In 1954, the U.S. Supreme Court shook the American educational and social scene by declaring that the “separate but equal” philosophy that had led to the segregation of public schools was unconstitutional.
Five decades later, the nations high court again has issued a ruling on education that observers agree is groundshaking.
In 1954, the U.S. Supreme Court shook the American educational and social scene by declaring that the “separate but equal” philosophy that had led to the segregation of public schools was unconstitutional.
Five decades later, the nations high court again has issued a ruling on education that observers agree is groundshaking.
A divided court has ruled that an Ohio program that allows public vouchers to be used at religious schools is constitutional.
The 5-4 decision could change the face of American education, depending on how widely the approved program is adopted.
Indeed, President George Bush quickly endorsed the use of vouchers – even as others warned of an unholy entanglement of state and church. (See article below)
The case in question focused on a so-called “education-choice” program in Cleveland, whose public schools have been judged as some of the worst in the nation.
In response, Ohio officials approved a tuition and tutorial voucher program.
Under the plan, families receive vouchers for use at participating schools, including public ones in adjoining districts, community schools, magnet schools and private schools. Students who remain in their own public school can receive aid for tutoring.
In 1999-2000, 56 private schools participated in the program, including 46 religious ones. No adjoining public schools chose to join. Thus, parents had their choice of the private schools or the community and magnet ones available. Overall, of the 3,700-plus students in the program that year, 96 percent enrolled in the religious schools.
For those opposed to the program, the figures clearly indicate the program is using public monies to fund religious instruction.
Beg to differ, the Supreme Court said in its majority ruling, which declared the Ohio program to be “entirely neutral with respect to religion” and not a violation of the constitutional ban against government establishment of religion.
The high court action overturned a lower court ruling that said the program did violate the separation of church and state.
Not so, ruled a high court majority that included Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day OConnor, Antonin Scalia and Clarence Thomas. The opinion was opposed by Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens.
In the majority opinion, Rehnquist noted that the high court consistently has differentiated between programs that give direct government aid to religious schools and ones that allow government aid to reach religious schools as the result of private choices by participating individuals.
“We believe that the program challenged here is a program of true private choice … and thus constitutional, …” he wrote.
In such programs, Rehnquist noted the “incidental advancement of a religious mission or the perceived endorsement of a religious message is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.”
Rehnquist indicated that the Ohio program does not favor religion. Indeed, the program actually creates a financial disincentive for religious schools, since parents choosing them must co-pay part of the cost, he noted. In turn, they could send their child to a community or magnet school at no cost.
Rehnquist said no reasonable observer would mistake the Ohio program as one of government endorsement of religion.
“The … program is entirely neutral with respect to religion,” he said. “It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district.”
Three justices filed dissenting opinions.
In his, Stevens characterized the majority decision as “profoundly misguided. …
“Whenever we remove a brick from the wall that was designed to separate religion
and government, we increase the risk of religious strife and weaken the foundation of our democracy,” he wrote.
Souter charged the majority reached a point of “doctrinal bankruptcy” as far as the Establishment Clause is concerned.
“If there were an excuse for giving short shrift to the Establishment Clause, it would probably apply here (given the record of Cleveland schools),” he said. “But there is no excuse. Constitutional limitations are placed on government to preserve constitutional values in hard cases like these.”
Souter said the court could affirm the Ohio program only by ignoring its own history, which includes a 1947 decision that states, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt.”
Souter said the cap on tuition in the Ohio program favors religious schools because they generally have lower tuition than secular private schools. Thus, low-income families could be forced to choose a religious school they may disagree with because they cannot afford a higher-priced secular one.
Souter also warned religious schools soon may find themselves chafing under state regulations. Already, participating schools are not allowed to give preference to members of their own faith, he said. And under the Ohio law, they could be sued for not hiring teachers of other faiths.
“(And) The money has barely begun to flow, …” Souter noted. “When government aid goes up, so does reliance on it; the only thing likely to go down is independence.”
Souter referred to Southern Baptists in warning that taxpayers also may find themselves objecting to funding religious schools that teach certain social views.
For instance, Protestants may object to funding Catholic schools that oppose the death penalty, Souter explained. “Nor will every secular taxpayer be content … to fund the espousal of a wifes obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention.”
Breyer also warned about the impact of vouchers on religion and society.
He noted that Ohio regulations already forbid participating schools from advocating lawlessness or teaching hatred of any person or group, based on race, ethnicity, national origin or religion. Regulations also stipulate that state officials are to revoke the registration of any school breaking the rules.
“It is difficult to imagine a more divisive activity than the appointment of state officials as referees to determine whether a particular religious doctrine teaches hatred or advocates lawlessness,” he said.
Breyer warned such situations will entangle church and state and promote division among religious groups that feel they are treated unfairly in contrast to others.
“In a society composed of many different religious creeds, I fear that this (decision) … risks creating a form of religiously-based conflict potentially harmful to the nation s social fabric,” Breyer concluded.