Vouchers on trail: will the U.S. Supreme Court's decision in Zelman end the voucher debate?

Education Next, Summer, 2002 by Joseph P. Viteritti

LEGAL EXPERTS ARE ALREADY DRAWING ANALOGIES between Zelman v. Simmons-Harris and landmark rulings like Brown v. Board of Education and the seminal First Amendment decisions that have shaped American jurisprudence over the past half century. How the U.S. Supreme Court rules on the constitutionality of Cleveland's school-voucher program will not only define the legal boundary between church and state more clearly; it could also help redefine the meaning of public education and expand the range of opportunities available to poor children.

Enacted by the Ohio legislature in 1995, the Cleveland Scholarship and Tutoring Program allows 4,000 low-income children to attend private religious and secular schools with up to $2,250 in public support. Participating schools must cap their tuition at $2,500 a year; the state pays up to 90 percent of whatever the school charges, depending on family income. Following a high-profile legal battle, the program was upheld by the Ohio Supreme Court in 1999, prompting opponents to take their case into federal court. On the day before school was to open that year, federal district court judge Solomon Oliver struck down the program, ruling that the use of tax dollars to pay for children to attend religious schools offends the First Amendment's Establishment Clause. Judge Oliver halted the acceptance of new students to the program while the case was being appealed. Soon thereafter, a sharply divided (5-4) U.S. Supreme Court took an unusual move to vacate Judge Oliver's injunction and allow the program to continue una ltered while the case is in litigation.

In December 2000, the U.S. Court of Appeals for the 6th Circuit affirmed Judge Oliver's ruling by a 2-1 vote. The appeals court relied heavily on legal precedents set down by the Supreme Court in 1973 in Committee for Public Education v. Nyquist. At issue in Nyquist was a New York State program that gave low-income parents a partial tuition reimbursement for private-school tuition. The Nyquist Court found that the tuition-grant program had the "impermissible effect of advancing religion." It concluded that direct or indirect aid to sectarian schools is essentially a government-subsidized incentive to practice religion.

The thinking in Nyquist was remarkable on several counts. Inherent in the incentive concept is the assumption that parochial schools are so superior to public schools that the opportunity to attend the former is irresistible, even to those parents who do not want their children educated in a religious environment. Reasonable people can conclude that the lure of a safe and sound education is an argument for choice rather than against it. Preoccupied with the religious character of parochial schools, the majority also presumed that the court is capable of looking into the minds of legislators to determine their motivations. Using effect to derive intent, the court concluded that incidental aid to religious institutions in the form of tuition relief to parents is tantamount to a purposeful government act to promote religion.

There were specific facts pertinent to the Zelman case that the appellate panel deemed relevant to the incentive argument. Challengers pointed out that most of the schools involved in the voucher program (46 of 56, accounting for 96 percent of the students) were religious, leaving few secular options available for participating families. The appeals court accepted this argument even though the Supreme Court had acknowledged similar circumstances in 1983 (Mueller v. Allen) when it upheld a Minnesota program that gave a tax deduction to parents for tuition and other education expenses. While recognizing that most of the deductions were used for parochial school tuition, the Mueller Court found that because parents could deduct expenses for public, private, or religious schools, the deduction was neutral toward religion.

In Zelman, the Ohio attorney general further pointed out that schools participating in the Cleveland voucher program represent only a small portion of the range of choices available outside the regular public schools. In 1999 Cleveland had 23 magnet schools with 13,000 students in attendance and eight charter schools with 1,600 students in attendance, compared with the 3,800 in the voucher program. The two-person majority refused to accept the range-of-choice argument, however, because the magnet and the charter programs were not enacted under the auspices of the voucher law that was being reviewed. Legally speaking, these other choices did not exist. Under the rules of evidence defined by these judges, the same court that could peek into the minds of legislators to determine intent could not recognize hard evidence crucial to determining whether dissatisfied parents at regular public schools had choices beyond religious schools.

Both sides introduced evidence concerning the amount of the voucher. The state of Ohio, in an effort to rebut the incentive argument, explained that the amount ($2,250 maximum) was small in comparison with the per-pupil spending in regular public ($7,746), magnet ($7,746), and charter schools ($4,518). Looking at things strictly from a resource perspective, parents had a disincentive to send their children to schools participating in the voucher program. Opponents argued that since parochial schools were the only nonpublic schools with tuition rates low enough to be covered by the voucher, the program was indeed an incentive to attend these schools. To the extent that the latter argument has merit, the remedy seems obvious: amend the voucher law to make the amount higher, let's say equal to the per capita amount spent in regular public schools. This would have to be done by the Ohio legislature.