The US Supreme Court yesterday heard spirited arguments for and against an Ohio school voucher programme whose fate could largely determine whether poor parents in some cities get public money to spend on private education.
As demonstrators rallied outside the courtroom, the justices heard from a larger than normal array of lawyers, including Theodore Olson, the solicitor general, who argued in favour of vouchers.

The issue before the court is whether the city of Cleveland's pilot voucher scheme violates the constitutionally mandated separation between church and state, because most of the money ends up going to religious schools (the only ones with tuition low enough to accept vouchers). Justice Sandra Day O'Connor, whose vote is likely to be crucial, repeatedly grilled the main lawyer opposing the voucher scheme, becoming exasperated at times with his answers.

Her questions, and those of several other justices, focused on the question of choice: do parents in the Cleveland programme really have any option but to use the money on religious education? The justices struggled with the question of whether choice was central to the constitutionality of the programme.

Justice O'Connor seemed to think the lower court that ruled the programme unconstitutional erred by failing to consider the full range of options open to Cleveland parents, including so-called charter and magnet schools, which are public but run more independently. The lower court considered only schools accepting vouchers, most of which are religious.

Though it is always difficult to guess the outcome of a case from the questions posed by the justices, it seemed likely yesterday that the Cleveland scheme might avoid rejection by the court.

Several justices clearly struggled with the question of whether the effect of the programme matters more than the intent: if the programme was not intended to subsidise religion, does it matter that, in fact, the vast majority of the money goes into religious schools that openly use it to help finance religion-based instruction?

Justice Stephen Breyer, another justice whose vote is expected to be important, said he worried that, whatever the intent of the programme, it certainly looked like government endorsing religion, which is not permitted under the constitution.

The wisdom of vouchers as public policy was not directly before the court, though Antonin Scalia, one of the court's most conservative members, spoke passionately in their defence.

Proponents of vouchers say they give poor parents the power to rescue their children from bad public schools. Opponents say they could starve public education, by siphoning off the best students for private schools.