Ohio’s school voucher program survived in the Supreme Court because five justices took into account all the educational choices Ohio provided for parents, not just the voucher choice. In the 1970’s and 80’s, the court looked only at the individual programs under challenge. Since most of the nonpublic elementary and secondary schools that benefited from these programs were church-related (and Catholic), it was easy for the court to conclude that programs that helped to pay the teachers’ salaries impermissibly advanced religion. But by taking a fresh look at the whole picture instead of one detail, the Supreme Court has finally gotten it right.
The Ohio program involved in Zelman v. Simmons-Harris was a very narrow programtriggered by a federal court’s injunction compelling the State of Ohio to take serious remedial action against the failure of many inner-city public schools in Cleveland. But the Supreme Court’s decision cuts much more broadlynot broadly enough for the lower courts to have to hold that any and all voucher programs are constitutional, but far more broadly than to protect only programs enacted because of an emergency in public schools’ performance.
Chief Justice William H. Rehnquist’s opinion for the court states the norm: In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious.
Importantly, Justice Sandra Day O’Connor concurs fully in this norm. Indeed, she looks at an even broader picture encompassing many governmental programs of assistance to faith-based initiatives.
Even more important, five justices have completely gotten over the hurdle of government helping to pay tuition at church-related schools that satisfy the compulsory education laws. For the four dissenters, that hurdle is insurmountable. As they understand the Constitution, the Establishment Clause absolutely prohibits the government from helping to pay tuition at church-related elementary and secondary schools.
Because the decision was only 5 to 4 and several of the justices are likely to be replaced in the next few years, the life span of the decision is unpredictable. But the good news is that thanks to the decision, school vouchers like Ohio’s are no longer an imminently endangered species. Changes will take place in the composition of the court, butso long as the court itself has not overruled the Ohio decisionthe lower courts (federal and state) must accept the constitutionality of voucher programs that really give parents their own free choice between public and private school educational programs.
As many commentators have already noted, state constitutions may prove a serious obstacle, because many of them contain very explicit provisions forbidding aid to sectarian education. But some state courts, including the New York Court of Appeals, have interpreted these provisions in a way that might not absolutely bar true private-choice voucher programs. As in Ohio, parents, not the state, would be directing the money to the church-related school.
Moreover, the validity of some of these provisions under federal constitutional law is at least debatable. When most of these provisions were enacted, sectarian schools was a code phrase for Roman Catholic schools. Laws that single out a particular church raise serious questions under the Establishment Clause.
In addition to the state constitutions, there are other concerns, especially the addition to voucher programs of conditions that would interfere with the religious identity of church-related schools.
The biggest obstacle, however, to any wide-ranging voucher program is that most people who send their children to public schools are reasonably satisfied with the education their children receive. These parents want improvements, but not a generalized voucher system.
With respect to narrowly focused programs like Ohio’s, the two biggest obstacles are the political clout of the teachers’ unions and the almost incredible apathy of so many adults about the plight of many inner-city schoolchildren. The plight of these children is an undeniable and heart-rending problemnot just for the children and their parents, but for the general public as well. The experiments with vouchers should be continued at least until a better solution for the inner-city school children is discovered and implemented. In other cities with problems like Cleveland’s, voters should urge their state legislatures to imitate Ohio’s example.
The immediate winners on June 27 were the more than 4,000 children (and their parents) using vouchers in Cleveland. The long-run winners will include the students and the general public in many other large American cities with identical problems. The Establishment Clause condemns no one to a life of poverty.
