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Editorial: Voucher victory / The court unwisely upholds an Ohio plan

Sunday, June 30, 2002

In upholding an Ohio law that uses state funds to allow parents in Cleveland to pay for tuition at parochial schools, the U.S. Supreme Court last week gave its blessing to a program that, in effect if not in intent, provides a significant subsidy to Catholic education.

For that reason, in our view, the 5-4 decision tilts too much in the direction of the "establishment of religion" prohibited by the First Amendment. That is true even though Catholic and other religious schools undeniably provide a service to the larger society by ably educating their pupils in secular subjects.

Granted, the "wall of separation" between church and state in the educational area has always been a porous one -- the high court has allowed state governments to provide parochial-school students with secular textbooks, transportation and even tuition tax credits.

But the Cleveland plan does more than poke another hole in the "wall of separation." It bounds over that wall, providing a state subsidy not only for instruction in secular subjects, but for religious education as well.

As Justice David H. Souter pointed out in his dissenting opinion, this state of affairs is impossible to reconcile with a 1947 Supreme Court decision holding that "no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

The majority of the Supreme Court, led by Chief Justice William Rehnquist, sidestepped the issue of state subsidy of religious instruction, concluding that the Ohio law was constitutional because it allowed vouchers to be used at religious and nonreligious schools alike. (Never mind that 96 percent of the students in the Cleveland program were enrolled in religious schools, mostly Catholic.)

But there is more to this change of direction on the court than the particular legal analysis of the majority opinion. This decision also reflects developments in American society outside the chambers of the high court.

One such development, which even Justice Souter acknowledged in his dissent, is the lamentable quality of education offered by too many public schools. Referring to Cleveland's schools, Justice Souter conceded that those "schools are failing to serve their objectives. . . . If there were an excuse for giving short shrift to the [First Amendment's] Establishment Clause, it would probably apply here."

The other change in society that is reflected is the increased respect accorded Catholic schools by Americans of all religious backgrounds. In the 1950s and 1960s, opponents of state aid to parochial schools could argue that those schools, however academically rigorous, were essentially weeklong Sunday schools, staffed largely by members of religious orders and interested in educating only children of the faithful.

Forty years after the opening of the Second Vatican Council, however, American Catholic schools -- staffed largely by lay teachers, often using the same textbooks found in public schools -- are less sectarian and more ecumenical, while still offering a religious ethos that appeals to parents of many backgrounds.

More to the point, Catholic schools in cities like Cleveland -- and Pittsburgh -- provide a quality education to poor and minority children many of whom are not members of the Catholic Church. The fact that a leading proponent of Catholic schools is a Methodist president of the United States is a reflection of this fact.

The Supreme Court is not insensible to such realities. That doesn't mean last week's decision is legally correct; even the most ecumenically minded parochial school is still in the business of teaching religion, and schools run by some churches or mosques might offer a curriculum that would cause Chief Justice Rehnquist to blanch. What is clear is that the social and political context in which the court parses the Constitution has changed.

Does that mean this decision will open the floodgates for programs similar to the one in Cleveland? Not necessarily.

As former Pennsylvania Gov. Tom Ridge discovered, even a pilot voucher program is difficult to sell to pro-public-school legislators who oppose vouchers for reasons that have nothing to do with the "establishment of religion." (Another obstacle to vouchers in Pennsylvania is language in the state Constitution saying "no money raised for the support of the public schools of the commonwealth should be appropriated or used for the support of any sectarian school.")

As the conversation about vouchers shifts from the meaning of the First Amendment to the utility of the idea, proponents and opponents alike will be challenged to demonstrate the superiority of their preferred remedy for underachieving schools -- vouchers, charter schools, more equitable funding for public schools, consolidation of school districts and so on.

For, regardless of whether the Supreme Court correctly interpreted the First Amendment in this case, the problem that inspired the Cleveland voucher program is a real, widespread and nagging one.

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