WASHINGTON (BP)–The U.S. Supreme Court has announced it will rule on a program allowing vouchers to be used at religious schools, setting the stage for a controversial decision that could dramatically affect public education.
The high court announced Sept. 25 it would review a lower-court opinion striking down an education-choice program in Cleveland, Ohio. A panel of the U.S. Sixth Circuit Court of Appeals voted 2-1 in December of last year to uphold a federal judge’s opinion that the Cleveland Scholarship and Tutoring Program violates the separation of church and state, because most of the private schools in which vouchers are used are religious ones. The full Sixth Circuit refused in February to reconsider its panel’s opinion but later decided the program may continue while the ruling was appealed to the high court.
The Cleveland program, which was established by the Ohio legislature, permits a low-income family to use a voucher of $2,250 in state funds for tuition costs at the private or public school of their choice. More than 4,000 students use the vouchers in more than 50 private schools, most of them religious ones. No suburban public schools agreed to participate in the program.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, welcomed the justices’ announcement, saying that “every lover of religious freedom should be both pleased and sobered” by the action. He called the court’s review “an opportunity to jettison damaging previous court doctrine and to affirm religious freedom.”
“In this case, the lower courts have ruled that poor parents — in a school district where the public schools have seriously failed to educate –could not get vouchers from the state to educate their children in alternatives to those dismal public schools,” Land said. “In doing so, the chief reason the courts have cited is that the parents decided in most cases to use their vouchers at religiously affiliated schools. This is pure, unadulterated anti-religious bigotry.”
Both proponents and opponents of education vouchers agreed on the significance of the case.
“This is the most important education opportunity case since Brown v. Board of Education,” said Clint Bolick, vice president of the Institute for Justice, a Washington-based organization that has defended the program. Brown v. Board of Education was the high court’s 1954 school desegregation opinion.
Barry Lynn, executive director of Americans United for Separation of Church and State and a foe of school choice, called it “probably the most important church-state case in the last half-century.”
Lynn criticized the Cleveland program for forcing “taxpayers to put money in the collection plate of churches. The justices should uphold church-state separation and slam the door on this reckless scheme.”
The Baptist Joint Committee on Public Affairs reaffirmed its opposition to vouchers in response to the court’s announcement. BJC Executive Director Brent Walker said “it is time for the Supreme Court to declare [vouchers] to be unconstitutional.”
“The First Amendment’s bar against established religion means at least that tax dollars should not be used to finance teaching religion,” Walker said. “That fundamental principle cannot be skirted by passing vouchers through the pockets of parents — especially where over 90 percent of the participating Cleveland students attend religious schools.”
Other opponents of voucher programs include the National Education Association, American Federation of Teachers and the ACLU.
The Black Alliance for Educational Options, which has been conducting a television advertising campaign in support of school choice, called the court’s decision to review the case a “truly historic development.”
“Parental school choice is widespread in America — unless you’re poor,” said BAEO President Kaleen Caire. “[The BAEO] believes all parents should have a wide array of educational options.”
The American Center for Law and Justice was among other voucher supporters that expressed support of the Supreme Court’s action.
Some high court observers believe the justices already have signaled in a variety of actions support for the constitutionality of vouchers. In this same case in 1999, the high court ended an injunction against the Cleveland program by a federal judge. Earlier, the justices declined to review a decision by the Wisconsin Supreme Court upholding a voucher program in Milwaukee that includes religious schools. The high court ruled in a 2000 case from Louisiana that federal aid can be used to purchase instructional equipment at religious schools.
The ERLC’s Land called the case “the golden opportunity to undue” the Lemon test, the high court’s formula in a 1971 opinion that said a law must have a secular purpose, not primarily promote or restrict religion and “not foster an excessive entanglement with religion.”
The Lemon test “says that even if the aid has a purely secular purpose — in this case allowing poor children trapped in a dismal school district to have an alternative educational choice — the aid is unconstitutional if it benefits religion even incidentally and indirectly, in this case increasing enrollment in religious schools by the parents’ choice,” Land said. “It is difficult to overstate what is at stake in this case. If the court fails to undo the Lemon test, it will further perpetuate anti-religious bigotry in the law and will trap hundreds of thousands of poor children in schools where they will be significantly undereducated in the tools necessary to be productive citizens in the 21st century.
“People of faith should begin praying now for the nine justices of the Supreme Court that God will give them wisdom and courage and insight,” Land said.
In the Wisconsin case, the ERLC signed on to a friend-of-the-court brief supporting the Milwaukee project. The brief argued the exclusion of religious schools from a voucher program for only secular private schools would constitute discrimination against religion, while inclusion of religious schools would not violate church-state separation.
The high court’s 2001-02 term will begin in October.