Winning at the Supreme Court requires being able to count to five.
After listening Feb. 20 to what the justices had to say during oral arguments on school vouchers, I don’t think either side can be entirely confident of counting past four. But the pro-voucher forces appear to have the edge.
Chief Justice William Rehnquist as well as Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia are clearly ready to declare vouchers constitutional. (Thomas — as usual — didn’t ask any questions. But his position on this issue is well known.) Justices Ruth Bader Ginsburg, David Souter, Stephen Breyer and John Paul Stevens are just as likely to go the other way.
Getting to five will require winning the support of Justice Sandra Day O’Connor — the frequent swing vote on important First Amendment issues before the court.
During the oral arguments, a total of five lawyers argued for 90 minutes about the constitutionality of the voucher program in Cleveland, Ohio — an arrangement designed to enable poor parents to send their kids to private schools using state money. Since most of the private schools participating in the program are religious, some 96% of the voucher children attend religiously-affiliated schools.
Here's the heart of the First Amendment issue in this case: Does the Cleveland program provide government funding to religion in violation of the establishment clause? Or does the fact that the vouchers go to parents — who then decide independently where to use them — mean that no government endorsement or promotion of religion is involved?
According to voucher opponents, the fact that the money passes through the hands of parents is meaningless. It’s still government funding of religion. Besides, they add, there’s no real “parental choice” among religious and non-religious alternatives because the vast majority of non-public schools participating in the program are religious schools. The overall effect of the program is government support for religion.
The pro-voucher side contends that the program is completely neutral toward religion. The fact that voucher money ends up at religious schools is entirely the choice of parents — and not the result of government endorsement of religion.
So how will Justice O’Connor see it? Government-funded religion or parental choice? Judging from her sharp questions from the bench, O’Connor sounded very skeptical of the argument that giving a voucher to parents to use anywhere they wish amounts to government establishment of religion.
What about the fact that 96% of the voucher kids end up in religious schools? Since the suburban Cleveland public schools refused to participate in the program, that leaves parents few other choices beyond the religious schools (mostly Catholic) that have agreed to take the kids.
O’Connor didn’t appear too disturbed by the lack of choice. She wanted to know why the court shouldn’t consider the entire range of options available to parents — including community (charter) schools. She pointed out that if you add those schools in the mix, parents have choices beyond the religious schools. The anti-voucher lawyer pressed the court to examine the voucher program in isolation, arguing that choices within public education are a separate matter. But O’Connor didn’t seem to be buying his argument.
Does this mean that the voucher proponents will get that crucial fifth vote? Maybe. In other cases, the majority of the Rehnquist Court has supported including religious schools in the mix when individuals make a private choice about where to use a government benefit. But even in those cases, O’Connor has been concerned to avoid government endorsement of religion. She appears to require that individuals have a real choice among a wide variety of alternatives — some of which may be religious.
It’s always tough to predict how a justice will vote — especially a centrist like Justice O’Connor. The case could still go either way. But if her questions at oral argument are any indication, O’Connor may give the pro-voucher forces their long-awaited majority.
We aren’t likely to know the court’s decision much before the current term ends in June. But if, as many court observers are predicting, school vouchers are given a constitutional green light, the nation faces a long, fierce public-policy debate that may well determine the future of public education.
Will vouchers cripple public education — as one side argues — or re-invigorate public schools through competition — as the other side insists? Will parental choice liberate students from failing schools? Or will voucher schemes drain vital resources from schools most in need?
Beyond the impact of vouchers on public schools, there’s the larger, and more important, question of nation building. Do we still need public schools to be places where most Americans learn to live with one another across our differences? Or is the common good best served by encouraging citizens to educate their children in a variety of schools — many of them religious?
Even if vouchers are declared constitutional, that’s just the beginning of the debate. Americans must then think long and hard about whether or not they are good for the future of American freedom and democracy.