Supreme Court Debates Vouchers

Justices hear oral arguments in a case with broad implications not just for education but the separation of church and state and the very definition of public versus private in a democratic society.

By Barbara Miner

WASHINGTON, D.C. – The U.S. Supreme Court heard oral arguments Feb. 20 on the constitutionality of a Cleveland voucher program dominated by private religious schools – a case with repercussions not only for education but for the future of President Bush’s “faith-based” initiative and the very definition of public versus private in a democratic society.

“This could be one of the most far-reaching cases in recent years,” Ralph G. Neas, president of People for the American Way Foundation, said the day of the arguments. “It could determine the future of church-state separation in America.”

The Supreme Court justices will decide the fate of a voucher program in Cleveland, originally passed by the Ohio legislature in 1995, in which public tax dollars are used to pay for tuition vouchers of up to $2,250 at private schools. This year, vouchers are being given to 4,266 students, most of whom are low income and 99.4 percent of whom attend religious schools.

The legal heart of the matter is whether the program violates the U.S. Constitution’s “Establishment Clause” which mandates the separation of church and state and prohibits government endorsement of religion. Beyond that, little else is clear. Cases involving church/state separation are some of the most legally complicated and nuanced, and the more than 25 legal briefs presented to the Court endlessly dissected and parsed previous decisions to find support.

The Justices themselves are divided on the matter, and staked out key positions in the oral arguments.

Justice Stephen Breyer focused on how a voucher system of education would be seen as government endorsement of religion. He posed the hypothetical situation in which “imagine you came from Europe or Africa, or a different place, and said, what do they do in the United States by way of educating their children, and you’re told, well, $60 billion a year, $40 billion, or some very large amount of money is being spent by the government to children K through 12 what is basically a religiously oriented education taught by a parochial school. Wouldn’t you then say, in the United States of America … the government of the United States endorses a religious education for young children by putting up money, massive amounts?”

Justice Antonin Scalia most aggressively defended the pro-voucher stance that there is no government endorsement of religion because money is allocated on the basis of the individual choices of parents. “Unless there is an endorsement of religion involved here, I don’t see why the fact that some of the money, even most of the money goes to religious schools, makes any difference,” he said.

Scalia also echoed the political arguments of voucher supporters and at one point argued that the problem with public schools in Cleveland “isn’t a money problem. It’s a monopoly problem.” (At another point, Scalia got the city wrong and referred to the voucher program in “Cincinnati.” It was one of several instances where justices displayed a surprising confusion about educational issues.)

In addition to Cleveland, there is an 11-year-old program in Milwaukee with about 10,900 students this year and a two-year-old pilot program in Florida involving about 50 students.


In an indication of the politics swirling around the case, competing demonstrations were held outside the Supreme Court during the arguments. One side, led by voucher families bused and flown in from Cleveland and Milwaukee, invoked the politically seductive cry of “parent choice” as the justification for using public dollars to pay for private religious schools. The other side, organized by the NAACP and People for the American Way, argued that tax dollars should be used for public schools open to all children and responsible to the public at large.

Vouchers have been a bedrock of the conservative education agenda and its goals of privatizing the public education system and of providing tax dollars for religious education. The ability to move that agenda forward has been hampered by the legal cloud hanging over vouchers, however. In December 1999, a federal district court found that the Cleveland voucher program violated the Constitution’s Establishment Clause, and the Sixth Circuit Court of Appeals upheld that decision a year later.

To the extent one can predict Supreme Court decisions, four justices are seen as likely to uphold the Appeals Court and declare the Cleveland program unconstitutional: Justices Breyer, Ruth Ginsburg, John Paul Stevens, and David Souter. Four justices are seen as sympathetic to vouchers and willing to declare the Cleveland program constitutional: Chief Justice William Rehnquist and Justices Clarence Thomas, Anthony Kennedy and Scalia. Justice Sandra Day O’Connor is seen as the crucial swing vote, and she was most active in questioning attorneys on both sides of the issue.

Many observers expect the Court to issue a narrow legal opinion that speaks specifically to the Cleveland situation. But even a narrow opinion would carry enormous political weight. If the Court declares the Cleveland program constitutional, voucher plans will likely proliferate at the local, state, and national level, taking needed resources and energy away from reforms to improve public education. Just as clearly, a decision striking down the Cleveland program will be a setback to the voucher movement, making it less likely that politicians will put their efforts into voucher plans that would end up in the courts.

In a highly unusual move underscoring the case’s importance, oral arguments were extended beyond the usual 60 minutes to 80 minutes. Each side was given 40 minutes to argue their case and answer questions. Three lawyers argued in support of the state of Ohio and its voucher program – including the Bush Administration’s Solicitor General, Theodore Olson; two argued against. A decision is expected before the Court’s term ends in June.

The justices will look at two key questions to decide whether the Cleveland program is an unconstitutional government endorsement of religion. One involves whether the Cleveland program is “neutral” toward religion- in other words, whether the program is even-handed and does not favor religious schools. The other involves whether the voucher money can be considered government aid to religious schools or whether it is government aid to parents, who make private, individual decisions on where to use the money.

Because 99.4 percent of the Cleveland voucher students attend religious schools, it is difficult to argue the program is “neutral” toward religion. To make such a claim, voucher supporters say the program can only be analyzed in the context of all options in Cleveland, from traditional public schools, to public magnet schools, to public community schools (the name given to charter schools), to the voucher program.

One surprise at the oral arguments was the unexpected amount of time devoted to clarifying the various schooling options in Cleveland, in particular the confusion among the justices about the nature of Cleveland’s community (i.e., charter) schools. Several justices, in particular O’Connor, at times seemed to operate under the assumption that the community schools are private schools, even to the point of charging tuition. (Such a perspective, if it were true, could bolster the argument that the Cleveland program is not skewed toward religion because significant public dollars were going to private community schools and not just religious voucher schools.)

At one point, O’Connor asked Robert Chanin, the lead attorney asking the Court to strike down the Cleveland program, “The community schools are basically private schools that are getting a different kind of state aid. Why shouldn’t they be considered?” To which Chanin replied: “They are not private schools, your honor. They are public schools.”

In the closing moments of the oral arguments, O’Connor asked one final time, “Are community schools public schools in Ohio?” Ohio Assistant Attorney General Judith French, who was defending the Cleveland program, answered that they are indeed public schools and clarified once again they are not allowed to charge tuition.

The question of both the religious and non-religious options available to Cleveland families was clearly important to O’Connor – a distinction which could be construed to mean she believes the Cleveland program is “neutral” toward religion.

But it would be rash to try to predict O’Connor’s vote. O’Connor was also troubled by the broad religious sweep of the Cleveland program and the fact that voucher schools imbue their religious mission into all aspects of education. She noted, for instance, that “there was no attempt to make sure that the money that ends up in the parochial schools is not used for religious training, or teaching. There have been other federal programs, for example, where there have been such limitations on usage. There’s none of that here.”

Justice Souter also seemed deeply disturbed by the religious nature of the Cleveland program. He argued that government neutrality toward religion is necessary but not sufficient for the program to pass constitutional muster, and that one must also look at the program’s effect. “And at the end of the day,” he said, “the effect is a massive amount of money into religious schools… . That, I think, is the sticking point here.”

Conservative supporters of vouchers, meanwhile, argue that the taxpayer-supported vouchers are not direct government aid because it is individual parents deciding whether or not to send their child to a religious school. Justice Souter, for his part, countered that “there is perhaps something specious” about the notion of wide-open parental choices because in practical terms, “the money is going to end up where it ends up, and the 96 percent figure is pretty persuasive.” (Souter was referring to the 96 percent of students attending religious schools at the time the case entered the courts several years ago; the figure is now 99.4 percent.)

A significant portion of the legal debate centers on the 1973 Nyquist decision in which the Court struck down a New York law providing grants to parents who sent their children to private elementary and secondary schools, the majority of which were religious.

While voucher opponents have noted the many similarities between Nyquist and the Cleveland case, voucher supporters argue that since 1983, the Court has issued six opinions diluting church/state safeguards and upholding programs under which public funds are used in religious schools.

One difference between Nyquist and the Cleveland case is that the voucher schools in Cleveland are not allowed to discriminate on the basis of religion (or race or ethnic origin). Voucher supporters used this nondiscriminatory measure to bolster the educational, secular purposes of the Cleveland program…- arguing that a significant percentage of voucher students at religious schools are not of the same faith but attend for educational, not religious, reasons.

In an example of how the justices can use facts for their own purposes, Justice Souter turned the matter on its head and said this may enhance the proselytizing mission of the schools: “I mean, if they’re proselytizing, doesn’t it make good sense for them to admit anybody who may come along,” he said, “and yet the proselytizing can’t be established under the Establishment Clause.”

French did not disagree that the schools were proselytizing but said they did so “at the behest of the parents, not at the behest of the government.”


Although the term “faith-based” did not come up during the oral arguments, clearly there is keen interest in the case’s outcome as the Bush administration tries to fashion a new approach to the government’s delivery of public social services – one in which money is funneled to private social service agencies, including religious groups.

While the Cleveland case legally rests on the question of separation of church and state, the debate in the public arena has clearly centered on policy matters – and the media image that vouchers are about providing options to low-income minority parents being failed by urban school systems.

Yet legally, it is minimally significant that the Cleveland vouchers go mostly to low-income parents. If the Court accepts that there is no government endorsement because parents are making decisions, that reasoning can extend to all parents regardless of income.

Voucher opponents generally have been unsuccessful in exposing the voucher movement’s cynical use of low-income parents to build pressure for a voucher agenda whose ultimate goal is universal vouchers for all parents – regardless of whether they are rich or poor, urban or suburban.

While the perception is that the Cleveland voucher program is targeted toward African Americans, the reverse is true. African Americans constitute 71 percent of the students in the Cleveland public schools, yet they account for only 53 percent of voucher students. Whites, meanwhile, make up 19 percent of Cleveland public school students but 29 percent of voucher students.

Furthermore, recent research by the group Policy Matters Ohio found that only 21 percent of voucher students had attended a Cleveland public school in the year before enrolling in the voucher program.

Comparable figures are difficult to obtain in Milwaukee because the state office overseeing the voucher program does not collect such data due to concerns about government “entanglement” in religion.

Tom Mooney, head of the Ohio Federation of Teachers, noted in a debate the day before the arguments that the voucher controversy cannot be separated from broader debates on the extent private forces will be allowed to control public services. “School vouchers are part of a larger movement to privatize education, which in turn is part of a larger movement to privatize other social services,” he told an audience at the libertarian-oriented Cato Institute.

Even if vouchers get a legal go ahead, policy issues remain – such as private schools’ lack of public accountability and the ability of private schools to refuse to educate all children, particularly those with special education needs or discipline or academic problems.

Clint Bolick, a leading voucher attorney with the Washington-based Institute for Justice, told the Cato audience that he felt the Supreme Court case was a “win-win” situation for the voucher movement. If the Court upholds Cleveland, vouchers plans will blossom. Even if the Court strikes down Cleveland, voucher supporters will use the decision as a blueprint to build a new, more legally palatable voucher initiative. “At worst, we will receive a momentary setback,” he said.

Mooney and Bolick did agree on one point: the Supreme Court will have a significant impact on the controversy but not the final word.

“This issue [of vouchers and privatization] will not go away, ” Mooney said, “no matter what five justices of the Supreme Court decide to say on one side or the other.”

Barbara Miner is managing editor of Rethinking Schools. Visit Rethinking Schools Online, ( to see a special section on vouchers.