Cleveland schools case gets sympathetic ear of justices
Washington - Hearing a case that could reshape public education, several Supreme Court justices seemed sympathetic Wednesday to the idea that government can help pay tuition for children at religious schools - as it does in Milwaukee - and stay within constitutional bounds.

The court was wrestling with the constitutionality of a program in Cleveland that helps put nearly 4,500 children in parochial schools with taxpayer dollars. At issue in one of the term's hottest cases is whether that city's school voucher program violates the principle of church-state separation.

After emerging from the 80 minutes of vigorous grilling, the three pro-voucher and two anti-voucher lawyers declined to predict which side would win when the court hands down its decision, which is expected by June.

Several said the long-term impact of their constitutional confrontation might depend more on whether the court issues a sweeping decision or one narrowly tailored to the situation in Cleveland.

Tommy G. Thompson, the health and human services secretary who as Wisconsin governor was a strong supporter of a Milwaukee voucher program, was among spectators to pack the court for oral arguments in the case.

Meantime, two elected officials - Gov. Scott McCallum, a Republican, and Milwaukee Mayor John O. Norquist, a Democrat - sent friend-of-the-court briefs to align themselves in the pro-voucher camp.

The Milwaukee parental choice program drew mention in court, with Justice Antonin Scalia comparing it favorably to Cleveland's program. Milwaukee's program, in its 12th year, has taken in "more and more non-religious schools" as it has grown, he noted.

By contrast, Cleveland has a 6-year-old experiment that sees about 99% of participants in parochial schools, mostly Catholic. Vouchers for parochial schools are capped at $2,250 a year.

Theodore B. Olson, the U.S. solicitor general invited by the Bush administration to defend vouchers, also made the point that more and more choice schools in Milwaukee are non-sectarian. Olson said Milwaukee has 30 non-religious choice schools, up from 7 at the program's inception, and 3,025 students in such schools, up from 337.

When there are alternatives to public education, public schools improve, and when choice programs are allowed to exist free of constitutional objections, they too improve, Olson said.

First Amendment argument

Judith L. French, an Ohio assistant attorney general, also argued in favor of the Cleveland program, telling justices: "It seems that Ohio did it right. It didn't take too much money from public schools and it gave the money to the neediest of the needy."

But Robert H. Chanin, lead counsel for voucher opponents, said that when millions of dollars in public funds leave the state treasury for private, sectarian schools, that violates the so-called establishment clause.

He referred to the First Amendment, which begins, "Congress shall make no law respecting an establishment of religion . . ."

Chanin, general counsel for the Washington-based National Education Association, said Cleveland's program so clearly violates the Constitution that "this isn't even a close-to-the-line case."

The program was devised by Ohio state lawmakers in response to what was regarded as a crisis in Cleveland public schools, plagued by high dropout rates and wide failure to meet state performance standards. Its district has 76,000 students.

As it was drawn up, the program offered options to low-income students: Remain in public schools and get a $500 stipend for tutoring; get a voucher for a private non-religious or religious school; or get a voucher for a public suburban school, although none opened their doors to Cleveland public school students. Later, another choice was added: a voucher for charter schools.

Attorney David J. Young of Columbus, Ohio, another voucher supporter, told justices that the stipends go to parents, who make choices, not to schools. "Not a dollar flows to a religious institution," he said, so the government is not endorsing a religion but rather letting people "trapped in a failing system exercise a choice."

Chanin, though, countered by calling vouchers "a lousy option" and said there is conflicting evidence on whether they are educationally sound. And there's no evidence that competition helps the 96% of students left behind in Cleveland public schools, he said.

O'Connor vote seen as crucial

Some justices seemed sympathetic to the idea that government can help pay tuition for children at religious schools and stay within constitutional bounds. Some of them suggested that a voucher program can pass muster if it gives parents lots of choices - both religious and non-religious.

"Unless there's an endorsement of religion, I don't see why it matters if (government) money goes to a religious school," Scalia said.

Justice Sandra Day O'Connor said the numbers don't look so out of whack when considering that parents have other choices aside from vouchers, including sending their children to charter or magnet schools.

"Why should we not look at all the options open to the parents in having their children educated?" she asked.

O'Connor did much of the questioning Wednesday, and hers is considered a crucial vote in the case. If she concludes that Cleveland's program offers a true, neutral choice both in theory and in practice, hers probably will be the deciding fifth vote to uphold the program, lawyers on both sides agree.

Scalia and Chief Justice William H. Rehnquist seemed to support the voucher plan. Justice Clarence Thomas already is on record as supporting voucher-like programs. Justice Anthony M. Kennedy also is regarded as a potential supporter.

Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens are regarded as skeptical of aid to religious schools, and Stephen G. Breyer is, like O'Connor, a potential swing vote.

President Bush supports vouchers but could not win a national program in Congress last year. He now supports a voucher-like tax credit for private or parochial school tuition.

The Cleveland case reached the Supreme Court after the 6th Circuit U.S. Court of Appeals in 2000 struck down the city's program as unconstitutional. The Ohio Supreme Court, though, has called the program permissible.

The Wisconsin Supreme Court in 1998 let stand the Milwaukee choice program, saying that the private religious school option "merely adds religious schools to a range of pre-existing educational choices available" and noting the program has state funds "follow students to the districts and schools their parents have chosen."

The U.S. Supreme Court later refused to hear an appeal of the Wisconsin ruling.

Cox News Service and The Associated Press contributed to this report.

VOUCHER PROGRAMS

MILWAUKEE

Started: 1990-'91 school year. Students: 10,882 in 2001-'02. Schools: 102 in 2001-'02. Eligibility: Milwaukee children whose family income is less than 175% of the poverty line. Vouchers valid at private schools within the Milwaukee city limits. Voucher amount: $5,553 or the school's operating and debt service costs per student, whichever is less. School cannot charge tuition on top of the voucher.

CLEVELAND Started: 1996-'97 school year. Students: 4,195 in 2001-'02. Schools: 51 in 2001-'02. Eligibility: Children living within Cleveland Municipal School District. Those with family incomes below 200% of the poverty line have priority in getting funds. Vouchers valid at private schools within Cleveland district or public schools in suburban districts, although no public schools are participating. Vouchers also can be used for tutoring. Voucher amount: Up to $2,250. For families with incomes below 200% of poverty level, voucher may not exceed 90% of tuition. For other families, voucher may not exceed 75% of tuition. Families pay the difference between voucher amount and tuition.