O'CONNOR CONSIDERED KEY TO CONTENTIOUS ISSUE
WASHINGTON - After years of avoiding the issue, the Supreme Court yesterday heard arguments on the constitutionality of taxpayer-financed school vouchers, one of the most controversial experiments in education.

The justices now begin several months of debating the issue in private, and their final positions could differ from what they appeared to be at the court's hearing yesterday on a six-year-old program in Cleveland, where more than 90 percent of the students who get vouchers use them to pay tuition at parochial schools.

It was evident that the court was deeply divided on the constitutional question, as it usually is in major cases that require it to draw lines between government and religion. Signaling the importance of the issue raised in three separate appeals, the justices heard arguments from five lawyers and spent nearly an extra half-hour on the dispute. One pattern in the questioning hinted that the court could be tipping, at least at this stage, in favor of vouchers. Justice Sandra Day O'Connor, often a tie-breaker in close cases, suggested repeatedly that the Cleveland program turns on parents' private choices of where to spend voucher money, distinguishing the program from a direct government subsidy of religiously affiliated schools.

One of the main questions in the dispute, and a prominent one at the hearing, is whether parental choice acts as a circuit breaker between government and parochial schools, with money flowing to the schools only because parents choose them. The court has said in the past that such a circuit breaker can save the constitutionality of public aid that winds up at religious schools, because it makes the aid neutral toward religion.

O'Connor made it clear that she was focusing on whether the choices open to parents in Cleveland were, in fact, wide enough to give them a genuine option other than parochial schools. Opponents of the program insist that the program is skewed to send children to those schools.

"If we look at what the parents' choices are, if we look at the whole program, then it is not 96 percent of the students being sent to those schools," O'Connor told Robert H. Chanin, general counsel of the National Education Association, representing some of the parents and groups challenging vouchers.

"How is it," she asked, "that we look only at the voucher program" and not at other choices that Cleveland offers parents, including the right to send their children to charter schools, public schools run independently of the local school district. While about 4,000 students now go to parochial schools with voucher aid, about 2,500 go to publicly financed charter schools, a figure that tends to dilute the concentration in religious schools.

Chanin said that the court in the past has said that a challenged program should be examined on its own terms in determining whether it is constitutional.

"I am not sure that's proper," O'Connor retorted.

Chanin grew progressively more critical of the voucher program, ultimately saying that "vouchers are a lousy option."

The role of the charter schools in giving parents an added choice had not been a prominent issue in the Cleveland dispute before the Supreme Court hearing. A federal appeals court that struck down the voucher program in late 2000 did so mainly because of the high percentage of students using vouchers at parochial schools. It pointedly refused to consider charter schools as an alternative, saying that was an entirely different program.

O'Connor chastised the appeals court yesterday for not taking into account the charter school option. Solicitor General Theodore B. Olson, supporting the Cleveland voucher program, told O'Connor that the lower court had made "a legal error."

If, in preparing to decide the case, the Supreme Court decides that the role of the charter schools is critical, it could choose to send the case back to the appeals court.

The hearing included comments strongly supportive of the voucher program from Justice Antonin Scalia, and favorable remarks from Chief Justice William H. Rehnquist and Anthony M. Kennedy. Justice Clarence Thomas, who has sided with those three in past church-state decisions, said nothing during the hearing.

Kennedy, echoing O'Connor's comments, said the court would want to look at all options open to parents. He accused Chanin of asking the justices "to put on blinders and not look at all the choices."

Scalia praised the quality of education provided at parochial schools and said that among other reasons parents were choosing those schools in Cleveland is that "they happened to be the schools that were up and running" when the program began in 1995. He, too, seized on the charter schools' existence as another choice for parents.

Among the other members of the court, Justices Stephen G. Breyer and David H. Souter sounded critical of the voucher program. Both spoke of the "massive amounts" of public money going to parochial education, and Breyer said he was concerned about the appearance of government endorsement of religion.

David J. Young, a Columbus, Ohio, lawyer representing voucher supporters, replied that "not a dollar flows to a religious school but for the independent, private choice of a parent."

Souter said "the bottom line" was that 96 percent of the students are using vouchers at parochial schools. He suggested there was "something specious about the notion that it's a matter of wide-open choice."

Justices Ruth Bader Ginsburg and John Paul Stevens also reacted negatively to the program. Ginsburg suggested that the charter schools were not truly an option "because they are too new, too few, and untested."

Four years ago, the court declined to consider an appeal of a similar voucher program in Milwaukee.