June
27, 2002, 1:25 p.m. On
to the State Legislatures . . .
The Supreme
Court opens the school-choice gates.
By Robert Alt
or those of
you who are still despondent after yesterday's ridiculous opinion by the
Ninth Circuit, the United States Supreme Court today offered reason for
hope in judicial humanity by handing down a massive victory for school
choice. The Court led by the chief justice ruled 5-4 that Cleveland's
school-voucher program is constitutional.
The outcome of the
case is not terribly surprising, given that the Court has ruled numerous
times in recent years in favor of neutral aid to religious institutions.
What is surprising, however, is how solid the decision is. First, the
decision has a clear majority in both its outcome and its reasoning. While
often cases raising a religious claim under the Establishment Clause create
fractured opinions in which parties agree for different reasons, today's
decision by the chief was joined in full by five justices. This should
eliminate some of the ambiguity that often attends to Supreme Court decisions.
While two justices wrote concurring opinions, neither of them cast doubt
on the majority decision.
Second, the decision
is painfully clear in its ruling: Neutral government programs which provide
parents with the true private choice to send their children to religious
or nonreligious schools are constitutional, period. Notably absent
from the decision is the hedging which often accompanies the Court's religion-clause
cases. For example, the Court clarified that it meant what it said nearly
20 years ago in the Mueller case: Genuine independent choice is
not measured by how many parents choose to send their children to religious
schools, but is instead properly determined by whether the program is
neutral-that is, whether it permits religious and nonreligious students
and schools to participate on an equal basis. This key part of the ruling-a
ruling upholding a program in which 96 percent of the parents chose to
send their children to religious schools — should make it easy to
dismiss many scurrilous lawsuits that might have otherwise popped up challenging
school-choice programs because there were too many parents participating
in the religious schools.
Today's decision
means that Ralph Neas and his colleagues at People for the American Way
may be forced to divert at least a portion of their attention away from
collaborating with Democratic senators to thwart qualified judges in order
focus on what they are really good at: assuring that minority children
are subjected to substandard public schools. Indeed, a press release on
PFAW's website quotes Neas as saying he they will fight school-choice
initiatives state-by-state. Of course, Neas is not the only modern-day
George Wallace standing firm in the schoolhouse door: You can be assured
that the teachers' unions will fight tooth-and-nail, as they have throughout
the litigation, to assure that "no dues payment gets left behind."
While these groups will throw tons of money and try as much as they can
to confuse the issue, there is little question that today's decision will
create a shockwave of activity in legislatures, as parents who have been
forced to both fund and send their children to substandard schools demand
the newly deemed constitutionally appropriate choice.
While regular Court
watchers were nervous about what Justice O'Connor, traditionally a swing
voter and skeptic of all bright lines, would have to say on the issue,
her concurrence proved to be a reasonable rejoinder to the dissent. Responding
to dissenting Justice Souter's assertion that somehow the program wasn't
neutral because religious schools are too economically competitive (no,
I'm not making this up), O'Connor redirects her misguided brethren to
the key finding in the case: "In my view the more significant finding
in these cases is that Cleveland parents who use vouchers to send their
children to religious private schools do so as a result of true private
choice." Thanks to the today's decision, other parents will be able
to make a similar choice.
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or those of
you who are still despondent after yesterday's ridiculous opinion by the
Ninth Circuit, the United States Supreme Court today offered reason for
hope in judicial humanity by handing down a massive victory for school
choice. The Court led by the chief justice ruled 5-4 that Cleveland's
school-voucher program is constitutional.
