Vouchers on trail: will the U.S. Supreme Court's decision in Zelman end the voucher debate? (Feature).

LEGAL EXPERTS ARE ALREADY DRAWING ANALOGIES between Zelman v. Simmons-Harris and landmark rulings like Brown v. Board of Education and the seminal First Amendment decisions that have shaped American jurisprudence over the past half century. How the U.S. Supreme Court rules on the constitutionality of Cleveland's school-voucher program will not only define the legal boundary between church and state more clearly; it could also help redefine the meaning of public education and expand the range of opportunities available to poor children.

Enacted by the Ohio legislature in 1995, the Cleveland Scholarship and Tutoring Program allows 4,000 low-income children to attend private religious and secular schools with up to $2,250 in public support. Participating schools must cap their tuition at $2,500 a year; the state pays up to 90 percent of whatever the school charges, depending on family income. Following a high-profile legal battle, the program was upheld by the Ohio Supreme Court in 1999, prompting opponents to take their case into federal court. On the day before school was to open that year, federal district court judge Solomon Oliver struck down the program, ruling that the use of tax dollars to pay for children to attend religious schools offends the First Amendment's Establishment Clause. Judge Oliver halted the acceptance of new students to the program while the case was being appealed. Soon thereafter, a sharply divided (5-4) U.S. Supreme Court took an unusual move to vacate Judge Oliver's injunction and allow the program to continue una ltered while the case is in litigation.

In December 2000, the U.S. Court of Appeals for the 6th Circuit affirmed Judge Oliver's ruling by a 2-1 vote. The appeals court relied heavily on legal precedents set down by the Supreme Court in 1973 in Committee for Public Education v. Nyquist. At issue in Nyquist was a New York State program that gave low-income parents a partial tuition reimbursement for private-school tuition. The Nyquist Court found that the tuition-grant program had the "impermissible effect of advancing religion." It concluded that direct or indirect aid to sectarian schools is essentially a government-subsidized incentive to practice religion.

The thinking in Nyquist was remarkable on several counts. Inherent in the incentive concept is the assumption that parochial schools are so superior to public schools that the opportunity to attend the former is irresistible, even to those parents who do not want their children educated in a religious environment. Reasonable people can conclude that the lure of a safe and sound education is an argument for choice rather than against it. Preoccupied with the religious character of parochial schools, the majority also presumed that the court is capable of looking into the minds of legislators to determine their motivations. Using effect to derive intent, the court concluded that incidental aid to religious institutions in the form of tuition relief to parents is tantamount to a purposeful government act to promote religion.

There were specific facts pertinent to the Zelman case that the appellate panel deemed relevant to the incentive argument. Challengers pointed out that most of the schools involved in the voucher program (46 of 56, accounting for 96 percent of the students) were religious, leaving few secular options available for participating families. The appeals court accepted this argument even though the Supreme Court had acknowledged similar circumstances in 1983 (Mueller v. Allen) when it upheld a Minnesota program that gave a tax deduction to parents for tuition and other education expenses. While recognizing that most of the deductions were used for parochial school tuition, the Mueller Court found that because parents could deduct expenses for public, private, or religious schools, the deduction was neutral toward religion.

In Zelman, the Ohio attorney general further pointed out that schools participating in the Cleveland voucher program represent only a small portion of the range of choices available outside the regular public schools. In 1999 Cleveland had 23 magnet schools with 13,000 students in attendance and eight charter schools with 1,600 students in attendance, compared with the 3,800 in the voucher program. The two-person majority refused to accept the range-of-choice argument, however, because the magnet and the charter programs were not enacted under the auspices of the voucher law that was being reviewed. Legally speaking, these other choices did not exist. Under the rules of evidence defined by these judges, the same court that could peek into the minds of legislators to determine intent could not recognize hard evidence crucial to determining whether dissatisfied parents at regular public schools had choices beyond religious schools.

Both sides introduced evidence concerning the amount of the voucher. The state of Ohio, in an effort to rebut the incentive argument, explained that the amount ($2,250 maximum) was small in comparison with the per-pupil spending in regular public ($7,746), magnet ($7,746), and charter schools ($4,518). Looking at things strictly from a resource perspective, parents had a disincentive to send their children to schools participating in the voucher program. Opponents argued that since parochial schools were the only nonpublic schools with tuition rates low enough to be covered by the voucher, the program was indeed an incentive to attend these schools. To the extent that the latter argument has merit, the remedy seems obvious: amend the voucher law to make the amount higher, let's say equal to the per capita amount spent in regular public schools. This would have to be done by the Ohio legislature.

There would be a delicious irony to such a resolution. It would certainly appear equitable, in light of the tortured history of school-finance litigation in Ohio. Carried to its logical conclusion, such a resolution might also add charter schools to the mix of institutions eligible for equal funding. Opponents of choice who raise the funding issue as a means of striking down vouchers would not welcome such a remedy, however. It is nor financial equity they seek, but the defeat of the voucher law. And school-finance reformers who have spent oodles of time and money in litigation are not likely to receive such a remedy kindly either. For the most part, their sense of fairness applies only to children in public schools.

What Will the Court Do?

Of course, predicting what the Supreme Court is going to do in a particular case can be more difficult than calling the World Series in the middle of May. We begin with certain general expectations based on past performance, all the while knowing that anything is possible. At least baseball has winners and losers; legal contests are more complicated. To say that the Supreme Court will rule one way or another oversimplifies the process of judicial decisionmaking. Crafted to accommodate the philosophies and styles of the individual justices needed to assemble a majority, legal opinions are written with great nuance. Their outcome depends on what question or questions the judges agree to address, and with what level of specificity. As a rule, the Court tends toward more narrow rulings, with deference paid to precedent. But precedents are rarely consistent; and First Amendment case law is among the most inconsonant.

The First Amendment jurisprudence that has unfolded over the past two decades, however, seems to favor the program in question. In the aforementioned Mueller case, the Court approved a tuition--tax deduction program in Minnesota.

More recently, the Rehnquist Court has overturned longstanding precedents in order to allow public school teachers to provide remedial services to children on the premises of religious schools (Agostini v. Felton, 1997) and parochial schools to receive direct aid in the form of computers and other instructional equipment (Mitchell v. Helms, 2000). In 1998, it refused to hear a challenge to a voucher program in Milwaukee that was approved by the Wisconsin Supreme Court.

Still, there is a distinct, though improbable, possibility that the Supreme Court will rule against the voucher program on fundamental First Amendment grounds. This is improbable because since 1986 (Witters v. Washington) the Court has adopted guidelines that allow indirect aid to parochial schools as long as the aid is appropriated neutrally and results from independent decisions by parents who select those schools. These more permissive guidelines were drafted in a concurring opinion by Justice Lewis F. Powell Jr., the author of Nyquist. The original plaintiffs in Zelman argued that parental independence is compromised by an administrative process that sends the voucher check directly to a religious school to be signed by the parent. Again the solution to this problem, if it is really a problem, is rather easy: just send the check to the parent, and let the parent pay the school. The existing procedure was implemented for the sake of administrative expediency. Either way, the money reaches the school becaus e a parent chose that school for her child. But in some courts procedure trumps principle. Legal reasoning would require that the voucher program, operating as it does, be struck down.

Let's imagine, for a moment, what would happen if it were. In Ohio the issue would be turned over to the state legislature, and once again political irony would be the order of the day. The same people who raised procedure as a point of contention in court would do everything possible to preserve the procedure in the law in order to maintain that the program is void. If choice supporters succeeded in changing the procedure, the issue of constitutionality would be resolved, Realistically speaking, however, the fate of the Cleveland program is unlikely to turn on the payment question. There is a bigger question.

While unlikely, it is conceivable that a majority of the justices hearing Zelman could agree with the argument that providing unrestricted aid to children attending sectarian schools allows the state to endorse, subsidize, and advance religion. The impact of this ruling would be substantial, Not only would it terminate the voucher program for 4,000 children in Cleveland; it would open to challenge the Milwaukee program through which 10,000 low-income students receive up to $5,553 in tuition relief for private and religious schools. Also likely to fall would be the Florida A+ program, which provides up to $3,472 for children who attend chronically failing public schools. It enrolls only a few dozen students in Pensacola, but has the potential to expand statewide. One might say that for all practical purposes, vouchers would be dead. But the same is not necessarily true of school choice.

If the Court strikes down the Ohio law, and by implication those in Wisconsin and Florida, choice supporters will probably pin their hopes on funding schemes involving tax relief, like the tax-deduction plan in Minnesota and less ambitious programs in Illinois and Iowa. By providing a more direct benefit to families, tax-relief programs add a level of separation between the state and the school and are generally deemed to be less vulnerable to legal challenge. Activists will also focus their energies on tax-relief programs for third parties that provide scholarships for poor children to attend religious and private schools. Such programs already exist in Arizona, Florida, and Pennsylvania. In fact, more children (60,000) participate in privately funded voucher programs than in publicly funded programs. Private initiatives such as the Children's Scholarship Fund and Children First America are likely to grow no matter what the outcome of the Ohio case.

It's Constitutional, but ...

Suppose the Supreme Court upholds the Cleveland program. Again the impact of the decision depends on the specific questions the majority chooses to address. Will it deem the distinction between direct and indirect aid significant? Will it finally dispose of the legal quibbling over form versus substance regarding the payment procedure? Will it adopt the broader standard of neutrality suggested by justice Clarence Thomas in Mitchell v. Helms? Under this criterion, aid is permissible when it "is offered to a broad range of groups or persons without regard to religion" and "results from the genuinely independent and private choices of individual parents." Or will it decide the case on more narrow grounds? It is quite possible for the case to result in a split majority, as in Helms, where four justices accepted the neutrality standard, while Justices Sandra Day O'Connor and Stephen Breyer permitted the aid on the basis of more narrowly defined criteria, Either way there is bound to be another round of litigation.

One possible sire for a new legal battle is Maine. Maine has a 130-year-old voucher law that once allowed children living in towns without high schools to attend private or parochial schools with state support. In 1981 the law was changed to exclude religious schools. The shift in policy was upheld by the Maine Supreme Court on First Amendment grounds in 1999 and subsequently confirmed by a federal appellate court, with the Supreme Court refusing to hear an appeal. If the U.S. Supreme Court approves the Cleveland program, choice supporters in Maine could have their case reheard to reinstate the eligibility of religious schools.

It is no accident that most of the recent legal challenges to existing voucher laws began in the state courts, Opponents have based their litigation strategies on "Blame Amendment" provisions in state constitutions that set a more rigid standard for church-state separation than that enshrined in the First Amendment--at least as the U.S. Supreme Court has interpreted it over the past two decades. Blame amendments, a remnant of the 19th-century battles over public aid to parochial schools, are named for James G. Blame, a presidential aspirant and congressman from Maine, who in 1875 tried unsuccessfully to enact a federal constitutional amendment prohibiting such aid. Although Blame failed to assemble the supermajority of votes needed to pass a federal constitutional amendment, his proposal became a model for state legislators who shared his separationist and anti-Catholic sentiments, then widespread in the nation, By the end of the 19th century, 29 states had written similar amendments into their constitutions . These provisions, as well as others that were added later, could have a major impact on the future viability of voucher programs--but nor without opening the door to yet another wave of litigation. Although opponents lost their challenges in the state courts of Ohio and Wisconsin, they prevailed in Vermont, which, like Maine, has a century-old voucher law that disqualified religious schools from participation in 1995. On appeal the Supreme Court refused to review that case also.

The specific exclusion of religious schools from state voucher programs, as in Vermont, raises federal questions beyond the Establishment Clause. Choice supporters claim that such discriminatory exclusion violates the Fourteenth Amendment's equal protection clause and the First Amendment's free exercise clause. Since the state constitutional issue has already been addressed by the Ohio Supreme Court, there is no reason to expect the question to arise in Zelman. But if the U.S. Supreme Court determines that vouchers are allowed under the Establishment Clause, it is only a matter of time before the Court will be asked to settle these larger questions. The same Court that set guidelines for permissible aid in Witters also left the door open for states to set their own standards for church-state separation. While adopting a more accommodating approach to the First Amendment than its predecessor, the Rehnquist Court has also shown a strong sympathy for state prerogatives on matters of federalism. Inevitably, vouc her proponents will insist that the constitutional rights secured by a victory in Zelman would prove hollow if the states were permitted to undermine choice on their own. What the Court does to resolve the inevitable clash between these claims and its notion of federalism remains to be seen.

Back to Politics

Even if the Supreme Court were to resolve the federal and state legal questions in favor of vouchers, it would only be setting the stage for the next arena of conflict. Courts only review laws; they do not make them. The most generous judicial interpretation of the voucher question could at most require that states not exclude religious schools from choice programs that are open to other private schools. States would be allowed to continue restricting public funding to government-run public schools, as most do now. Battles over school vouchers have already taken place in more than half the state legislatures, and they will go on.

No doubt a ruling in their favor from the Supreme Court would reinvigorate voucher proponents. It might motivate President George W. Bush--whose solicitor general gave oral argument in Zelman in support of the Cleveland program--to revisit his controversial proposal for federal vouchers. (He has already endorsed tax credits in his current budget proposal.) But the more significant political battles will be fought in the state legislatures, where most education policy is made. Once again the structure of the alliances that form will be filled with political irony. As was so in Cleveland and Milwaukee, the most consistent advocates for school vouchers in America are low-income black and Hispanic parents who live in central cities where the public schools have a history of poor performance. Some black leaders-- such as the Reverend Floyd Flake, a former congressman from New York; city councilman (and mayoral candidate) Cory Booker of Newark; and Howard Fuller of the Black Alliance for Educational Options--see c hoice as a civil-rights issue, a mechanism to provide poor families with the same opportunities enjoyed by the middle class--indeed, as a fulfillment of the promise articulated in Brown v. Board of Education: to make education available to all "on equal terms."

However, the majority of black and Hispanic political leaders oppose vouchers. Their position is supported by mainline organizations like the NAACP, the American Civil Liberties Union, and the National Urban League, all of which have a long history of advocacy on behalf of disadvantaged populations. While reaching out to fellow Democrats, choice proponents in the minority community have sought to build alliances with Republicans and with libertarian organizations like the Institute for Justice, which has represented poor parents in every voucher case that has come before the courts in the past dozen years, including Zelman. These are not always easy partnerships. People on the left side of the political spectrum favor targeted choice aimed at the poor, while those on the right prefer universal vouchers made available to all parents. Nonetheless, these alliances have managed to move choice along in places like Wisconsin, Ohio, and Florida.

The Democratic Party has its own tensions to resolve under an ideological tent that tries to accommodate both old-line labor unions, which instinctively oppose school choice, and a younger generation of black and Hispanic activists who demand it. Party leaders have failed to respond adequately to the question of why poor minority parents should be required to send their children to failing public schools when luminaries like Bill Clinton, Al Gore, and Ted Kennedy saw fit to send their own children to private schools,

To a large extent, the choice cat is already out of the political bag. The development of voucher programs in Wisconsin, Ohio, and Florida has fostered a serious national debate over a question that once could be discussed only on the outer margins of politics. More important, the existence of private voucher programs in nearly every state has introduced poor parents to the idea that there is an alternative to failing inner-city schools, and it is winning more converts every day. That being said, polls indicate that the nation as a whole is at best ambivalent about using tax money to send children to religious schools. And voucher proposals are consistently rejected in popular referendums, as in Michigan and California during the 2000 election, where vouchers were defeated by a 2-1 margin. Furthermore, teacher unions that vehemently oppose vouchers are a powerful force within most state legislatures, almost assuring rejection in most places. Yes, the political debate is very much alive, but it remains tilted against choice.

When the Court Speaks

What the Supreme Court says in Zelman could have a marked effect in structuring the terms of the political debate--not just in determining who wins the legal argument, but in explaining its broader implications in a way that only the Supreme Court can. In Zelman, the Court is being asked to weigh two competing political values: strict church-state separation on the one hand and the right of poor families to choose the education their children receive on the other. If the majority serdes on a strict interpretation of the Establishment Clause, it will add an air of legitimacy to an already dominant political coalition that opposes school vouchers and other forms of private-school choice. It will raise the wall of separation between church and state to a level in has not seen since the Burger Court.

The political impact of the court's decision could be even greater if in approves the Cleveland program. At a minimum in would lift the constitutional cover from those political actors who hide behind the First Amendment as a reason to oppose choice. It would lay bare a fundamental struggle over who controls the education of children, the parents or the providers. It also might help to reverse the prevailing political dynamic. Depending on the wording of the opinion, the decision could add a moral dimension to the pleas of poor parents who want educational choices similar to those enjoyed by the middle class. It is difficult to overestimate the power of moral argument in American politics. History has shown it to be an essential ingredient for reversing dominant political patterns in response to demands by weaker parties in pursuit of social justice. The Court provided such a platform in the Brown decision in 1954. While the immediate impact of the ruling was to prohibit dejure school segregation, Brown breat hed life into the political struggle that, against all political odds, brought about a revolution in public policy, affecting every branch of government at the federal, state, and local levels.

Whether the Supreme Court perceives school choice as a fulfillment of the promise articulated in Brown remains to be seen. Judicial majorities do tend toward more narrow rulings, except of course when they have something more significant to say beyond the particular legal questions set before them. This may be one of those extraordinary times. If so, such an opinion would be especially compelling coming from the pen of Justice Thomas, the lone black member of the Court, who has written for the majority in a number of important cases involving religion and education. In would remind the nation that there is more than one voice in the black community, each driven by a vision of educational equality, following different paths to get there.

But even a more narrow decision may prove to be pathbreaking. After all, Brown itself was a cautious decision, declaring unconstitutional only segregation in schools, not segregation at train stations, parks, or other public facilities. And Brown only required the states to implement school desegregation" with all deliberate speed," something less than a clarion call for immediately rectifying the effects of racial injustice. Yet 50 years later, the spirit of Brown is vastly more important than its wording. So it may be with Zelman.

Characteristics of Voucher Programs for Low-Income Families

A mix of privately and publicly funded voucher programs has spread
across the nation, mainly in urban areas.

City or        Sponsor      Religious  Grades    First    Initial
State                       Schools              School   Enrollment
                            Included?            Year


Milwaukee      State of WI  Yes        preK-12   1990-91  341
Indianapolis   ECCT (a)     Yes        K-8       1991-92  746
Milwaukee      PAVE (b)     Yes        K-12      1992-93  2,089

San Antonio    CEO (c)      Yes        1-8       1992-93  930
Wash., D.C.    WSF (d)      Yes        K-12 (h)  1993-94  30

Cleveland      State of OH  Yes        K-8       1996-97  1,996
New York City  SCSF (e)     Yes        1-5       1997-98  1,200
Dayton         PACE (f)     Yes        K-12      1998-99  542

Florida        State of FL  Yes        K-12      1999-00  146
Charlotte      CSF (g)      Yes        2-8       1999-00  388
National       CSF (g)      Yes        K-12 (i)  1997-98  1,000

City or        2000-01     Number of  Maximum      Selection
State          Enrollment  Schools    Payment in   Method
                           2000-01    2000-01
                                      Dollars

Milwaukee      9,638       103        5,326        Lottery
Indianapolis   2,387       82         1,000        First-come
Milwaukee      819         52         1,000/elem.  First-come
                                      1,500/high
San Antonio    1,319       62         4,000        First-come
Wash., D.C.    1,300       116        2,000/elem   Lottery
                                      3,000/high
Cleveland      3,900       67         2,500        Lottery
New York City  1,650       216        1,400        Lottery
Dayton         680         42         1,785/elem.  Lottery
                                      2,300/high
Florida        52          2          3,500        Lottery
Charlotte      438         52         1,700        Lottery
National       40,000      7,000      1,700        Lottery

(a)Educational Choice Charitable Trust

(b)Partners Advancing Values in Education

(c)Children's Educational Opportunity

(d)Washington Scholarship Fund, Incorporated

(e)School Choice Scholarships Foundation

(f)Parents Advancing Choice in Education

(g)Children's Scholarship Fund.

Note: The program was initially organized in Washington, D.C., and was
expanded nationally for the 1990-00 academic year.

(h)Students must be in grades K through 8 to begin the Washington
Program.

(i)Once awarded a scholarship, all students are guaranteed continued
assistance for three additional years. However, the first year's
scholarship must be awarded while the student is enrolled in grades K
through 8.

(j)Program enrollment in Indianapolis is supplemented with Periodic
lotteries.

SOURCE: William F. Howell and Paul E. Peterson with Patrick Wolf and
David Campbell, The Education Gap (Brookings, 2002)

RELATED ARTICLE: Brief History of Cleveland's Voucher Program

JUNE 28, 1995

The Cleveland Scholarship and Tutoring Program is enacted by the Ohio legislature.

JANUARY 1996

The American Federation of Teachers files a lawsuit challenging the program's constitutionality.

JANUARY 1996

Lottery drawing held for 1,500 scholarships.

AUGUST 1996

JULY 1996

An Ohio state judge rules that the program violates neither the state nor federal constitutions. Opponents appeal.

1,994 students enter the school of their choice using scholarships for the 1996-97 school year.

AUGUST 1997

MAY 1997

An Ohio state appeals court holds that including religious schools in the voucher program violates both the state and federal constitutions. Supporters of vouchers appeal; the program is allowed to continue while case is before the Ohio Supreme Court.

Ohio Supreme Court holds that the program violates the state constitution due to a procedural flaw in how the program was enacted. The Court states that the program does not violate the federal Establishment Clause.

Number of students participating in the program rises to 2,938.

MAY 27, 1999

AUGUST 1998

Participation rises to 3,774 students.

JUNE 29, 1999

The Ohio General Assembly reenacts the program in a constitutionally sound way.

JULY 20, 1999

The ACLU, People for the American Way, and the national teacher unions file suit in federal court, alleging that the program violates the separation of church and state.

AUG. 24,1999

Federal district court judge Solomon Oliver Jr. grants a temporary injunction, shutting down the program pending a full hearing.

AUG. 27, 1999

Judge Oliver alters injunction. He allows only previously enrolled scholarship students to return to school. But this leaves 817 new students shut out. Defendants appeal.

OCT. 19, 1999

With no response from the U.S. Court of Appeals for the 6th Circuit, defendants appeal to the U.S. Supreme Court.

NOV. 5, 1999

In a 5-4 decision, the U.S. Supreme Court overrules Judge Oliver's injunction and restores scholarship funding to 817 children.

DEC. 20, 1999

Judge Oliver rules the program unconstitutional and stays his decision, allowing children to remain in school while defendants appeal to the 6th Circuit.

DEC. 11, 2000

In a 2-1 decision, the federal appeals court rules against the program. The decision contains language suggesting legislative remedies that will satisfy the court.

MAY 2001

The state of Ohio appeals the decision to the U.S. Supreme Court. The program continues while the appeal is pending.

SEPT. 2001

U.S. Supreme Court agrees to hear the case.

FEB. 20, 2002

SOURCES: School Choice Committee; Center for Education Reform

U.S. Supreme Court hears oral arguments on the constitutionality of the Cleveland Scholarship and Tutoring Program.

The supreme school board.

Paul E. Peterson

The waiting line to hear oral argument before the U.S. Supreme Court formed the night before February 20. Anyone joining after 5 A.M. never got in--except those given special seating including such notables as Senator Edward Kennedy, Health and Human Services secretary Tommy Thompson, and former White House counsel C. Boyden Gray. It was well worth the wait. Persistent questioning, passionate debate, direct self-contradictions, an electric atmosphere--all were there. As the 80-minute conversation came to an end, a pro-voucher resolution seemed to have just barely emerged, the outcome turning as much on educational facts as constitutional questions.

The Court seemed as much a national school board as an interpreter of the Constitution's Establishment Clause. Questions seldom focused on past jurisprudence--probably because earlier decisions have constructed a wall of separation between church and state as serpentine as the one Thomas Jefferson designed for the university of Virginia's campus. Instead the day's focus was on vouchers, charter schools, and the woeful state of public education in Cleveland. The justices seemed to realize that they were discussing the future of low-income inner city children, not just fine points of legal doctrine.

It was Justice David Souter who first posed the central question to Ohio assistant attorney general Judith French: "Isn't it true that something like 99 percent of the students who were receiving these vouchers are in religious schools?" Such restricted choice was very different from the "choice from [among] the great universe of colleges and universities," where federal aid to religious institutions has been generally regarded as constitutional.

To some of the justices, the choices in Cleveland appeared even more restrictive than the 99 percent figure suggests. in their eyes, the high performance of parochial schools relative to the public schools was damning at least from a constitutional perspective. "The better the parochial school," said Justice Stephen Breyer, "the less the freedom of choice.... If it were my children and I saw these comparisons, I'd say, send them to the parochial school... That's not my religion, but it's very important my child get the best education, and therefore I would be feeling I had to send them there, if that's what I want."

Yet just as it seemed the Court was about to conclude that parochial schools are so good that school choice in Cleveland is meaningless, charter schools--known as community schools in Ohio--were called on to save the pro-voucher argument. In the words of Justice Antonin Scalia, "I assume Justice Breyer could send his child to one of the community schools, which [are] entirely nonsectarian. ...[These] schools get more money than the sectarian schools." Scalia also noted that the more established and better funded voucher program in Milwaukee has been attracting secular schools in steadily increasing numbers.

When it came time for the anti-voucher forces to make their defense, Robert Chanin of the National Education Association stepped forward. (Curiously, when veteran reporter Linda Greenhouse's story appeared in the New York Times the next day, it failed to state Chanin's NEA connections, identifying him only as the attorney for the Cleveland residents who had challenged the program.)

Chanin's most difficult task was to show that the community schools in Cleveland were irrelevant because, in Chanin's view the justices were legally required to look not at the entire situation in Cleveland but only at the specific statute creating the voucher program. When the attorney restricted his legal vision in this way, he was able to argue, "It is a mathematical certainty that almost all of the [voucher] students end up going to religious schools."

No sooner were these words enunciated than the most dramatic moment of the morning arrived--a clear, decisive intervention by Justice Sandra Day O'Connor. It was not just what she said--though this was powerful enough--but the fact that O'Connor is expected to cast the decisive vote in this case, as in so many others. For months, even years, it has been evident that the outcome could easily turn on her vote--and the scope of the opinion might well depend on her views. Justices Souter, Ruth Bader Ginsburg, and John Paul Stevens were unlikely to find the law constitutional and Breyer may have tipped his hand when he observed, rather whimsically, that parochial schools may become increasingly unconstitutional the more they outshine their public-school counterparts. Meanwhile, pro-voucher groups are taking heart from the comments--as well as previous opinions--of Justices Scalia, Clarence Thomas, Anthony Kennedy and Chief Justice William Rehnquist.

The justices themselves were keenly aware of O'Connor's decisive position. Both sides made subtle appeals to her. Said Souter: "What's bothering me... and, I suspect, O'Connor, too," is that the law must be not only neutral on its face but also in its effect, and "at the end of the day, the effect is a massive amount of money [going] into religious schools.... That is the sticking point here."

O'Connor had indicated that the voucher program might resemble a New York State tuition-reimbursement program struck down in the 1973 Nyquist case. Though this observation must have given hope to the NEA attorney, when he began insisting on mathematical certainties, he encountered tough, if patient, resistance: "Well, wait just a minute," said O'Connor. "Do we not have to look at all of the choices open to the students, the community schools, the magnet schools, et cetera?" Chanin did his best: One must legally ignore all the other schools in Cleveland because "this court has always been program-specific in its financial-aid cases."

"But I'm not sure that's proper," replied O'Connor. "That's what I'm asking you. Why should we not look at all of the options open to the parents?" Doing so, Chanin argued, "mixed together programs that are quite qualitatively different in both function and purpose." But persisted O'Connor "is it not true that parents can choose to have their children educated in a community school and if they do that school gets more money from the State than if they had chosen the religious school? If anything it's skewed against the religious schools." When Chanin iterated. "We now have this year 99.4 percent of the students going to religious schools," Justice Kennedy making his own appeal to O'Connor dropped the acid observation: "So far, you're doing a very good job of not answering Justice O'Connor's question." Laughter temporarily broke the tension in the air.

But within minutes Chanin was in trouble again: "Supposing there are 10 schools out there, 10 private schools, nine of which are nonreligious and one of which is religious" imagined Chief Justice Rehnquist. "Is that...consistent with the Establishment Clause?" Replied the NEA attorney. "On that's clearly unconstitutional Your Honor." Pressing hard Rehnquist observed: "The interesting thing ... your view is if any one [religious] school gets the money, it's unconstitutional?" "No no your honor," replied the hapless attorney. "Oh I thought you said yes," said the Chief Justice. "No I'm sorry if I -- I did not," Chanin replied. 'On I may have but I didn't mean to."

Though the drama then began to subside the Supreme School Board still had educational points to make. Late in the morning Justice Kennedy asked: "Is it unconstitutional for [the State of Ohio] to ... have a structure in which different school systems different curriculums, curriculums that do not inflict terminal boredom on students can begin to flourish? And ... you say they cannot do it?."

Chanin could only reply, "There is no evidence that competition improves the lot for the 96 percent of the students who remain in the troubled Cleveland public school system with less resources and even worse problems." Even this did not remain unchallenged. "The studies that I'm familiar with say that the inner-city parochial schools which spend much less per child on education do a better job than the public schools that spend much more," said Scalia adding "So I just don't think it follows that ... more money [will] solve the difficulty that the people of Cleveland found with their public schools."

When told that the only evidence about parochial schools was anecdotal Scalia added, "On I don't think it's anecdotal at all. I mean there are extensive studies that show the parochial schools do a better job."

Still questions posed in oral argument do not necessarily translate into opinions on judgment day. But if the tenor of the discussion on February 20 is an indicator of what is to come then the future of school choice will take a new twist. If Cleveland's charter schools are the key to making vouchers constitutional must future voucher schemes also include a charter component? And must the vouchers be large enough that as in Milwaukee they invite increasing participation by secular schools? If vouchers are found constitutional only if charters are available and secular private schools open themselves to voucher recipients the result could profoundly affect the future of school choice in ways neither side anticipated. The Court may turn out to be the Supreme School Board in deed as well as in the words if voiced in the oral argument.

Paul E. Peterson is the editor-in-chief of Education Next and co-author of The Education Cap (Brookings, 2002).

Joseph P. Viteritti is a research professor of public policy at New York University and the author of Choosing Equality: School Choice, the Constitution, and Civil Society (Brookings).