As the U.S. Supreme Court yesterday scrutinized the legality of private-school tuition vouchers, Justice Sandra Day O'Connor seized on an argument favorable to voucher supporters.
O'Connor, a crucial swing vote on the divided court, is expected to play a decisive role in determining whether parents can use publicly financed grants to send their children to religious schools. The court's much-anticipated ruling centers on Ohio's 6-year-old "scholarship" program, which offers vouchers of up to $2,250 mainly to low-income parents in Cleveland for use toward tuition at private or religious schools.

During the 80-minute oral arguments before the nine justices, voucher supporters contended that Ohio's law establishes a neutral program that gives parents genuine choices regarding their children's education. Led by Judith French of the Ohio attorney general's office, supporters argued that vouchers are merely one component in an array of parental options that include public schools, tutoring grants and charter schools.

But voucher opponents countered that Ohio's law violates the separation of church and state promised in the Constitution because the choices are so skewed as to create a "mathematical certainty" that nearly all students will attend religious schools. More than 4,000 Cleveland students accept vouchers rather than attend public schools, and 99 percent of those students attend religious schools.

O'Connor quickly launched a line of questioning that seemed auspicious for voucher supporters by asking whether the court could consider charter schools in its decision. Charter schools, known in Ohio as "community schools," are self-governing public schools released from many standard rules and regulations.

Because Ohio provides community schools with $4,518 per child, double the amount for voucher students, several nonreligious private schools dropped out of the voucher program and transformed into community schools.

The 6th U.S. Circuit Court of Appeals, which ruled against Ohio's voucher program, determined that it could not consider community schools because the two programs are separate under state law. The appeals court concluded that the other options besides vouchers were "at best irrelevant."

O'Connor and Justice Ruth Bader Ginsburg asked whether the appeals court erred in excluding community schools.

"This court has taught repeatedly that the history, context and purpose of a case are very important," said U.S. Solicitor General Theodore Olson, arguing in favor of vouchers on the Bush administration's behalf. He said the lower court made a "legal error."

Justice John Paul Stevens said the court was trying to "decide whether those alternatives are constitutionally necessary, or just make your argument stronger."

But several justices seemed skeptical about the strength of the state's argument.

"Isn't it true that 99 percent of children are in religious schools?" Ginsburg asked French.

Justice David Souter said the court should look beyond the program's structure and examine its effect. He cited a 1973 case called Committee for Public Education and Religious Liberty v. Nyquist, in which the Supreme Court overturned a New York law designed to rescue financially troubled religious schools. The New York Legislature enacted three forms of aid, including tuition grants to low-income parents of private-school children.

"At the end of the day, the effect is that massive amounts" of government money flow to religious schools in both cases, Souter said. "In those respects, the two are identical."

Stevens echoed Souter's assessment that Ohio's program is "the same case" as Nyquist, while Justice Stephen Breyer said he was concerned that the "effect" of Ohio's program is an endorsement of religion, regardless of its intent.

Attorney Robert Chanin, the National Education Association's general counsel, who argued against the Ohio program, said it transfers "millions of unrestricted public funds" to "the coffers of private schools." Chanin declared, "This isn't even a close-to-the- line case."

O'Connor quickly redirected Chanin's attention to community schools, asking, "Why should we not look at all of the options open to parents in having their children educated?"

She seemed frustrated that he did not directly address why the court should exclude community schools. He also corrected O'Connor when she described community schools as "basically private schools."

Other justices also seemed unsatisfied with Chanin's answers.

"So far, you're doing a very good job of not answering Justice O'Connor's question," said Justice Anthony M. Kennedy. When Chanin said he was asking justices to look at the reality of the program rather than its intent, Kennedy rejoined, "You are asking us to look at part of the reality."

Justice Antonin Scalia inquired whether Chanin would accept a voucher program with a lower percentage of religious school participation. "Are we supposed to examine this year by year and look at the percentages?" Scalia asked. He asserted that the failure of Cleveland's public schools "isn't a money problem; it's a monopoly problem."

Eight of the nine justices asked questions. The exception was Clarence Thomas, who maintained his customary silence. Chief Justice William Rehnquist left most of the questioning to his colleagues but interjected that when, "parents do the choosing, that makes it ... different."

Arguing clearly and courteously, French received few interruptions from the perpetually brusque justices during her rebuttal. She concluded by focusing on the very issue that O'Connor had raised: the alternative option of community schools, which receive more state money than private and religious schools. "The scholarship [voucher] program is really the poor relative," she said.

The justices are expected to rule on the case, Zelman v. Simmons- Harris, by early summer.