High court should let families direct funds as they see fit
The dispute over school choice in Zelman v. Simmons-Harris, scheduled for argument Feb. 20, is perhaps the most watched case on the U.S. Supreme Court's docket this term. But the high degree of scrutiny the case will receive should not keep the Court from following through with its recent precedent and upholding the constitutionality of the program being considered.

The contending positions revolve around the First Amendment obligation not to establish religion. Only a few Supreme Court cases discussed the scope of this provision until the middle of the 20th century. But a large numberof decisions have addressed the topic more recently, many of which involved public financial assistance tochurch-related schools

During the 1970s and 1980s, most observers perceived the Court's rulings on this topic as comprising a series of adhoc judgments that were incapable of being reconciled on any principled basis. For example, the Court would notallow public employees to give therapeutic and diagnostic health services to parochial school pupils in the parochial school, but would allow public employees to offer such services if they were offered at a neutral site -- even at a mobile unit immediately adjacent to the parochial school. Reimbursing parochial schools for the cost of administering teacher-prepared tests required by state law was held to be invalid, but the state could compensate parochial schools for the expense of administering state-prepared tests.

The government could lend textbooks to parochial school pupils because, the Court explained, the books can be checked in advance for religious content and are "self-policing." But the government could not lend other seemingly "self-policing" instructional items such as tape recorders, films, movie projectors, laboratory equipment and maps. The public could underwrite the cost of bus transportation to parochial schools, but it was forbidden to pay for transportation for field trips from these schools "to governmental, industrial, cultural, and scientific centers designed to enrich the secular studies of students."

Indeed, in an unusually candid dictum, the Court in Committee for Public Education and Religious Liberty v. Regan (1980) forthrightly conceded that its approach in this area "sacrifices clarity and predictability for flexibility" -- a euphemism for expressly admitting the absence of any principled rationale for its product.

During the last decade, however, a majority of the Court has regularly upheld a series of programs that spend public funds for the benefit of all pupils -- those attending public schools, private schools and parochial schools. For example, one of the cases permitted public school teachers to provide substantial remedial instruction in subjects such as English and math on religious school premises.

Another upheld the neutral allocation of computers and equipment to religious and nonreligious schools alike. Indeed, four members of the Court -- Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- recently took the position in Mitchell v. Helms (2000) for a plurality of the Court that what matters is whether the aid is evenhandedly allocated and suitable for use in either a religious or public school. This, they stated, should be the test, rather than whether the aid is directly given to the school instead of to the parents, whether it is subsequently put to some religious use, or whether the aid is used by the teacher rather than the student.

But four justices do not compose a majority. The key is Justice Sandra Day O'Connor -- and, perhaps, Justice Stephen Breyer. Both are especially sensitive to any perceived endorsement of religion, particularly if it might make a reasonable, objective observer feel excluded from the community or of secondary status. This concern prompted them to concur, but write separately, in Mitchell. O'Connor made clear there that neutral allocation of resources between religious and nonreligious schools is not sufficient for them.

RELIGION AND CHOICE

On some level, O'Connor and Breyer believe that aid for religious uses should not be directly given to religious schools unless the aid results from the literal exercise of private choice. As they stated in Mitchell, "when government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, '[n]o reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief.'" Supporters of school choice are depending heavily on this concurring language from Mitchell, decided scarcely 18 months ago.

Which brings us to the current case, Zelman. It is unlike the prior cases in that it involves not incidental or supplementary help, but a scholarship for tuition. This program emerged as a result of the financial and educational meltdown of the Cleveland public school system, which was taken over by the state of Ohio pursuant to federal court order. The legislature enacted a scholarship program, primarily benefiting families with incomes below 200 percent of the poverty line, for students in kindergarten through eighth grade. The scholarship, worth up to $2,500, may be directed by the parents to any private school, religious or not, within the boundaries of the Cleveland school district.

The scholarship could have also been used in any suburban public school in an adjacent district, but none chose to participate. (The scholarship program also provides tutorial assistance grants for kindergarten through eighth grade students who choose to remain in Cleveland public schools. Another educational option available to the parents of Cleveland school children are 23 "magnet" schools that provide specialized approaches or curricula focusing on, for example, arts, foreign language, computers, or science. Also available are about eight "community," or "charter," schools that are fully supported by public money but operated by their own independent governing boards, not by local school districts.)

The major issue before the Supreme Court is whether the fact that 46 of the 56 private schools participating were religious renders the scholarship program unconstitutional under the establishment clause. The Ohio Supreme Court found no First Amendment violation, because the scholarships were available to all on a neutral basis, and the parents, not the government, decided whether to give the money to a religious school. (However, the state court struck down the statute for violating a "single subject" rule, which prevents the state assembly from bundling different topics into one bill, and it was re-enacted by the legislature to comply.)

In a separate federal challenge to the re-enacted law, the 6th U.S. Circuit Court of Appeals struck down theCleveland voucher program. It relied heavily on Committee for Public Education and Religious Liberty v. Nyquist, a 1973 Supreme Court decision that had invalidated a private school tuition reimbursement program in New York City.

Nyquist arrived at its conclusion because "there [were] no restrictions on the religious schools as to their use of the tuition funds -- the funds may be used for religious instruction or materials as easily as for erasers and playground equipment." This is true here as well, say the opponents of the Ohio plan. The dissenting 6th Circuit judge, however, found the New York program wholly inapt because assistance in that case was available only to parents with children attending private schools.

PRIVATE DECISIONS

The scholarship supporters contend that, unlike the New York program invalidated by the Supreme Court, the Cleveland program applies to all pupils. The program's only preference is for children of low-income families seeking improved education for their children, who badly need it. The scholarship is provided to the parents, not directly to the schools.

It is true that a high percentage of eligible parents have chosen to have their children attend private religious schools, rather than to have them receive additional tutoring in Cleveland public schools, or to attend a private nonreligious school. But this is a product of their genuinely independent and private choice, and a result likely accentuated by the refusal of public schools in districts adjacent to Cleveland to participate in the program.

Those defending the Cleveland plan urge the Court to apply the framework of neutrality and private choice that it has developed over the past two decades. Voucher supporters believe that neither the parents' free choice nor the equally free (if educationally unfortunate) nonparticipation of suburban public schools can be said to convey a message of religious endorsement. Students who choose to attend a religious school are hardly sending a message that they are "insiders" or "favored members of the community." Rather, their only message is that they are equal members of the community choosing a school -- public or private -- from among the many that do participate in the program. That a participating school is forbidden from preferring students of its own faith only makes clearer that the program does not endorse religion.

Reasonably informed observers -- especially those "aware of the history and context of the community," as O'Connor wrote in concurring in Capitol Square Review and Advisory Board v. Pinette (1995) -- should conclude that the program is designed to improve and expand educational opportunities to the children whose local public school has failed them. The Supreme Court, in keeping with its recent precedent, should conclude the same.

Jesse H. Choper is the Earl Warren Professor of Public Law at the University of California, Berkeley's Boalt Hall School of Law. Douglas W. Kmiec is the dean and St. Thomas More Professor of Law at the Catholic University of America Columbus School of Law.