WASHINGTON The Constitution allows public money to underwrite tuition at religious schools as long as parents have a choice among a range of religious and secular schools, the Supreme Court ruled today.
The 5-4 ruling led by the Court's conservative majority lowers the figurative wall separating church and state and clears a constitutional cloud from school vouchers, a divisive education idea dear to political conservatives and championed by President Bush.
Opponents call vouchers a fraud meant to siphon tax money from struggling public schools.
The Court, ruling in Zelman v. Simmons-Harris, endorsed a 6-year-old pilot program in inner-city Cleveland that provides parents a tax-supported education stipend. Parents may use the money to opt out of one of the worst-rated public school systems in the nation.
The majority said the program does not put the government in the unconstitutional position of sponsoring religious indoctrination, even though more than 95% of the vouchers are used to subsidize Catholic or other religious schooling.
Bush has been a staunch advocate of school vouchers, emphasizing
the issue in his campaign for the White House and pushing for federal legislation.
Congress last year shelved that legislative effort. But Bush resurrected the idea, proposing in his 2003 budget to give families up to give families up to $2,500 per child in tax credits if they choose a private school rather than a failing neighborhood public school.
Following the Court's hearing on arguments in February, Education Secretary Rod Paige said he would continue advocating on behalf of both improved public schools and school choice.
Republican lawmakers in Congress agreed with Bush's stance.
Key to the Court's reasoning in the voucher case was that children in the Cleveland program have a theoretical choice of attending religious schools, secular private academies, suburban public schools, or charter schools run by parents or others outside the education establishment.
The fact that only a handful of secular schools and no suburban public schools have signed up to accept voucher students is not the fault of the program itself, Ohio authorities say.
A majority of the justices agreed.
"We believe that the program challenged here is a program of true private choice," Chief Justice William H. Rehnquist wrote for himself and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
The Cleveland program goes too far toward state-sponsored religion, the dissenting justices said. It does not treat religion neutrally, as Rehnquist contended, wrote Justice David H. Souter. The majority is also wrong about the question of whether parents have a true choice among schools, Souter wrote for himself and Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.
"There is, in any case, no way to interpret the 96.6 percent of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers," Souter wrote.
The Bush administration sided with Ohio, arguing that the program is constitutional because parents control where the money goes.
In Cleveland, the public money flows to parents, not directly to the church-run schools, the program's supporters noted.
Today's ruling continued a trend of the Court in recent years to ease the path toward state support of religion.
In a case two years ago, Mitchell v. Helms, the Court ruled that providing educational equipment to religious schools with taxpayer money does not violate the Constitution. In 1997, it held in Agostini v. Felton that it was constitutional for public school teachers to provide supplemental, remedial instruction to disadvantaged students in religious schools.
In 1983, it ruled in Mueller v. Allen that taxpayers could deduct tuition, textbooks, and transportation expenses from state income taxes expenses incurred by children attending private and religious schools.