On to the State Legislatures...

Robert Alt

June 1, 2002

For 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. (Full text available here.)

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 non-religious students and schools to participate on an equal basis. This key part of the ruling—a ruling upholding a program in which 96% 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 web site quotes Mr. Neas as saying he they will fight school choice initiatives state-by-state. Of course, Mr. Neas is not the only modern-day George Wallace standing firm in the school house 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.

Robert Alt is an Adjunct Fellow of the John M. Ashbrook Center for Public Affairs at Ashland University, Ohio.