Posted 7:47 p.m. Feb. 26

(U-WIRE) WASHINGTON – The constitutionality of school vouchers was debated in the Supreme Court last week in a landmark case centering on the separation of church and state.

The case, Zelman v. Simmons-Harris, concerns a 6-year-old-program in Cleveland that distributes $2,250 a year to children from low-income families and allows them to switch to private, religious or suburban schools from their current public school. Of the 56 schools involved in the program, 46 are religious.

The case rests upon the “true private choice” of the parent utilizing the tuition voucher.

Plaintiffs in the case and voucher opponents argue the majority of taxes going to religious schools implicitly violates separation of church and state. Those in favor of school vouchers say parents should have the right to choose any private schools for their children despite low incomes.

The central focus of the Supreme Court oral arguments last week concerned the meaning of the First Amendment’s establishment clause: “Congress shall make no law respecting an establishment of religion.”

For the last 30 years, the High Court has used a three-pronged test known as the Lemon test, after the 1971 case Lemon v. Kurtzman, to uphold the constitutionality of programs under the First Amendment. The test says any statute enacted must:
* have a secular purpose;

* neither advance nor inhibit religion;

* and avoid excessive entanglement of government religion.

A U.S. appeals court used the Lemon test to find the Cleveland voucher system unconstitutional in December 2000, reversing a previous decision.

Justice Sandra Day O’Connor cited the 1973 Supreme Court decision in Committee for Public Education v. Nyquist during oral arguments. That case struck down a New York tuition assistance program in which majority of the assistance went to religious schools.

O’Connor asked Judith L. French, attorney general of Ohio, if the Nyquist decision should be repealed in order to keep the Cleveland voucher program, to which French replied the Cleveland voucher system was different from the case in New York because it afforded parents the choice to keep students in the public school system.

Robert Chanin, lawyer for the plaintiff, said, “The Ohio voucher program is so heavily skewed towards religion as to make it inevitable that, no matter what ‘private choice’ individual voucher program parents make, a significant portion of the aid expended under the program as a whole will end up flowing to religious education.”

Advocates for the voucher system like the U.S. Conference of Catholic Bishops say the money is distributed to parents, who then have the choice to enroll their children in a fitting academic institution and thus keeps a safe distance between church and state.

Zelman v. Simmons-Harris will have an effect on similar voucher programs in Wisconsin and Florida and also will challenge President George W. Bush’s pro-faith-based agenda.

The president made education reform and school vouchers a centerpiece of his 2000 election campaign, and if found to be constitutional, more programs and faith-based initiatives are likely to spring up across the country.

The National Jewish Commission on Law and Public Affairs and former New York City Mayor Rudolph Giuliani are a few of the 30 organizations that have filed Amicus Curiae (friend of the court) briefs in defense of the Cleveland program.

Some organizations opposed to the program include the NAACP Legal Defense and Educational Fund, the American Jewish Committee and the Ohio School Boards Association, reports the Christian Science Monitor.

Legal analysts believe the outcome of the case will be as influential as that of Brown v. the Board of Education, which desegregated school during the 1950s.

Crowds of people picketed outside the Supreme Court as oral arguments continued inside the court for 80 minutes, a departure from the court’s regular 60-minute sessions.

The Court likely will issue a decision on the case in June.