WASHINGTON -- The Supreme Court announced Tuesday that it will decide this term whether taxpayer money can be used to pay for children to attend religious schools. The vouchers case offers an early legal test of President Bush's faith-based initiative.
The president wants public funds to flow to religious charities. But in the past, the Supreme Court has said the Constitution forbids direct public funding of religious institutions.
The outcome of the case also may shape the future of school reform.
Proponents of vouchers say that they offer hope to children who are trapped in the nation's worst public schools. These funds give parents a real choice, they say, and allow them to transfer their children to nearby private and parochial schools.
In 1995, the Ohio Legislature began offering scholarships, or vouchers, for children from low-income families in Cleveland. Each child is eligible to receive up to $2,500 to pay for private or parochial school.
As many as 4,000 students have taken advantage of the offer, and 96 percent of them transferred from public to religious schools.
Opponents of vouchers -- including the nation's teachers unions -- say that such programs drain money from the public system and thereby weaken the schools that educate the vast majority of children. They fear that if a limited use of vouchers is upheld, Ohio lawmakers will expand the tuition subsidies statewide.
But the Supreme Court will not decide whether vouchers are a good idea or a bad one. Rather, the justices will rule on whether this diversion of public money to parochial schools violates the First Amendment's ban on laws "respecting an establishment of religion."
In the 1960s and '70s, the court insisted that the First Amendment called for a strict separation of church and state. Back then, the justices quoted James Madison and Thomas Jefferson as saying that government should never require the taxpayers to pay money to support religion.
Following that view, the Supreme Court in 1973 struck down a New York aid program that reimbursed low-income parents who paid tuition to private schools. In a 6-3 decision, the court said this subsidy for religious education violated the First Amendment.
In recent decades, the court has edged away from its insistence on a strict separation between church and state. Last year, for example, the justices upheld a federal aid program that pays for computers in schools, both public and parochial. The majority characterized this as a type of indirect and incidental support for religious schools, not a direct subsidy.
But the justices have not explicitly overruled the 1973 New York ruling on vouchers.
In the Cleveland case, a federal trial judge and the U.S. Court of Appeals cited the New York precedent in striking down Ohio's use of vouchers. These judges called the state aid program a "diversion of government aid to religious institutions."
Shortly after taking office, the Bush administration's solicitor general, Theodore Olson, filed a brief urging the Supreme Court to take up the Cleveland case and to uphold the use of vouchers. The court followed at least the first part of his advice by voting to hear the appeals.
The case, known as Zelman vs. Simmons-Harris, No. 00-1751, will be heard in January.
The outcome probably depends on Justice Sandra Day O'Connor. Four justices have voted regularly to allow more state aid for religious schools, and O'Connor usually, but not always, joins them.
Activists on both sides of the issue portray the case as momentous.
"This is probably the most important church-state case in the last half-century," said Barry Lynn, executive director of Americans United for Separation of Church and State. "It will be a historic showdown over government funding of religion."
Clint Bolick, a lawyer for the Institute of Justice who represents some Cleveland parents, called it "the most important educational opportunity case since Brown vs. Board of Education. This is not about religion. It's about the education of millions of schoolchildren," he said.
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