October 4, 2001
Supreme Court to Rule On Vouchers
O'Conner could have swing vote.
The U.S. Supreme Court's long-awaited decision on the constitutionality of school vouchers is expected this term, with the high court apparently ready to tackle one of the most significant church-state rulings in years.
The U.S. Supreme Court, which opened its new term this week, agreed to hear three related cases involving government funds for students to attend parochial or private schools.
A high court ruling is expected by June.
Beyond the issue of vouchers itself, which divides the Jewish community, the ramifications of a Supreme Court decision could extend beyond education to the government financing of other activities, including charitable choice.
In its first week, the Supreme Court ruled on an issue of concern to the Jewish community when it rejected an appeal by four Orthodox Jewish students who claimed that Yale University had violated their religious beliefs by requiring them to live in coed dorms.
School vouchers were an integral part of the Bush administration's original education plan, but the White House abandoned the proposal after it gained little support in Congress.
Many Jewish groups are opposed to vouchers on the grounds that they violate the separation of church and state and drain money from the public school system. Orthodox groups, however, favor the use of vouchers and believe government support to religious schools is acceptable.
A Supreme Court decision in favor of vouchers could jettison vouchers back up to the top of the education policy debate.
But even if vouchers are deemed constitutional, state legislatures will have a final say in whether to allocate money to local voucher programs.
The voucher decision could have a major effect on charitable choice, the expansion of government funding to faith-based groups to provide social services.
The issues are seen as similar because both involve public funding for religious-based programs.
The policy, which had been a top priority in the early months of the Bush administration and is still favored, remains one of the most divisive issues in the Jewish community.
"Charitable choice will turn on this," said Marc Stern, co-director of the American Jewish Congress' (AJCongress) legal department. "If vouchers are upheld, it will be hard to argue that charitable choice is unconstitutional."
Many Jewish groups fear that an expanded partnership between government and faith-based Jewish organizations could break down the constitutional walls separating church and state and infringe on religious liberties.
Orthodox groups favor allowing religious institutions to play a greater role in providing social services.
The high court, often controlled by a 5-4 conservative majority, is closely divided on church-state separation issues.
The justices had several opportunities to rule on the constitutionality of vouchers in the past few years, but chose to sidestep the issue by declining specific cases.
The three cases the court has agreed to hear stem from a Cleveland-based school-voucher program that provides tuition to families who want alternatives to public schools.
Agudath Israel of America has argued in numerous legal briefs that as long as funds are provided to parents and not directly to schools, such school choice programs, even when used for religious schools, do not violate the First Amendment's separation of church and state.
"For far too long, the debate over school vouchers has been dominated by legalistic discussions of constitutional concern," said David Zwiebel, the fervently Orthodox Jewish organization's executive vice president for government and public affairs.
"If the Supreme Court upholds the Cleveland program, as we expect it will, perhaps we'll finally get around to focusing on the really important issue: improving education by expanding parental choice."
In contrast, the Anti-Defamation League (ADL) and other Jewish groups view vouchers as subsidies that essentially provide government funding of religion.
If vouchers are deemed constitutional, it will likely trigger a "new series of programs effectively channeling government funds to religious institutions using the voucher schemes," said Steven Freeman, director of legal affairs for the ADL.
The high court's decision could fall to Justice Sandra Day O'Connor, the expected swing vote in the decision. O'Connor has been somewhat cryptic in her assessment of government aid to religious schools, and experts are going to be watching her closely.
Last year, O'Connor seemed somewhat at odds with the decision in Mitchell vs. Helms, where the court ruled that government aid to religious schools for items such as computers was acceptable and does not have the effect of advancing religion, since the aid is offered without spending directives and is secular in content.
In its 6-3 ruling, the court rejected the distinction between direct and indirect aid, O'Connor noted in her separate concurrence, and held that the diversion of secular aid by a religious school to the advancement of its religious mission is permissible.
She wrote that the expansive scope of the decision was "troubling" and she felt that the approval of actual diversion of government aid to religious indoctrination "is in tension with this Court's precedents."
O'Connor also tried to nuance her decision. "In terms of public perception, a government program of direct aid to religious schools based on the number of students attending each school differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools," she wrote.
In the Jewish community, some have distinguished between their opposition to vouchers and their support for government money for auxiliary services, such as bus transportation or textbooks. This, they say, is not a diversion of funds from the public school system.
Last year, however, the Jewish Council for Public Affairs voted to return to its position that public funding should only go to public schools. In 1998, the umbrella organization of community relations councils and national agencies had decided to favor exceptions where the public funds are used for court-approved, nonsectarian benefits.
The significant financial burden faced by many parents of children at Jewish day schools will not be eased if the court decides narrowly and applies the voucher system to assist the needy, though some Chassidic schools would likely benefit, according to Stern of the AJCongress.
Regardless of the decision, many in the Jewish community believe more creative methods of raising money from the private sector will be needed to sustain day schools. Jewish day schools are becoming increasingly popular.
Another case of interest to Jewish groups that is already on the court's docket this term is one that addresses how people with disabilities are accommodated in the workplace.
The court's decision in that case could shed light on how it might deal with cases involving religious accommodation in the workplace.
Jewish groups also are watching several cases that the Supreme Court may yet decide to take. One would examine the constitutionality of a moment of silence and another would further delve into the constitutionality of prayer at a graduation ceremony.
The court could also take up one of several cases challenging race as a factor in college admissions policy, an issue that divides Jewish groups.
Also, some terrorism-related cases could find their way to the high court as a result of the Sept. 11 terror attacks in New York and Washington.
These cases could look at issues of interest to the Jewish community such as racial profiling, search and seizure techniques, wiretapping and detention of suspects.