- The Washington Times - Wednesday, September 26, 2001

The Supreme Court agreed yesterday to decide if it is constitutional for governments to issue elementary-level tuition vouchers cashable at parochial, private and public schools alike.
Adding eight cases yesterday for the term that begins Monday, the justices also switched gears on how to resolve the question of executing mentally retarded murderers. The court dismissed a North Carolina case as moot and decided instead to review a Virginia death sentence.
On school vouchers, which President Bush embraced in his campaign and in his administration's brief to the high court, there was emotional reaction from both sides yesterday on hearing that the court would consider the issue.
"In a time marked by unbelievable tragedy, this decision provides a ray of hope to thousands for whom education is their only ticket to a happy and productive life," said Jeanne Allen, president of the Washington-based Center for Education Reform.
"Public schools unify; vouchers divide," said Sandra Feldman, president of the American Federation of Teachers, a union that opposes vouchers on the grounds they are blank checks subsidizing religious education.
The justices agreed to review the decision declaring unconstitutional Cleveland's program of giving scholarships worth $2,250 to 3,761 Ohio pupils enrolled in 56 private schools. More than half of these children's families are below the poverty level.
The 2-1 ruling by a panel of the 6th U.S. Circuit Court of Appeals acknowledged the need to improve failing schools, but said fixing the problem was not the job of the courts.
"We find, however, that even more important is the need to uphold the Constitution of the United States and, in this case, to override the State of Ohio's statutory scheme where it constitutes an impermissible infringement under the Establishment Clause of the First Amendment," the panel said in framing the question to be decided.
Last fall, the high court voted 5-4 to let the program continue while appeals wended through federal courts.
The impact of the Supreme Court's decision will be felt far beyond Ohio.
It will affect recent voucher plans in Wisconsin and Florida, centuries-old programs in Maine and Vermont, and proposed legislation in at least 21 other states, including Maryland.
"We will demonstrate to the court that this program is not about religion, it's about providing educational opportunities to children who desperately need them," said Clint Bolick, vice president of the Institute for Justice, a prime mover on the issue and a lawyer for the Cleveland families.
The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, opposes any public aid to religious schools, which educate 96 percent of the children enrolled in the Cleveland plan.
"It's an unconscionable diversion of tax dollars to private schools. This is not funding for books or computers like the other recent cases. We must draw the line at cash subsidies of schools," Mr. Lynn said.
Steven R. Shapiro, legal director of the American Civil Liberties Union, called vouchers "a thinly veiled attempt to provide public funding to religious schools" because the vast majority of voucher recipients choose religious education.
The president's brother, Florida Gov. Jeb Bush, also supports vouchers and is facing a lawsuit by the Florida Education Association over a state program involving 58 pupils from two failing schools in Pensacola.
Siding with the governor are 300 teachers represented by Frank Shepherd of Miami's Atlantic Center of the Pacific Legal Foundation.
The two death penalty cases focus on whether it is constitutional for states to execute killers who are severely retarded.
Because North Carolina law changes Monday to forbid the execution of those with IQs below 70, the justices yesterday canceled a hearing for Ernest McCarver, convicted of killing a fellow restaurant employee.
The issue will instead be decided on the conviction of Daryl James Atkins, 23, who was sentenced for the 1996 murder of Langley Air Force Base Airman Eric Nesbitt, 21.
Atkins and an accomplice kidnapped Mr. Nesbitt outside a Hampton, Va., convenience store, forced him to withdraw cash from an automated teller machine, then shot him eight times.
Among other cases accepted by the court yesterday for decision by June:
The appeal of Pearlie Rucker, 63, of federal rules requiring expulsion from public housing of entire families if any member violates narcotics laws, at home or away, even if the family is not aware of the crimes.
A 1998 National Labor Relations Board ruling requiring Hoffman Plastic Compound Inc. to rehire and pay $66,951 in back wages to Jose Castro, an illegal alien from Mexico whom the company fired for supporting a union.
The government's refusal to pay disability benefits to people able to return to work within one year.

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