Ruling in Ohio Case Could Affect Other States' Decisions

The Supreme Court announced yesterday that it will decide whether the Constitution permits the use of public funds for tuition at private and religious schools, a bitterly debated question whose resolution by the justices could reshape American education.

The case before the court involves a program created by the Ohio legislature in 1995 to cope with the near-breakdown of Cleveland's public schools. It provides a maximum of $2,250 each to about 3,700 mostly low-income students whose parents prefer to send them to private nonsectarian schools, religious schools or suburban public schools.

Ohio is one of three states -- Wisconsin and Florida are the others -- that have such a "voucher" or "school choice" plan. Uncertainty over the constitutionality has been one factor deterring other states and the federal government from experimenting with vouchers.

But if the Supreme Court were to approve Ohio's plan, that deterrent would disappear. The idea could spread; polls show support for school choice among parents in many distressed urban school systems.

"If it's determined that vouchers are not unconstitutional, we may very well see high demand for them," says Jane Hannaway, director of the education policy center at the Urban Institute, a nonpartisan Washington research organization.

Cleveland residents, backed by teachers unions and civil liberties organizations, sued to block the vouchers program. They contended it was tantamount to taxpayer-subsidized religion, since 96 percent of the students who received aid used it to pay for tuition at schools affiliated with churches.

Ohio's Supreme Court twice said the plan did not violate the constitutional prohibition on establishment of religion. But earlier this year, the federal 6th Circuit Court of Appeals, whose jurisdiction includes Ohio, reached the opposite conclusion. That set the stage for the appeal that the justices agreed on Monday,in their first full conference after the summer recess, to hear.

Supporters of vouchers say that unless public schools face serious, well-funded competition, they will never fix themselves.

The Ohio case "is the most important educational opportunity case since Brown v. Board of Education," the historic 1954 school desegregation decision, said Clint Bolick, vice president of the Institute for Justice, a conservative legal group that has been representing Cleveland families who received funds.

But teachers unions and school administrators say cash-strapped public schools could collapse under the pressure of taxpayer-subsidized competition from private and parochial schools.

"We should not be taking scarce public money and spending it on a system that will balkanize us rather than [on] the public school system that unites us," said Sandra Feldman, president of the American Federation of Teachers.

Opponents of vouchers also note that the public's enthusiasm for the programs seems to be waning. Voters in Michigan and California rejected voucher plans on state ballots last year.

President Bush campaigned on a proposal to convert to vouchers some federal education funding for failing school systems. He abandoned the idea earlier this year in the face of congressional opposition.

However, the Bush administration took the unusual step of filing a friend-of-the-court brief urging the justices to hear the Ohio case -- in part, the brief said, because "delay in resolving that issue of vital national importance would disserve the interests of the students themselves."

The case comes before a court that has recently moved in the direction of greater support for some indirect forms of government aid to religious schools.

Majorities composed largely of conservative appointees of Republican presidents have held that, as long as the aid is provided on an equal basis to religious and nonreligious institutions alike, there is no risk that it will result in actual government sponsorship of a faith.

In 2000, for example, in an opinion written by Justice Clarence Thomas, the court held by a vote of 6 to 3 that federally funded state schools in Louisiana could lend their books and computers to schools operated by the Catholic Church.

However, the court has never explicitly overruled a 1973 case in which it struck down a New York state program that offered tax credits for private and parochial school tuition, saying that this had the impermissible "effect" of advancing religion.

The result may hinge on two justices who supported the court's 2000 ruling but expressed reservations about it. The fifth and sixth votes for Thomas's position came from Justices Sandra Day O'Connor and Stephen G. Breyer, who endorsed a separate opinion, written by O'Connor, suggesting there should be limits to the government's direct support of religious schools.

The court will hear three consolidated cases: Zelman v. Simmons-Harris, No. 00-1751; Hanna Perkins School v. Simmons-Harris, No. 00-1777; and Taylor v. Simmons-Harris, No. 00-1779.