his hand today, has a solid history of siding with the majority in cases that have upheld aid to children in religious schools.

Ohio's Assistant Attorney General Judith L. French commenced the oral arguments with the assertion that the Cleveland program satisfies two pivotal tests established by the high court. It distributes aid neutrally to parents, and those parents exercise true private choice when selecting schools for their children. French went on to argue that any funds that go to religious schools do so only because of the free intervention of parents.

Representing a coalition of school choice opponents, Robert H. Chanin argued that the Cleveland program is so skewed toward religious schools that the private choices of parents are essentially meaningless gestures. Within such an arrangement, said Chanin, the aid that flows to religious institutions is properly attributable to the state, in violation of the Establishment Clause of the First Amendment.

His argument, however, did not appear to persuade a majority of the justices. Countering Chanin's claim that the only practical choice voucher parents in Cleveland have is religious schools, Justice O'Connor noted the full framework of educational options available to parents, including charter schools, magnet schools, private schools, and regular public schools. And Justice Scalia suggested that basing the constitutionality of a voucher program on the proportion of religious schools available at any given time was entirely untenable. He asked rhetorically if the court would be required to monitor the ratio from year to year.

In one of the more feisty exchanges of the hearing, Scalia, in response to Chanin's claim that more money was needed to fix Cleveland's public schools, said it was not a matter of money but a matter of monopoly.

U.S. Solicitor General Theodore B. Olson, in what appeared to be a direct appeal to Justice O'Connor (widely considered a swing vote in this case), argued that a "reasonable observer" of the Cleveland program would not conclude that it involved government support of religion. Olson seemed to be drawing from O'Connor's opinion in Mitchell v. Helms, in which she wrote, "[W]hen government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, no reasonable observer is likely to draw from the facts…an inference that the state itself is endorsing a religious practice or belief."

Following today's hearing, Clint Bolick, vice president for the Washington, D.C.-based Institute for Justice, said he was "cautiously optimistic that the court will lift the constitutional cloud from this vital education reform."

A decision in the case is expected early summer.

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The Council for American Private Education (CAPE) is a coalition of national organizations and state affiliates serving private elementary and secondary schools. CAPE is dedicated to fostering communication and cooperation within the private school community and with the public sector to improve the quality of education for all of the nation's children.

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The Center for Education Reform is a national, independent, non-profit advocacy organization providing support and guidance to individuals, community and civic groups, policymakers and others who are working to bring fundamental reforms to their schools.  

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