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Since 1947 and the modern era of church-state jurisprudence, the Supreme Court has never upheld a program that has allowed for the public funding of religious instruction and education. Every type of aid that the court has found permissible has always involved discreet supplemental funding to religious schools to cover programs like nutritional services, nurses, sign-language interpreters, speech pathologists and remedial programs like special-education services. The court has always been very careful to ensure that the government does not fund the core functions of religious education.

Private religious schools account for more than 85 percent of the private schools in the country. These are the types of schools, traditionally, where religion is integrated throughout the curriculum, where religious values and teachings are promoted -- not just in classes on religion, but also in other courses. Most parents are attracted to religious private schools, to a large degree, because of the additional values that are taught and ... incorporated throughout the school day.

It then becomes impossible for the government to fund religious education because there's no way to separate the secular from the religious. When you start funding anything more than the peripheral programs I mentioned, you will inevitably then have the government funding private religious education and values. And that violates the core principles of separation of church and state that our founders decided on over 212 years ago.

In every single case it's faced, the court has always drawn the line to say government cannot pay for religious indoctrination and instruction. Those cases that have been upheld have always involved either discrete programs that have supplemented the education, but have not taken over the core functions, or programs that cannot be converted for religious uses.

The problem with vouchers is that they provide fungible, unrestricted cash that will flow to religious schools and pay for the entire instructional process. The court has never dealt with a case like vouchers, absent a tuition reimbursement case back in 1973, Pearl vs. Nyquist, which was struck down.

Another concern the court expressed was that these programs inevitably favor religious over secular private education and, therefore, create an incentive for children to attend religious schools. This was an important point for the Federal District Court in Ohio when it struck down the Cleveland voucher plan in December. Judge Solomon Oliver looked at the facts and determined that children could only use the vouchers to attend private schools -- no public schools were required to participate and 96 percent of the children attending private schools attended private religious schools. This, he said, didn't offer parents a choice, since there really weren't options available to children other than private religious schools.

If you combine those two themes -- that vouchers create incentive for religious education and that voucher funds are fungible -- you end up with the government funding religious education and training.

Proponents of vouchers say all of that makes no difference because the money is given to parents and it is they who determine where it gets spent. That's a specious argument because in all the voucher programs that have been designed, the money is restricted and can only be spent on private education. Parents are just conduits for the transfer of money from the state to the ultimate beneficiary, which is the private religious school. When the court has talked about the difference between direct aid to religious schools, which is forbidden, and indirect aid to religious schools, it is not concerned about the payment mechanism. The court is concerned about the effect the funds have on the religious schools. As a result, the courts have uniformly -- with only one decision to the contrary -- found that this type of aid violates separation of church and state

Anywhere between 85 to 90 percent of the children attending private schools are attending religious schools, and we know from the experience in Wisconsin that any voucher program will eventually be expanded to include private religious schools.

Out of the two cases currently pending, the most likely to go to the Supreme Court is the Ohio voucher plan because it's already in federal court. State courts are many times inclined to decide on state constitutional grounds, which then denies the [federal] Supreme Court the opportunity to review a state interpretation of a state's constitution. The Cleveland voucher plan doesn't have any other issues except for federal constitutional left for interpretation. And last fall, the Supreme Court issued a stay of Judge Oliver's decision when he enjoined the further application of the Cleveland voucher plan. In our regard, that shows they have some interest in this case. Also, four voucher cases have gone up to the Supreme Court, but the court has so far refused to hear them. You now have a split in the federal courts, and we think there's a good likelihood [they] will take this case.

Key for the Supreme Court will be two factors: The true availability of options under any kind of voucher program, and how the court interprets the definition of "direct aid." Are they going to look solely at the payment formula and does it go through a third person? Or are they going to look at whether the effect of the aid takes over core functions?

Most observers think that the court is split. Pro-voucher advocates can count on three to support them: Chief Justice Rehnquist, Scalia and Thomas would vote for vouchers almost under any circumstance. The four justices pretty sure to vote against vouchers are Souter, Stephens, Ginsberg, Breyer. There are two justices on the fence: Kennedy and O'Connor, who will be the key votes.
salon.com | March 27, 2000
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