Ohio law appears to meet precedent
School vouchers are one of the most important issues facing educational leaders, lawmakers, courts, and parents.

Advocated as a form of market choice by Nobel Laureate economist Milton Friedman almost 50 years ago, vouchers are not a panacea. Rather, by acknowledging the vital role of public education in American society, proponents of vouchers recognize that a good thing can be better.

Proponents and opponents of vouchers both grant that many urban public schools need to be repaired. The two camps disagree about whether vouchers are a remedy.

The key issue in the much watched voucher case pending before the U.S. Supreme Court is whether poor families in Cleveland can participate in the Ohio Pilot Project Scholarship Program. The initiative provides scholarships that allow poor children to attend participating schools. While it's true that most schools that accept the state-funded vouchers are private, that's because public schools chose not to participate in the program.

This case reached the Supreme Court after the Sixth Circuit Court ruled that the voucher experiment had the effect of advancing religion. Even though the appellate court relied on a 1973 Supreme Court case that struck down a tuition grant program in New York, the U.S. Supreme Court is likely to uphold Ohio's program for two important considerations, one legal and the other relating to equity.

Since 1993 when it ruled that a student in a Catholic school in Arizona could have a sign language interpreter serve him in his school, the court has undergone a dramatic shift with regard to the First Amendment. Despite the cries of voucher critics, the First Amendment does not refer to Thomas Jefferson's tired and often misapplied metaphor of "building a wall of separation between Church and State."

As the court has spent years trying to divine the meaning of the First Amendment, it has increasingly abandoned Jefferson's "wall of separation," at least with regard to state aid to religious schools. In doing so, three distinct judicial camps have emerged.

The conservatives, Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, are willing to accommodate religious schools and are almost certain to uphold vouchers.

Justice Anthony M. Kennedy, often a swing vote, is likely to join the conservatives.

At the other end, liberal Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, who call for strict separation of church and state, are just as certain to oppose vouchers.

Justice Stephen Breyer, typically a liberal, is a wildcard in light of his recent opinions. Thus, he and Justice Sandra Day O'Connor, a moderate whose vote often determines the outcome of cases, will be pivotal.

In the most recent aid case, which focused on whether religious schools in Louisiana could have access to publicly funded educational materials, Justice O'Connor, joined by Justice Breyer, agreed that aid could be provided but disagreed with the court's rationale.

O'Connor and Breyer were concerned aid recipients were selected on the basis of secular, neutral criteria, including parental choice, they feared that there were insufficient safeguards to ensure that materials were not diverted to religious purposes.

In the pending Ohio case, Justice O'Connor, and perhaps Justice Breyer, should be satisfied that vouchers are constitutional because, like the

Arizona case, the funds go directly to parents who endorse checks over to schools to pay for tuition and, as in another case, the aid is for a targeted population.

The second reason why the court is likely to uphold vouchers is basic equity. If it permits vouchers, the court will afford poor parents a greater range of choices. In the midst of red-herring arguments about potential divisiveness that might result by aiding religious schools, opponents conveniently fail to note that 73.4 percent of the children who participated in the Ohio program were minorities; 70 percent of those families were headed by a single mother with average family incomes of $18,750.

If urban children are to escape the vicious cycle of poverty that has tied them down, Ohio's voucher program may be their last best hope by allowing them to escape failing schools and enter educational environments where they can succeed.

* Charles J. Russo is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and an adjunct professor of law at the University of Dayton.