Voucher debate tied to balance
By Frank J. Murray
The Washington Times
February 21, 2002
Yesterday's long-awaited Supreme Court debate on the constitutionality of school vouchers hinged on whether children who abandon public schools for tax-supported " community schools " balance the choice of others for parochial schools.
While shouting supporters of both sides swarmed the sidewalks - including four busloads of parents from Cleveland - voucher critics argued that using taxes to pay tuition at religious schools is doomed if that program is judged separately from Ohio's version of " charter schools. "
" Wait just a minute. How is it we can't look at all these schools? " Justice Sandra Day O'Connor demanded of American Federation of Teachers General Counsel Robert H. Chanin, who led the attack on vouchers with a vigor rarely seen in the high court.
School-choice backers were exuberant over favorable reception by five and perhaps six justices, by the count of Jay Sekulow of the American Center for Law & Justice, who said it was " very clear " the justices do not believe vouchers violate the First Amendment ban on establishing religion.
" Our opponents have seen a strong support for their position in every court we've been in. So far we've won in all of them, " Mr. Chanin responded, rejecting Mr. Sekulow's courthouse-steps prediction of 6-3 victory but apparently forgetting defeats in Ohio Supreme Court and Florida and Wisconsin hearings.
" The groups assembled here are out to protect their stranglehold monopoly on inner-city public schools, " said Clint Bolick, vice president of the Institute for Justice, which represents parents of children in the voucher program. " I make no nose counts but I left the courtroom with a smile on my face. "
U.S. Solicitor General Theodore B. Olson and Assistant Ohio Attorney General Judith L. French divided the argument time for vouchers along with Columbus attorney David J. Young, representing schools in the plan.
Mr. Young told justices the program does not endorse religion but " was allowing children trapped in a failing system to exercise choice. " Mr. Olson said the history of Ohio's failing schools justifies the voucher program despite questions about religion and " could not have been more compelling and more focused on the needs of children. "
He picked up on Justice O'Connor's point and said the court must consider the full range of choices, arguing that the U.S. 6th Circuit Court of Appeals erred on that issue in ruling for teachers' unions opposing vouchers.
" We dispute that a massive amount goes to religious schools, " Mrs. French said, insisting parents make all the choices. " There is nothing about that benefit that represents any sort of favoritism to religion. "
She said religious schools can't discriminate " even in favor of members of their own faith. "
" What difference does that make? " demanded Justice David H. Souter, who raised the most pointed questions against vouchers. " If they are proselytizing, why wouldn't they want anyone who comes along? "
Justice Antonin Scalia dismissed Mr. Chanin's focus on the fact that 99.4 percent of parents who get vouchers for up to $2, 250 a year spend them at 51 private schools, of which 42 have religious affiliations. " [Parochial schools] happen to be the schools that are currently up and running, " he said.
Parents of 4, 456 of the city's 57, 000 public school students choose the parochial school option and vouchers-backer Kenneth Starr said those making noise outside the court were good examples. " Ask those parents. They're trying to save their children. Is that too much to ask? " Mr. Starr said.
Students who choose " community schools " get $4, 500, twice the voucher amount. Since that money is a direct credit to the school, critics omit those students when they calculate voucher percentages at secular schools.
Yesterday, Mr. Chanin insisted the court should omit them as well.
Justice O'Connor, whose vote could swing the issue either way, seemed to support voucher arguments and pointed out that two large secular private schools in Cleveland converted to " community schools " so they would get larger tuition grants, leaving parochial schools the only outlet for vouchers.
" If anything, it's skewed against religious schools, " Justice O'Connor said, chiding Mr. Chanin for unwillingness to view magnet schools and community schools among the range of options. " It's a back-door approach to exactly what the Establishment Clause prohibits, " replied Mr. Chanin, who was twice cautioned not to interrupt justices.
Chief Justice William H. Rehnquist abruptly cut in half the 20-minute allotment to American Federation of Teachers attorney Marvin E. Frankel after Mr. Frankel raised issues the chief justice said were beyond the high court's examination.