The 5-4 ruling led by the court's conservative majority further erodes the figurative wall separating church and state and clears a constitutional cloud from school vouchers, an education idea dear to political conservatives and championed by President Bush. Opponents call vouchers a fraud that will only siphon tax money from struggling public schools.
The court 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 schools in the nation. The court majority said the program does not put the government in the unconstitutional position of sponsoring religious indoctrination, even though more than 95 percent of the vouchers are used to subsidize Catholic or other religious schooling.
Bush has been a staunch advocate of school vouchers, and emphasized the issue in his campaign for the White House. Congress last year shelved that effort. But Bush resurrected the idea, proposing in his 2003 budget 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.
In another schools case Thursday, the court approved random drug tests for many public high school students, saying anti-drug concerns outweigh an individual's right to privacy. That vote also was 5-4.
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.
The court majority 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 dissenting justices said the Cleveland program goes too far toward state-sponsored religion. 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.
Thursday's ruling continues the conservative court majority's pattern of mandating equal treatment for religious organizations or ideas. In general, the court has ruled that once a public-funded benefit or forum is available to secular users, it cannot be denied to religious users merely because they are religious. Using that rationale, the court has previously opened schoolhouse doors to a Bible club, required school funding for a religious magazine and allowed government aid for computers and tutoring in parochial schools.
In Ohio on Thursday, Elaine Barclay, who has two daughters attending a Baptist school under the voucher arrangement, said, "It's an excellent program. We were praying they would rule for the vouchers." Lori Kaloger, who has three children attending a Catholic school with vouchers, said, "This is going to be a whole new thing for people around the country. It gives people choice to spend their tax funds in a school where they can get a good education." Supporters of vouchers prefer the term "school choice," and say the arrangement gives parents power to reject chaotic and dangerous public schools and sluggish bureaucracies.
By endorsing the Cleveland program, the court drew a map for numerous states and cities awaiting a ruling before seriously considering their own versions. The decision probably also helps two other tax-supported voucher programs, in Milwaukee and Florida, but it was not immediately clear if those meet all the tests the court majority set out.
The debate will probably shift now to state legislatures. Teachers' unions lead the opposition to vouchers, which they say skim the most motivated students and parents from public schools, and rob those schools of much-needed money.
The Cleveland program, set up by the Ohio legislature, provides $2,250 tuition assistance vouchers to about 4,000 of the district's 57,000 elementary-age students. The money may be used at any of 51 participating schools, all but nine of which are religious. Most are Catholic. The voucher amounts often nearly cover the cost of a church-subsidized education, but do not begin to cover normal tuition at many secular academies. The voucher program followed a court-ordered state takeover of the city schools, where roughly 10 percent of ninth graders met standards for their grade and the graduation rate was 40 percent.
A federal appeals court had struck down the Cleveland program as a violation of the Constitution's First Amendment. The amendment says government may not establish or promote religion, but also must protect people's right to practice their religion. The Supreme Court last ruled on a similar question in 1973. Then, a more liberal court struck down a New York tuition assistance program.