WASHINGTON -- Several Supreme Court justices seemed sympathetic Wednesday to the idea that government can help pay tuition for children at religious schools and stay within constitutional bounds.
Again and again during a spirited argument, four justices suggested that a school tuition voucher program can pass muster if it gives parents lots of choices -- both religious and nonreligious.
"Unless there's an endorsement of religion, I don't see why it matters if (government) money goes to a religious school," said Justice Antonin Scalia.
The court's answer, expected by summer, could remap the educational landscape. Numerous states and school districts are awaiting word from the high court about whether there is a way to set up a voucher program that does not violate the constitutional principle of separation of church and state.
The case is the most talked-about on this year's court docket and one of two potential blockbusters the court heard Wednesday. The day's other case asks whether it is still constitutionally acceptable to execute the mentally retarded.
Key to the court's ruling will be the real-world effects of government vouchers like those used in a 6-year-old test program in Cleveland, and whether they treat all children and all parents fairly.
In Cleveland, which has one of the worst-rated public school systems in the country, parents may apply for vouchers of up to $2,250 per child. The money may be used at any of 51 participating schools, all but nine of which are religious. Most are Catholic.
Between 96 percent and 99 percent of children in the Cleveland program attend a religious school. The voucher amounts nearly cover the cost of a church-subsidized education, but do not begin to cover normal tuition at many secular academies.
Secular private schools and suburban public schools are eligible to participate in the program, and the fact that more have not done so is no fault of the voucher program itself, Ohio Assistant Attorney General Judith French argued to the court.
The numbers don't look so out of whack when you consider that parents have other choices aside from vouchers, including sending their children to charter or magnet schools, Justice Sandra Day O'Connor said.
"Why should we not look at all the options open to the parents in having their children educated?" she asked.
Other justices suggested that over time, more secular academies might join the program and even out the numbers.
"The question is whether there is neutrality," between religious and nonreligious schools, Justice Anthony M. Kennedy told a lawyer arguing that the Cleveland vouchers are unconstitutional. "You're asking us to look at only part of reality."
O'Connor's vote is considered crucial in this case, and she did much of the talking Wednesday.
If she concludes that the Cleveland program offers a true, neutral choice both in theory and in practice, hers will probably be the deciding fifth vote to uphold the program, lawyers on both sides of the issue agree.
Chief Justice William H. Rehnquist and Scalia seemed to support the voucher plan. Justice Clarence Thomas is already on record as supporting voucher-like programs.
The Constitution says the government cannot "establish" or promote religion, but also protects the right to practice religion.
Voucher backers hope the court will see the issue as a logical extension of recent rulings that mandate equal treatment for religious organizations or ideas. Using that rationale, the court has opened schoolhouse doors to a Bible club, required school funding for a religious magazine, and allowed government aid for computers and tutoring in parochial schools.
Arguing the other side Wednesday, lawyer Robert Chanin said the court has always drawn a distinction between programs that are truly evenhanded, and those that would support religion over secular aims.
Vouchers, he said, "are a lousy idea," and "a backdoor to doing exactly what the Establishment Clause says you can't."
Although little acknowledged in the courtroom, the voucher case carries great political freight. President Bush supports the idea, although he could not win a national voucher program in Congress last year. He now supports a voucher-like tax credit for private or parochial school tuition.
"The outcome of this case will lift the constitutional cloud hanging over school-choice programs and may well determine the educational destiny of millions of American children," Education Secretary Rod Paige said after the argument.
The cases are Zelman v. Simmons-Harris, 00-1751; Hannah Perkins School v. Simmons-Harris, 00-1777; Taylor v. Simmons-Harris, 00-1779.
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