School voucher case is starkest church-state issue before Supreme Court in years

<br>WASHINGTON (AP) _ A government voucher plan to help pay tuition at private or religious schools could pass constitutional muster if parents had a wide array of choices beyond public education versus

Wednesday, February 20th 2002, 12:00 am

By: News On 6

WASHINGTON (AP) _ A government voucher plan to help pay tuition at private or religious schools could pass constitutional muster if parents had a wide array of choices beyond public education versus religious schools, several Supreme Court justices suggested Wednesday.

Vouchers like those used in a 6-year-old test program in Cleveland present the Supreme Court with the starkest church-state conflict in years. By their questions at a spirited oral argument session, justices indicated they will base their answer on the real-world effects of programs like Cleveland's, and whether they treat all children and all parents fairly.

``The question is whether there is neutrality,'' between religious and nonreligious schools, Justice Anthony M. Kennedy told a lawyer arguing that the voucher program is unconstitutional.

Chief Justice William H. Rehnquist and Justice Antonin Scalia seemed sympathetic to Ohio's argument that something must be done to help children trapped in a public school system whose quality has been heavily criticized over recent years.

Justice Sandra Day O'Connor, whose vote is considered crucial in this case, did much of the talking Wednesday. She repeatedly asked both sides whether quasi-public schools such as charter schools shouldn't be part of the mix as the court examines whether the Cleveland program offers a true, neutral choice.

``Why should we not look at all the options open to the parents in having their children educated?'' she asked.

Because of the way a lower federal appeals court ruled in finding the program unconstitutional, the main facts of the case before the Supreme Court deal with parents' limited choices within the voucher program itself. Charter schools and their ilk are not part of the program.

Within the program, between 96 percent and 99 percent of pupils attend a religious school. Only nine of the participating 51 schools are nonreligious.

``We're asking you to look at the reality,'' said Robert Chanin, a lawyer arguing against the program. ``We're asking you to look at a special benefit that the state of Ohio is making available to a select group of parents.''

Justice David H. Souter seemed troubled by the way the Cleveland program works in practice.

``The bottom line is that 96 percent of the kids taking the tuition aid are attending religious schools,'' Souter said. ``The money's going top end up where it's going to end up, and the 96 percent is pretty persuasive.''

Backers say vouchers offer an alternative to wretched public schools where students face long odds against getting a decent education. Students could choose either secular, private academies or parochial schools.

The voucher concept _ known to its supporters as school choice _ faces opposition from the education establishment, which calls it a bad idea that robs public schools of precious dollars and motivated students, as well as from those who believe it violates the constitutional principle of separation of church and state.

The Constitution does not actually mandate a wall between religion and government, but it does say the government cannot ``establish'' religion. In practice, that has come to mean the government cannot promote religion or pursue policies that favor one religion over another.

Ohio, backed by the Bush administration, contends that the Cleveland program passes that constitutional test. Parents, not bureaucrats, choose how to spend the voucher money, Solicitor General Theodore Olson wrote in court filings.

The program encourages suburban public schools to take inner-city children, and the fact that no suburban schools have signed up is not the fault of the program, Ohio maintains.

Supporters hope the court will see the case as consistent with its trend toward greater inclusion of religious programs in public facilities, as well as public spending on religious schools.

In the current school year, the Cleveland program is underwriting tuition for 4,456 students, all but a handful of whom are attending some kind of religious school. About three-quarters of the students are attending Catholic schools.

The program pays up to $2,250 per year to qualified students, most of whose families are poor.

President Bush has supported a national voucher plan since early in his campaign for the White House. Congress rejected private-school vouchers last year, but Bush resurrected the concept in his 2003 budget.

The cases are Zelman v. Simmons-Harris, 00-1751; Hannah Perkins School v. Simmons-Harris, 00-1777; Taylor v. Simmons-Harris, 00-1779.