WASHINGTON — The U.S. Supreme Court’s long-awaited decision on the constitutionality of school vouchers is expected this term, with the high court’s agreement to hear three related cases.
The ramifications of a Supreme Court decision could extend beyond education to the government financing of other activities, including charitable choice.
School vouchers were an integral part of the Bush administration’s original education plan, but were abandoned after winning little support in Congress.
Many Jewish groups are opposed to vouchers on the grounds that they violate the separation of church and state and drain money from the public school system. Orthodox groups, however, believe government support to religious schools is acceptable.
But even if vouchers are deemed constitutional, state legislatures will have a final say in whether to allocate money to local voucher programs.
The voucher decision, expected by June, could have a major effect on charitable choice, the expansion of government funding to faith-based groups to provide social services.
The issues are seen as similar because both involve public funding for religious-based programs.
The policy, which had been a top priority in the early months of the Bush administration and is still favored, remains one of the most divisive issues in the Jewish community.
“Charitable choice will turn on this,” said Marc Stern, co-director of the American Jewish Congress’ legal department. “If vouchers are upheld, it will be hard to argue that charitable choice is unconstitutional.”
Many Jewish groups fear that an expanded partnership between government and faith-based Jewish organizations could break down the constitutional walls separating church and state and infringe on religious liberties.
Orthodox groups favor allowing religious institutions to play a greater role in providing social services.
The high court, often controlled by a 5-4 conservative majority, is closely divided on church-state separation issues.
The justices had several opportunities to rule on the constitutionality of vouchers in the past few years, but chose to sidestep the issue by declining specific cases.
The three cases the court has agreed to hear stem from a Cleveland-based school voucher program that provides tuition to families who want alternatives to public schools.
Agudath Israel of America has argued in numerous legal briefs that as long as funds are provided to parents and not directly to schools, such school choice programs, even when used for religious schools, do not violate the First Amendment’s separation of church and state.
“For far too long, the debate over school vouchers has been dominated by legalistic discussions of constitutional concern,” said David Zwiebel, the fervently Orthodox Jewish organization’s executive vice president for government and public affairs.
In contrast, the Anti-Defamation League and other Jewish groups view vouchers as subsidies that essentially provide government funding of religion.
If vouchers are deemed constitutional, it will likely trigger a “new series of programs effectively channeling government funds to religious institutions using the voucher schemes,” said Steven Freeman, director of legal affairs for the ADL.
The high court’s decision could fall to Justice Sandra Day O’Connor, the expected swing vote in the decision.
Last year, O’Connor seemed somewhat at odds with the decision in Mitchell vs. Helms, where the court ruled that government aid to religious schools for items such as computers was acceptable and does not have the effect of advancing religion, since the aid is offered without spending directives and is secular in content.
In its 6-3 ruling, the court rejected the distinction between direct and indirect aid, O’Connor noted in her separate concurrence, and held that the diversion of secular aid by a religious school to the advancement of its religious mission is permissible.
O’Connor also tried to nuance her decision. “In terms of public perception, a government program of direct aid to religious schools based on the number of students attending each school differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools,” she wrote.
In the Jewish community, some have distinguished between their opposition to vouchers and their support for government money for auxiliary services, such as bus transportation or textbooks. This, they say, is not a diversion of funds from the public school system.
Regardless of the decision, many in the Jewish community believe more creative methods of raising money from the private sector will be needed to sustain day schools. Jewish day schools are becoming increasingly popular.