- The Washington Times - Tuesday, July 2, 2002

A bravura performance of Handel's "Messiah" is in order for the United States Supreme Court's tuition school voucher decision (at least outside the jurisdiction of the chronically zany U.S. 9th Circuit Court of Appeals , author of the Pledge of Allegiance caper in Newdow vs. U.S. Congress (June 26, 2002)).
The high court, by a narrow 5-to-4 majority in Zelman vs. Simmons-Harris (June 27, 2002), denied that a Cleveland City School District program that subsidized parental choice among various student educational options sinned against the First Amendment prohibition of "laws respecting an establishment of religion." The options included partial tuition vouchers redeemable at both secular and sectarian private schools and tutorial assistance grants for public school students. To the extent parental choice pivoted on monetary incentives, the Cleveland program tilted toward public education.
What astonishes is not the celebration of parental options and educational diversity in Zelman, but that four Justices dissented.
Parents enjoy a constitutional right to educate their children in public schools or in private institutions, whether sectarian or secular.
Writing for a unanimous court, including haloed icons Oliver Wendell Holmes and Louis D. Brandies, in Pierce vs. Society of Sisters (1926), Justice James McReynolds explained: "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only."
The government, however, is not saddled with a corollary constitutional obligation to subsidize private schooling. Indeed, generally speaking, the Constitution leaves the government discretion whether to subsidize constitutionally protected private choices. For example, the constitutional right to an abortion excludes any right to insist that the government pay.
But government encouragement of individuals to exercise constitutional rights by partial or complete funding should not be suspect if both religious or ideological neutrality are heeded. And on that score, Cleveland's private tuition voucher and public school tutor plan was irreproachable.
Appalling public education failure propelled Cleveland's school district into experimentation and subsidized parental choice. In 1996, an Ohio state auditor delivered a harrowing report card. The district had failed to meet any of 18 standards for minimal acceptable performance. Only 10 percent of ninth-graders could had mastered basic skills. More than two-thirds of high school students never graduated, including 25 percent of the senior class.
And graduates displayed achievement levels markedly inferior to their counterparts outside Cleveland.
To rescue Cleveland's children from calamity, an Ohio State Pilot Project Scholarship Program was embraced. Partial tuition vouchers are provided to needy parents choosing child enrollments in either private secular or sectarian schools or in a public school in a participating adjacent school district. Families with incomes below 200 percent of poverty are eligible for vouchers covering 90 percent of tuition with a ceiling of $2,250 and a copayment cap of $250. The corresponding figures for other families are 75 percent of tuition, an $1,875 ceiling, and no copayment lid. On the other hand, public school students from low-income families are eligible for tutorial assistance of 90 percent of cost with a $360 maximum. All other public school children receive 75 percent of the ceiling. To complement its Pilot Scholarship Program, Ohio also subsidizes 23 magnet schools in Cleveland and 10 community or "charter" schools.
Ohio safeguarded against religious hijackings of its educational uplift and diversity program into subsidizing schools akin to Middle East or South Asian madrassas notorious for intolerance and ugly bigotries. Thus, eligible private schools are prohibited from discriminating on the basis of race, religion, or ethnic background. Neither may they "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." In other words, Mullah Omar and his fanatical equivalents shouting the superiority of a particular religious creed are verboten.
Writing for the majority in Zelman, Chief Justice William Rehnquist emphasized that Cleveland's voucher scheme created no monetary incentive for an exodus of public school students to private sectarian institutions.
Public school students pay, in contrast to their private school counterparts, pay no tuition. They are eligible for tutorial subsides.
Private school parents typically pay real estate taxes to subsidize public education with no commensurate credit for reducing public school expenses.
In sum, Ohio was financially neutral if not marginally hostile to parents choosing private sectarian schooling as opposed to secular alternatives.
Thus, the chief justice concluded, neither Ohio nor the Cleveland school district were "establishing" or "advancing" religion as conceived by the First Amendment.
The challenged voucher program, moreover, was no sham for government underwriting of a cathedral, mosque, synagogue or temple. In the 1999-2000 term, 46 sectarian schools and 10 secular private schools attracting 3,700 scholarship students participated. The previous term, 1,400 public school tutorial grants were awarded, and that number was expected to double the following school year. Although 96 percent of the private student scholars choose sectarian schools in 1999-2000, no evidence undermined free and unwarped parental choice as the explanation.
In dissent, Justice Stephen Breyer fretted over Zelman as seeding new editions of the sanguinary religious wars of the Old World. Do you think that is what Zelman portends?

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