Voucher Supporters, Opponents Primed for High Court Showdown

By Jason Pierce | July 7, 2008 | 8:20 PM EDT

Washington (CNSNews.com) - When the U.S. Supreme Court considers the Cleveland school voucher case next Wednesday, it must consider whether such school-choice programs push religion or simply offer more educational opportunities.

Clint Bolick, vice president and director of litigation at the pro-voucher Institute for Justice, debated the topic at an event, sponsored by Education Week newspaper, designed to give the media a 'sneak peek' of the arguments to be given in the Cleveland school voucher case, or Zelman v. Doris Simmons- Harris.

At issue in the case is whether or not the Cleveland program stands up to Constitutional muster and does not violate the establishment clause.

Elliot Mincberg, vice president and legal director of the anti-voucher People for the American Way, said the program "clearly violates the Constitution."

"The Supreme Court is going to be looking at an important legal issue ... that is not esoteric at all, but an important question of religious liberty related to the establishment clause," Mincberg said.

"According to the latest statistics, more than 99 percent of the students involved in the program go to pervasively religious schools, which can be funded with taxpayer dollars consistent with the establishment clause," he added.

Mincberg added that the tuition reimbursements are geared toward religious schools, because those schools usually have lower tuitions due to subsidies from other institutions or churches.

"In Cleveland, the program is limited to $3,000 in tuition reimbursement," Mincberg said. "Given the way tuition works at private schools," he argued, "the program is inherently biased toward religious schools."

Bolick disagreed, saying the government is not funding religion directly, even though money handed from the government to parents oftentimes ends up at religious institutions.

"The private school option exists on a wide array of educational choices, the vast majority which are public, or non-sectarian private choices, and not a single dollar crosses the threshold of a private school unless directed there by a parent's free choice," he said.

Bolick added that government funds end up in religious institutions in other ways, most notably through the form of G.I. Bills or Pell Grants.

"The government is not endorsing the religious message," he said. "The fact that money is going to a religious school only through a private choice breaks the connection between state sponsorship and the religious schools."

Bolick suggested that the prohibition of voucher programs on the argument that they fund religion would end up discriminating against religious schools.

"Does the first Amendment require discrimination against religious schools?" he asked. "Not only does it not require it, it forbids it."

Mincberg said that other federally recognized rights do not require mandated government funding.

"If the failure to fund something was to discriminate against it, there would be federally funded abortions going on right now, but there are not," he said. "The Supreme Court has recognized that the right to go to religious schools does not [equal] a mandate that they be government funded."

Bolick said that another issue at stake in the voucher case is the right to quality education.

"At the end of the day, what this case is about is fulfilling a promise that was made nearly half a century ago in Brown vs. Board of Education, a promise of an equal educational opportunity for every school child in America," he said.

Mincberg said that the Cleveland case has nothing to do with educational opportunities, but instead the protection of the establishment clause.

"We know that vouchers, as they have been used in Cleveland and elsewhere, are not the answer to Brown vs. Board of Education. Indeed they run counter to our founders, who sought that taxpayers not fund religion," he said.

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