Just like on Broadway, the U.S. Supreme Court has saved its biggest number for its curtain closer, and it's going to be a song about constitutional law that will be heard loudly in Milwaukee. The court is set to issue a spotlighted and long-awaited decision at 9 a.m. Thursday on whether school voucher programs, particularly programs that include religious schools, are constitutional. Milwaukee has the oldest and largest program in the country.
The decision could have a strong impact not only on the school voucher movement nationwide but in other arenas where the interaction of government and religion present tough constitutional issues, such as President Bush's proposals to allow faith-based organizations to receive government funding for social service work.

The court's decision is expected to send one of three signals:

A green light that it is constitutional to permit parents to enroll children in private schools, including religious schools, and use public money to support their children's education. That would open the way for the voucher fight to be undertaken with greater force in state legislatures across the United States.

A red light that will say using government funds to support children attending religious schools is unconstitutional. That could go so far as to shut down the Milwaukee program, at least as it applies to religious schools.

A yellow light with a more narrowly drawn decision that sets forth rules for how programs could meet the standards of the Constitution, or that sends the case back to lower courts with instructions for further work, or that takes some other route.

"There's no question that it's an important milestone," said Elliot Mincberg, legal director of People for the American Way, a Washington-based group that has led much of the opposition to vouchers.

Howard Fuller, the former Milwaukee school superintendent who is a leader of the school choice movement nationally, said Tuesday: "Either the constitutional cloud that has been over the program nationally will be removed, or not. . . . I would hope that there would be a clean decision."

The court could rule in a way that throws out the Cleveland program but leaves Milwaukee's situation in tact, Fuller said. But that would be likely to open the way to new challenges in Milwaukee, he said.

Mincberg said the fight will go on, whichever side prevails.

"No matter which way it goes, it is by no means the end of the road," he said Tuesday. "The legal and the policy disputes about vouchers will continue." Case history The Supreme Court has declined the chance to consider the voucher issue several times in recent years, particularly in 1998, when it refused to consider a challenge to the Wisconsin Supreme Court decision that allowed the Milwaukee program to expand to include religious schools. Finally, last year, conflicting rulings from state and federal courts about whether a similar program in Cleveland was legal left the court with little choice but to take on the issue. Oral arguments in the case were held in February.

In Cleveland, a 6-year-old voucher program permitted about 4,400 students from low-income families to receive $2,250 a year in public money to support attending 50 private schools this year - with more than 90% of the schools in the program being religious.

But it would be hard for the court to fashion an opinion that wouldn't also have a strong bearing on Milwaukee, where more than 10,000 students from low-income families enrolled in 103 private schools, about two-thirds of them religious. The schools received up to $5,553 for each student.

The impact in Milwaukee could mean almost anything from shutting down the program, at least as it applies to religious schools, to giving the program greater strength both legally and politically.

Milwaukee and Cleveland have the only publicly funded voucher programs in the U.S., except for a tiny program in Florida.

Whichever direction it goes, it is likely the Supreme Court will rule on a 5-4 vote.

Key figures on both sides of the case agree it is easy to predict that four justices will vote in favor of the constitutionality of the Cleveland program. They are Chief Justice William Rehnquist, and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy.

And it is easy to see three voting against it - Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg. Justice Stephen Breyer is also likely to go that way, although he could provide a surprise vote in favor of vouchers.

In this scenario, the decisive vote is expected to come from Justice Sandra Day O'Connor. The court never announces when it will issue a specific decision or tips its hand in advance on what a decision will say.

So the forces on each side of the voucher battle have been tensely awaiting the decision on each of the scheduled mornings in the last few weeks when the court has issued a round of decisions. It hasn't come.

But this time for sure: Rehnquist said Monday, when a round of decisions was issued, that the remaining handful of cases in the 2001-2002 session will be released Thursday. The court traditionally ends its annual cycle at the end of June.