In what school choice advocates say is the first and most meaningful test of private vouchers, the Supreme Court on Thursday ruled 5-4 in favor of a Cleveland program that affords public dollars for poor children to attend parochial schools.
The decision was one of two important education-related rulings. In another 5-4 decision, the justices granted public schools a wide berth in administering random drug tests to students who participate in extracurricular activities, even if those students don’t give school administrators cause for concern.
In the voucher decision, the high court overturned a U.S. appeals court ruling that struck down the Cleveland voucher program because over 95 percent of the students who were granted vouchers decided to attend a local Catholic school.
“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.
Supporters of school vouchers celebrated the ruling.
“I’m excited, I’m pleased, I’m happy — Thank god,” remarked David Brennan, the attorney who designed the program and subsequently wrote the book The Cleveland Voucher Case.
He said this was the case to finally “legitimize” the much maligned voucher plan for failing school districts. He said the court's ruling makes it safer for cities and states to experiment with vouchers.
“I think it removes a substantial holding effect on how legislatures will now look at the issue,” he said.
But critics, who have contended that voucher programs violate separation of church and state, said the vouchers in Cleveland will continue to drain much-needed public funds away from the failing schools there.
“Vouchers are bad education policy, and we will continue to fight efforts to introduce them into public education,” said Sandra Feldman, president of the American Federation of Teachers.
“Our nation’s commitment to public education is longstanding, built upon the principle of open and equal access for all our children,” said Feldman. “This decision undercuts that principle and commitment.”
The Ohio State Supreme Court and a U.S. Circuit Court of Appeals agreed with the anti-voucher arguments. But the U.S. Supreme Court, in previous actions, had appeared to be warming up for Thursday's decision.
In 1998, the court refused to review a Wisconsin State Supreme Court ruling in favor of the school voucher program in Milwaukee. Because the justices did not hear the case, the program was automatically held up as constitutional.
On Thursday, the divided court ruled that the Cleveland program assures that students are given a choice on where they will spend the money given to them by the state, and that they are not forced to attend only religious schools, as opponents contended.
According to Brennan, almost two-thirds of the 60 schools operating within the Cleveland program are parochial schools, but that is because non-religious, private schools have been having a hard time funding the establishment of new schools. The endeavor is expensive, and the Catholic Schools already had the infrastructure in place to begin taking vouchers when the program began in 1996.
Since that time, children in the program have tested statistically higher on science and language performance evaluations than their peers outside of the program, according to The Indiana Center for Evaluation, which was hired by Ohio to monitor the program.
Brennan said he hoped that funding levels for new schools will rise now that the court has given its blessing to vouchers. “I think more schools will participate that hadn’t before,” he said.
But groups like the Anti-Defamation League said they will continue to oppose vouchers on policy and state constitutional grounds.
Calling Thursday’s decision “a step backwards for religious liberty,” ADL National Chairman Glen A. Tobias and National Director Abraham H. Foxman said in a joint statement:
“We view this decision as extremely limited in its impact. While voucher supporters were hoping for a green light for the use of vouchers in a wide range of contexts, that is not what this decision does,” they said.
Michael Pons, a spokesman for the National Education Association, said vouchers are not as popular as their supporters like to think, as evidenced by two failed statewide referendums that would have approved vouchers in California and Michigan in 2001.
"There doesn’t seem to be any pent-up demand for vouchers, so we will continue to work with parents and others to bring upon improvements in the public schools, that’s our first priority," he said.
But the pro-voucher Center for Education Reform has long held that teachers unions have been a powerful force in defeating referendums and influencing policy that would allow for school choice programs in their districts. According to Jeanne Allen, president of the Washington D.C. organization, there is an active grass-roots movement out there just waiting to be energized by news like they've had today.
“The door is now open for other states to follow suit,” she said. “There is no longer a constitutional cloud over whether or not policy makers can establish education programs that allow parents to choose the school that best fits their child’s needs.”
President Bush, a staunch advocate of school vouchers, 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.
The Associated Press contributed to this report.