5-4 RULING FINDS CLEVELAND CHOICE PROGRAM DOES NOT PROMOTE RELIGION
In a historic decision Thursday, the U.S. Supreme Court gave the green light to public payment for students to attend religious schools - and potentially for expansion of government support of other types of faith-based programs.

On a 5-4 vote, the court held that the 6-year-old school voucher program in Cleveland, where more than 4,000 students used vouchers worth $2,250 to attend private schools this past year, did not violate the constitutional standard against government support of religion.

"We believe the program challenged here is a program of true private choice," Chief Justice William Rehnquist wrote in the court's main opinion.

For Milwaukee, the decision is almost certain to add stability to the nation's oldest and largest school voucher program. More than 10,000 Milwaukee children from low-income homes attended private schools using vouchers this year. The program has been subject to frequent efforts in the state Legislature to reduce its funding, and a lingering legal cloud had hung over it as long as the Supreme Court had not ruled on the subject.

While there was no mistaking the green-light signal given by the narrow but firm court majority, it is uncertain how much new traffic will start moving on the faith-based avenue opened by the court - and the driving won't be easy.

Proposals involving school vouchers or tax credits, as well as any other expansions of government funding of faith-based programs, are certain to face strong opposition in Congress or in most state legislatures. Both supporters and critics of such proposals agreed Thursday that their fights were far from over.

"I don't see a great deal of increase in this right now around the country," said Emily Van Dunk, a researcher for the Public Policy Forum in Milwaukee who has studied voucher programs.

She suggested that politics and state finances would be big barriers to proposals for new programs, even with the huge legal victory for voucher advocates.

Even the Milwaukee school choice program may face fresh efforts to trim its funding or to require participating schools to come under increased state regulations, especially if a Democrat wins the governor's race in November.

The debate over whether school choice efforts are effective in improving education will also continue - advocates say the evidence is on their side, critics say it's not.

Beyond the education arena, Thursday's court decision could provide some fresh push for Bush administration proposals to increase the role of faith-based organizations in dealing with a wide range of social issues.

Michael Joyce, former president of the Milwaukee-based Bradley Foundation and now head of an organization favoring such faith-based efforts, said, in the light of the decision, "You could imagine a whole host of social services that could be delivered in a way in which the decision-making rests with the people closest to the receipt of the services."

In the immediate aftermath of the decision, school choice advocates celebrated, both in Milwaukee and nationally, and praised the ruling as a landmark that could rival the 1954 school desegregation decision.

Foes of such plans, such as teachers unions and civil liberties organizations, said they strongly believed that vouchers were the wrong way to go in education reform and the court opinion in no way changed that.

Last day of session

The court waited until the last day of its 2001-'02 session to issue the long-anticipated school choice decision, and the nine justices issued six opinions on the matter, three of them supporting the majority and three of them dissenting.

As had been widely anticipated, the vote of Justice Sandra Day O'Connor proved crucial. Legal observers agreed in advance of the decision that it was relatively easy to predict that the other eight justices would split 4 to 4 - and they did.

In his 21-page opinion, Rehnquist wrote, "The Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district." The Ohio voucher program applies only in Cleveland, just as the Wisconsin program applies only in Milwaukee.

The justices in the majority agreed that two of the main factors that overcame concerns about whether vouchers created unconstitutional support of religious education were that it was parents who made the choice of where their children go to school and there were educational options available to parents that didn't involve religious schools.

Both of those points would apply in Milwaukee, where the number of non-religious choice schools is larger, where there are more than 20 non-religious charter schools, and where programs under state law allow students from the city to attend suburban schools.

O'Connor voted in favor of the voucher program, emphasizing in a separate opinion the range of choices available, in addition to religious schools, for publicly funded education in Cleveland. Because there are also such things as independent non-religious schools and magnet schools separate from the Cleveland public school system, it is a parent's choice from a wide menu that dictates where public money is spent, she said.

In a passionately worded concurring opinion, Justice Clarence Thomas, the only African-American on the court, said voucher programs offer low-income black children a chance to consider school options that people who are better off already have, and he criticized public schools in cities such as Cleveland.

"The failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality and alienation that continues for the remainder of their lives," Thomas wrote. "If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination's effects."

In the main dissenting opinion, Justice David Souter expressed sympathy with the goal of helping children in central cities get better educations.

"If there were an excuse for giving short shrift to the Establishment Clause, it would probably apply here," he wrote. "But there is no excuse." The Establishment Clause of the constitution says that government cannot enact laws that have the purpose or effect of advancing or inhibiting religion.

Souter said he feared that with the arrival of vouchers in religious schools, differences of opinion over religion will lose a sense of privacy and will become more public and immoderate.

In a second dissenting opinion, Justice John Paul Stevens wrote, "Whenever we remove a brick from the wall that was designated to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy."

Justice Stephen Breyer also warned that the decision could lead to more religious conflict in the United States.

History of case

The Supreme Court agreed to consider the challenge to the Cleveland system after refusing for several years to take on the question of the constitutionality of vouchers. In particular, the court in 1998 did not agree to hear an appeal of the Wisconsin Supreme Court decision that opened the way for the Milwaukee school choice program to expand dramatically and to include religious schools

But in the Cleveland case, state and federal courts had issued conflicting rulings on the constitutionality of the program, which basically forced the high court to address the issue.

The idea of school vouchers is often traced back to the 1950s and University of Chicago economics professor Milton Friedman, who proposed that all parents be given vouchers to cover the cost of their child's education and then choose the school they wanted.

But the idea got its most tangible boosts in Wisconsin.

For the 2001-'02 school year, 103 Milwaukee schools enrolled more than 10,700 students taking part in the choice program. About two-thirds of the schools are religious.

Thursday's decision was the second piece of major good news in a week for supporters of Milwaukee's voucher program. Last Friday, state Senate Democrats dropped their efforts to have the payments for each student in the program cut sharply as part of the effort to deal with the state's $1.1 billion budget deficit. Assembly Republicans have strongly backed the program.

Katherine M. Skiba of the Journal Sentinel's Washington bureau contributed to this report.