- The Washington Times - Thursday, December 14, 2000

All eyes were on the United States Supreme Court Monday, so it is understandable that many missed one of the

most important judicial decisions of the year. By a 2-1 vote, the U.S. 6th Circuit Court of Appeals held that Cleveland's groundbreaking experiment in school choice violated the First Amendment. By failing to exclude religious schools from its voucher program, the court reasoned, the Ohio legislature has "established" religion. This decision is certainly misguided, and will almost as certainly be reversed by the U.S. Supreme Court.

The Ohio choice program gives about 4,000 children in Cleveland's failing public schools the chance to escape by providing their parents the opportunity and the means to select from a menu of schools public and private, religious and secular the one they think will provide the best education for their children. The program has nothing to do with advancing religion, and everything to do with helping kids learn.

In fact, the Supreme Court of Ohio had already ruled, in a careful opinion, that the voucher program did not violate the Constitution's Establishment Clause. So, it came as a surprise to many when, a year ago this month, in an explosion of federal chutzpah, a federal district judge ruled that, by offering low-income children in Cleveland a chance to escape that city's troubled government schools, the State of Ohio was, in effect, bribing kids to submit to government-sponsored religious indoctrination.

What was perhaps most striking about the district court's ruling was that, a month earlier, the U.S. Supreme Court had issued a seemingly unremarkable 10-line order staying the a preliminary injunction of the program. But as the whole world now knows, thanks to the Bush vs. Gore case, that stay order should have sent a strong signal to courts and court-watchers that, when the time comes, the court plans to adhere to its recent rulings that the First Amendment requires neutrality, not hostility, toward religious schools. Indeed, the court sent the same signal last June when it reaffirmed, in Mitchell vs. Helms, that education programs do not violate the Establishment Clause merely because some low-income students enjoy the benefits of those programs while attending religious schools.

Given all this, yesterday's ruling by the 6th Circuit is both surprising and disappointing. Notwithstanding more than 20 years of Supreme Court decisions requiring neutrality, not discrimination, toward religious schools and religious believers, the 6th Circuit ruled over a forceful dissent that the Ohio program "clearly has the impermissible effect of promoting sectarian schools." In the view of the majority, by offering a choice to low-income parents a chance to rescue them from schools that none of us would choose for his or her own child and by refusing to discriminate against those parents who choose religious schools, Ohio somehow is unconstitutionally "advancing" religion.

The decision of the 6th U.S. Circuit majority is remarkable for at least two reasons:

• First, it reduces to nearly nothing the significance of a long and growing line of Supreme Court decisions that teach clearly that equal treatment of religion by government is not a state "establishment" of religion.

• Second, and perhaps more disturbingly, the court seemed to embrace in the dissenting judge's words "the familiar anti-voucher mantra that voucher programs are no more than a scheme to funnel public funds into religious schools." As Justice Thomas highlighted last term in his Mitchell opinion, it has long been a dirty little secret of First Amendment jurisprudence that the court's aid-to-students cases were shaped as much by a pervasive hostility toward Catholic schools as by constitutional history and common sense. Such hostility, Justice Thomas insisted, was "born of bigotry, [and] should be buried now." And indeed, the Supreme Court justices have gone a long way toward purging their First Amendment doctrine of anti-parochial-school bias.

The 6th Circuit, unfortunately, seems not to have appreciated these developments.

Two relatively simple principles guide the Supreme Court's decisions in this area, and will, eventually, lead it to reverse the 6th Circuit, uphold the Cleveland program, and clear the way for much-needed education reform. First, the government must dispense education benefits using criteria that themselves neither prefer nor discriminate against religious institutions and believers. The Cleveland program satisfies this requirement. The 6th Circuit's observation that few public and non-religious schools have elected to participate in the program is irrelevant to the question whether the program prefers religion.

Second,the decision to direct public benefits to religious schools must be made by private individuals, and not by government officials. Here, too, the Cleveland program passes muster. Under the Cleveland program, no government official decides to send a check to a religious school. Instead, the legislature has decided simply to empower parents by funding education, and it is parents, not the state, who decide where that education should take place. Such a decision no more violates the First Amendment than does an undergraduate's decision to apply her federally subsidized student loans toward her tuition at Notre Dame or Brigham Young.

If last year's Mitchell decision is any guide, at least five, and perhaps six, justices agree with these two principles. It seems likely that, in these justices' view, far from violating the First Amendment, school choice in fact holds out the promise of advancing religious freedom by providing low-income parents with choices that so many of us take for granted. The court should, and given the conflict between the 6th Circuit's ruling and the earlier decision of the Ohio Supreme Court I am confident it will grant review, reverse the 6th Circuit, and reaffirm what its own cases so clearly teach: Empowering parents through equal treatment is not an establishment of religion. School choice is not about funding religious schools, or promoting religious "indoctrination." It is about equality, freedom and simple justice.

Richard W. Garnett is an assistant professor at the Notre Dame Law School, Notre Dame, Ind.

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