School Vouchers are Good

School Vouchers are Good

Wise men say you cannot predict Supreme Court decisions based on questions raised during oral argument, but the justices' go-round on the school voucher question may prove an exception to that rule - as this essay will demonstrate.

Lead counsel for each side respectively provided a textbook example of how to argue, and how not to argue, before the High Court. The justices see their share of both types but rarely in the same case. Judith French, assistant attorney general of Ohio, defended the Cleveland program brilliantly. She was poised, calm, deliberative, and engaging. She listened to questions from the bench and fitted her responses within the doctrinal parameters of prevailing case law.

Her chief opponent, Robert Chanin, counsel for the National Education Association, at one point or another frustrated or annoyed almost every member of the Court, including those whose support was essential to his cause. He was by turns rigid, hectoring, and evasive, sometimes cutting justices off in mid-question(WCBS).

On the merits, his argument was a one-trick pony: Vouchers are but a backdoor transfer of government funds to religious institutions in violation of the Establishment Clause. Doctrinal secularism of this sort warms the blood at ACLU and teachers' union rallies, but it will not bear scrutiny in serious debate. Under the Cleveland program, the state does not distinguish between eligible religious and secular schools and has no control over where the money ends up. Parents and parents alone -- decide which school their children will attend.

Chanin's argument might have secured some purchase with the Court 30 years ago, but no longer. The dominant constitutional tests of recent years speak in terms of government neutrality and non-endorsement. The Cleveland program was neutral, French said, because it gave no preference to religious schools, and endorsement was not at issue because tax dollars can get to a recipient institution only after the independent, intervening decision of parents. Chanin's only response was to assert without demonstration that the carefully drawn criteria of the Cleveland plan were sham.

But no matter how often he said so, it was strikingly apparent that most of the justices (even those presumably sympathetic to his side) weren't buying his formulaic mantra. Justice Sandra Day O'Connor repeatedly tried to move Chanin beyond ritual incantation toward the specific facts at issue, but he rebuffed the invitation(Supreme Court). By refusing to concede even the slightest constitutional plausibility to the opposing argument, he essentially implied that much of the Court's First Amendment jurisprudence of the past 20 years was wrongly decided.