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Advocates predict Supreme Court will one day OK school vouchers

Encouraged by court ruling to allow federal funding for religious schools

July 6, 2000
Web posted at: 12:28 p.m. EDT (1628 GMT)

In this story: Shift in court's thinking seen Taxpayers 'subsidize religious indoctrination' Disagreements on Mitchell's meaning The impact of vouchers Mitchell decision details RELATED STORIES, SITES

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- The U.S. Supreme Court's 6-3 decision to allow private schools to use federal funds for nonreligious purposes indicates that the court would find school vouchers constitutional, voucher advocates say.

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Critics say predictions that the Supreme Court, if it takes on the issue, would look favorably upon school vouchers are premature. They say vouchers are unconstitutional because they breach the constitutional wall between church and state.

The high court ruling on June 28 in Mitchell v. Helms involved the federal Education Consolidation and Improvement Act of 1981. That law gives federal funds for "secular, neutral and nonideological" programs that provide computers and other instructional materials to public and private schools, including religious schools.

Some Louisiana parents, upset over religious schools getting taxpayer money, sought to overturn the law, saying it violated the constitutional wall between church and state. They won in the lower federal courts.

The Supreme Court ruled last Wednesday, the last day of the 1999-2000 session, that the law did not run afoul of the establishment clause in the First Amendment, as the plaintiffs charged. That clause forbids Congress from passing any law "respecting an establishment of religion."

Shift in court's thinking seen

Voucher advocates are encouraged that the majority opinion, written by Justice Clarence Thomas, struck down the doctrine that any government aid to private schools is automatically unconstitutional.

They say the shift in the court's thinking means the justices may well rule that vouchers also are OK, as long as the parents of voucher-receiving children, not the government, decide which school the kids will attend.

By giving vouchers to parents, the government removes itself from the picture, negating claims that the state is getting involved in religion, according to advocates and neutral observers like Doug Kmiec, who teaches constitutional law at Pepperdine University.

"School vouchers will become the law of the land soon," Kmiec said. "I am fairly confident that this is the direction we are headed, regardless of the president who is elected and the appointments he makes."

The voucher issue "should be argued and will be argued at a policy level. What's important is that no longer can the opponents of vouchers enlist the help of the court," said Brett Kavanaugh, a Washington lawyer who clerked for Justice Anthony Kennedy. "The voucher debate as a constitutional matter should be over."

Taxpayers 'subsidize religious indoctrination'

In a pro-voucher opinion, Justice Thomas says not providing government aid to private schools would be unconstitutional. Approximately 90 percent of private schools in the U.S. are Catholic

Michael Simpson, assistant general counsel for the National Education Association, a fierce anti-voucher group, said of the Mitchell decision: "The troubling thing is the court has approved a federal system that forces taxpayers to subsidize religious indoctrination."

He said the court has yet to overrule a decision in the early 1970s that ruled vouchers were unconstitutional.

Even if the current Supreme Court OKs vouchers, Simpson said anti-voucher groups can fight at the state court level. In a Florida case the NEA won earlier this year, the judge ruled that vouchers violate the Florida constitution, Simpson said.

A Cleveland voucher case in the 6th U.S. Circuit Court of Appeals could become the first voucher case to reach the Supreme Court, as early as next term, advocates on both sides of the voucher issue say.

Disagreements on Mitchell's meaning

Voucher advocates read the Mitchell ruling to mean that as long as students get the best secular education possible, the court would not have a problem whether a public or a private school is doing the educating.

"I think that's why vouchers will succeed because they achieve the national goal of empowering students and advancing their education," said Colby May, governmental affairs director for the American Center for Law and Justice.

Mary Helms, left, and Jan Mitchell

May's group wrote a friend-of-the-court brief in Mitchell arguing for state aid to private institutions.

"The dollars don't chase the institution, the dollars chase the students. The student is an independent moral actor, if you will," he said. The students "are being empowered by a state program for a secular purpose. They recognize that all they want is an education."

Anti-voucher advocates point to a concurring opinion written by Justice Sandra Day O'Connor and joined by Justice Stephen Breyer.

The opinion does not offer unqualified blessing to state aid for private schools, raising concerns that state monitoring is crucial to ensure that taxpayer dollars are used solely for secular purposes such as reading and writing.

Voucher critics say that means the two justices, who voted with the majority in Mitchell, might not vote likewise if the court were to accept a voucher case.

"It's a little early to assume that the Supreme Court would give blessing to vouchers," said Rob Boston, spokesman for Americans United for Separation of Church and State. "Everybody is trying to make assumptions based on a case that is not a voucher case."

The impact of vouchers

Vouchers could change the landscape of American education if they become widespread.

Under the voucher system, states give vouchers to parents, provide tax credits or pay the private schools directly. Voucher states pay a percentage of the private school cost. Voucher laws are designed to give students from low-income families or those who attend poorly performing public schools the opportunity to study at private institutions.

Last month, the Supreme Court ruled that taxpayer money can be used in private schools to buy computers and other instructional materials

About 90 percent of the private schools in the United States are run by religious groups such as the Roman Catholic Church. About 3 million children across the United States are enrolled in private schools, compared with 53 million in public schools.

Florida, Wisconsin, Ohio, Minnesota and Arizona have voucher laws. Michigan and California will have voucher referendums on the November ballot. Pennsylvania, Texas, Illinois and Indiana have indicated a willingness to pass similar legislation, and vouchers have been discussed in the legislatures of about half the states, Boston said.

Voucher advocates say the public school system is doing a poor job of providing a good education for all students. They say schools in predominantly poor and minority areas tend to under-perform compared with schools in suburban and white areas.

Public school advocates say vouchers would divert tax dollars needed to reform ill-performing schools to subsidize the private education of some students.

"Vouchers do take money from public schools. It forces us to choose between cutting school budgets or raising school taxes," said Becky Fleischauer, a spokeswoman for the National Education Association. "Vouchers don't bring more accountability to education, they bring less."

Mitchell decision details

The Mitchell majority essentially ruled that as long as parents have a say in how state aid is used in private schools, such public-private sharing provisions do not violate the Constitution.

Kmiec said O'Connor was in favor of some sort of monitoring body at the state level to ensure that taxpayer money given to private schools is used for solely secular purposes. He said a number of state laws give governments such supervisory authority.

Kmiec said the Mitchell decision settled a rift over the establishment clause caused by two opposing sets of high court decisions involving state aid to private schools.

In the 1970s, the high court in Meek v. Pittenger and Wolman v. Walter forbade any state aid to private schools, invalidating government programs to give materials like maps and books and provide buses to private institutions. In the 1980s, the high court in a series of decisions took the view that state aid was OK if the parents decided how the aid was to be spent in private schools. In a 1997 case, Agostini v. Felton, the court held that a federally funded program providing "neutral" remedial instruction to disadvantaged children in New York private schools is not unconstitutional.

In Mitchell, Thomas wrote that state aid directly going to schools would not automatically be unconstitutional as the court had ruled in the 1970s. He also rejected the argument that secular materials like textbooks cannot be provided by the state to private schools.

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