- The Washington Times - Friday, June 28, 2002

The Supreme Court ruled yesterday that the Constitution permits parents to pay parochial-school tuition with government vouchers, effectively legalizing the "school choice" concept.

"Vouchers provide choices to poor families who otherwise had no option," Chief Justice William H. Rehnquist said as he announced the final decision of the court term, a 5-4 ruling that resolved a decade of legal bickering over whether such aid supports religion in a manner prohibited by the First Amendment.

"The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not," said the opening paragraph of the 21-page opinion written by the chief justice, joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Voucher opponents, led by public school officials and teachers unions, called the decision, which approved the Cleveland program, a "wrecking ball" to the separation of church and state, and a threat to public education.

Proponents including President Bush, who backed vouchers in his 2000 presidential campaign said it marked a new day for education, and House Majority Leader Dick Armey, Texas Republican, filed a bill to provide vouchers for up to 8,300 children of low-income families in the District.

"This landmark ruling is a victory for parents and children throughout America," Mr. Bush said. "By upholding the constitutionality of Cleveland's school choice program, the Supreme Court has offered the hope of an excellent education to parents and children throughout our country."

Roberta Kitchen, one of the Cleveland mothers represented in the case by the National Institute for Justice, said school systems no longer can ignore poor children.

"If my children aren't getting the education they need, we have the power to choose something better. We can vote with our feet," Mrs. Kitchen said yesterday.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented, saying the ruling defies legal precedent and poses risks for a nation intent on keeping government out of religion. The ruling permits vouchers to be used at religious schools so long as they also are cashable at secular private schools.

"This simply means that public tax money will be paying for religious instruction," Justice Souter said in summarizing from the bench the stance of the dissenters.

"True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced," said the main dissent, which all four objectors joined. Further dissents were written by Justices Breyer and Stevens.

Cleveland's program an experiment set up six years ago by the Ohio Legislature and copied around the country provides annual vouchers worth $2,250 to almost 4,000 children in failing Cleveland schools.

Virtually all the money is used at 51 participating private schools, 42 of which are religious.

Opponents focus on statistics showing that 96 percent of the children using vouchers attend parochial schools.

Chief Justice Rehnquist blamed the imbalance largely on the closure of two large secular private schools because of the lawsuit itself. He said the constitutionality of a law cannot be decided by annual reports on who uses it.

"Just because vouchers may be legal in some circumstances doesn't make them a good idea," said Bob Chase, president of the National Education Association, who said 26 state legislatures have rejected the concept.

"Today's decision is bad for education and bad for religious freedom," said Steven R. Shapiro, legal director of the American Civil Liberties Union. He pointed out that the Republican-led House of Representatives also failed to pass a voucher bill.

Attorneys for the National Institute for Justice praised the decision as a "day of sunshine" for which they had fought for a decade.

"This was the Super Bowl for school choice, and the kids won," said NIJ Vice President Clint Bolick.

"I hope lawmakers will give parents in other states the same choices that make such a difference for our children," said Christine Suma, an NIJ client in the case.

Joe McTighe, executive director of the Council for American Private Education, said private schools welcome the opportunity to receive vouchers, and "in ruling that they can, the court has advanced the right of low-income parents to choose their children's schools and to provide their children a quality education."

Attorney General John Ashcroft said Ohio's program "crafted a brighter future for the students trapped in the Cleveland school system," where 60 percent of high school students fail to graduate and only 9 percent pass all four sections of the ninth-grade proficiency test.

The decision provides a road map for governments that held off on their voucher programs and is considered supportive of tax-supported voucher programs in Milwaukee and Florida.

Rep. J.C. Watts Jr., Oklahoma Republican and chairman of the House Republican Conference, said the decision will aid congressional efforts to give financial help to families that switch schools.

"The court's decision means opponents of parental choice in education need a new argument. The constitutionality has clearly been validated by the highest court in the land," he said.

The Rev. Barry W. Lynn, leader of Americans United for Separation of Church and State and author of the "wrecking ball" metaphor, called the decision "clearly the worst church-state decision in the past 50 years."

Ralph G. Neas, president of People for the American Way, said the decision will worsen the financial problems of inner-city schools like those the Cleveland families are fleeing.

A number of Jewish groups attacked vouchers, with American Jewish Committee General Counsel Jeffrey Sinensky calling the decision a troubling endorsement of "the direct government subsidy of religious education."

The Anti-Defamation League said the ruling was "a step backwards for religious liberty."

In other cases decided yesterday:

•The court overturned by a 5-4 vote Minnesota regulations, and in effect those used by about 30 states, that restrict what candidates for elected judgeships may say about legal issues during a campaign.

•The justices decided 6-3 that a chain-gang prisoner who was shackled to a "hitching post" for seven hours of punishment and given little water and no bathroom breaks may sue the Alabama prison guards who put him there.

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