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July 5, 2002/Tamuz 25 5762, Vol. 54, No. 42
Voucher ruling proves divisive
SHARON SAMBER
Jewish Telegraphic Agency
The U.S. Supreme Court's long-awaited ruling on school vouchers may not be the last word.
In a narrow 5-4 decision issued June 27, the high court said that vouchers, which provide government funds for students to attend parochial or private schools, do not violate the constitutional separation of church and state.
The battleground now is likely to move to the state level, where many Jewish groups plan to mount an offensive against vouchers, arguing that they are bad public policy even if constitutional.
The majority opinion made a clear distinction between vouchers and direct government funding of religious schools. The decision thus is not likely to impact the issue of charitable choice, which allows federal money to go directly to religious groups that provide social services.
The fight could be taken up at the congressional level, but with the federal government straining to finance the war on terrorism, it will be hard for lawmakers to make the case for more government funding for schools.
The American Jewish Congress was involved in preparing the plaintiff's brief against the vouchers, and the American Jewish Committee and ADL also joined a brief on the voucher opponents' side.
Reaction to the ruling in the Jewish community was predictably mixed, with longtime opponents such as the Anti-Defamation League calling the decision "a step backwards for religious liberty."
Opponents cite vouchers as a breach of church-state separation and say they drain money from the public school system.
In contrast, Orthodox groups, which think vouchers could help fund Jewish day school education, praised the ruling.
The case before the Supreme Court - Zalman, Superintendent of Public Instruction of Ohio, et al. v. Simmons-Harris, et al. - addressed whether the state-funded Cleveland Scholarship and Tutoring Program subsidized religion. The program, targeted but not limited to low-income families, was started in 1995 to rescue the city's failing schools.
Opponents of the program said such a subsidy would violate the First Amendment's Establishment Clause, which prohibits the government from supporting a religion.
But the Supreme Court emphasized the choice contained in a voucher program.
"This Court's jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice," Chief Justice William Rehnquist wrote for the majority.
Justices Antonin Scalia, Sandra Day O'Connor, Clar-ence Thomas and Anthony Kennedy joined with Rehnquist's decision.
Justices Ruth Bader Ginsburg, Stephen Breyer, John Paul Stevens and David Souter dissented.
Jewish groups were not surprised by the decision. Still, the high court's final say is anything but for voucher opponents.
The ADL said that it would continue to fight vouchers at the state level on policy and constitutional grounds.
The American Jewish Committee said the decision was "a troubling endorsement of unsound public policy" and said it, too, would fight vouchers under state constitutional laws that often contain more stringent safeguards.
Hannah Rosen-thal, executive director of the Jewish Council for Public Affairs, sounded a warning of government support for potentially anti-Semitic teachings.
"Schools run by the Nation of Islam that teach anti-Semitic lies could now receive taxpayer money" through the vouchers that families use.
Orthodox groups, however, believe government support to religious schools is not only acceptable but necessary for the Jewish community.
Vouchers are not a panacea, but they will provide help to parents, said Abba Cohen, director and counsel of the Washington office of Agudath Israel of America, a fervently Orthodox group.
Mark Pelavin, associate director of the Religious Action Center of Reform Judaism, countered that the Jewish community should not build up its day school system at the expense of the public school system.
Critics also believe accepting government aid in any form opens the door to government entanglement.
The potential for government entanglement is of serious concern to the Orthodox community, Cohen said, but schools should have the option to accept vouchers and decide for themselves whether it would compromise their religious beliefs.
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