Jewish World Review July 1, 2002 / 21 Tamuz, 5762
It was the seventh consecutive defeat in the court for the enemies of choice, whose tenacity is inversely proportional to the morality of their cause. They have again failed to get the court to rule that the separation of church and state is violated by any program in which an individual is allowed to direct public funds to religious schools or programs. Dare one hope that yesterday's ruling, although 5 to 4, will nevertheless be decisive, and that the anti-choice forces will relent in their campaign to continue blighting the lives of poor children?
Cleveland's choice program was created after Ohio's government declared the city's schools to be in an "academic emergency." Well, yes. The school district flunked 27 -- of 27 -- standards for student performance. These are schools that no affluent liberal of the sort crusading against school choice would let his or her children even walk past, let alone into.
Chief Justice Rehnquist, joined by Justices O'Connor, Scalia, Kennedy and Thomas, said Cleveland's program has the "valid secular purpose" of helping children trapped in failing schools. And the program satisfies the court's requirement of "true private choice" because government aid goes directly to parents, who use it at their discretion. It "reaches religious schools only as a result of the genuine and independent choices of private individuals." Hence "the incidental advancement of a religious mission" involves "no imprimatur of state approval" conferred by government "on any particular religion, or on religion generally."
Justice Souter, joined in dissent by Justices Stevens, Ginsburg and Breyer, made much of the fact that 82 percent of Cleveland's private schools that choose to participate in the voucher program are religious. But the dissenters' perverse logic is this: Because some schools -- suburban public schools and some nonreligious private schools -- reject voucher-bearing poor children from the inner city, therefore no inner city private school should be allowed to participate in the program.
Rehnquist responded that such reasoning would lead to an "absurd result": a program like Cleveland's might be constitutional elsewhere in Ohio -- in, say, Columbus, where a smaller percentage of private schools are religious -- but would be unconstitutional in Cleveland, where the need is greatest but, for reasons utterly unrelated to the program, the percentage of religious schools is larger.
Justice Breyer, in his extra-constitutional role as free-lance sociologist, worried that any aid reaching religious schools might stir sectarian discord. His worry is at most mildly interesting, and is irrelevant to the judicial job he is paid to do but which evidently is not large enough to exhaust his itch to set social policy.
Fortunately, the court may at long last have wearied of splitting constitutional hairs, a habit that has produced a series of opera bouffe rulings, such as: It is constitutional for public funds to provide parochial school pupils with transportation to classes -- but not field trips. To provide parochial schools nurses -- but not guidance counselors. To provide religious schools with books -- but not maps. This last bit of judicial casuistry made Pat Moynihan wonder: What about atlases -- books of maps?
It has been well said that really up-to-date liberals do not care what people do, as long as it is compulsory. Many liberals are "pro-choice" only about killing unborn babies. Not about owning guns, driving large cars, wearing fur, smoking cigarettes, privately investing a portion of their Social Security taxes, saying the unedited (by the U.S. Court of Appeals for the 9th Circuit) Pledge of Allegiance, and on and on and on.
The opposition to school choice for the poor is the starkest immorality in contemporary politics. It is the defense of the strong (teachers unions) and comfortable (the middle class, content with its public schools and fretful that school choice might diminish their schools' resources and admit poor children to their schools) against the weak and suffering -- inner-city children. Happily, yesterday, socially disadvantaged children had their best day in court since Brown v. Board of Education in 1954.
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