Vouchers Are Coming!
An email conversation about the news of the day.
June 26 2002 4:08 PM


You ask what I think about the school vouchers case. Since the decision is going to be handed down shortly after 10 a.m. tomorrow (the last day of the Supreme Court's term), it would be foolish for me to comment on it now. But what the hell.

Whether or not this particular Cleveland program stands or falls, the decision will be a road map showing how to construct a valid voucher program. Even if a majority of the court were to find that particular program flawed in some specific way, the real story will be that—as a general proposition—it is not unconstitutional for a state to provide vouchers for school tuition in a program that allows parents to choose to use those funds at religious schools.

That seems right to me. I do not believe that the Constitution is violated when government includes religious institutions in otherwise generally available government-funding programs.Although it is unconstitutional for government to single out religious institutionsfor preferential subsidization, it is also unconstitutional for government to single out religion for discriminatory exclusion.

That does not mean that all voucher programs are valid; a court should be on the lookout for a program that is gerrymandered in its design so that parents are steered by the government into religious schools. I think the Cleveland program can survive that scrutiny, but there are some features that give pause. Participating private schools must limit tuition to an amount so low that it is hard for schools to participate unless their teachers take a vow of poverty. That's an exaggeration. But if Cleveland made the tuition grant higher, more secular schools might be created and make the range of choices more expansive. The present program, which consists mainly of failing public schools and Catholic parochial schools, in fact offers only a limited range of private choice.

The state's counsel, Judy French, did a terrific job at oral argument acknowledging that the program wasn't perfect—no government program is—but arguing that if the court would remove the legal cloud over vouchers, a greater variety of nonpublic schools would be brought into existence, expanding the range of genuine private choice. I think that position will prevail.

A decision favoring vouchers (with or without some program modifications) will continue what I believe to be an extraordinary Rehnquist Court record of having decided correctly every major religion case to come before the court in the last decade. The court has come to settle on a profound but simple proposition, most simply put as: "Government religion bad; private religion good."

What is extraordinary about this great record is that seven of the justices seem to me to be wrong about one of those two major propositions. The chief and Justices Scalia and Thomas seem blind to the harms of government promotion and endorsement of religion; Justices Stevens, Souter, Ginsburg, and (sometimes) Breyer fail to accord private religious choice the right to nondiscriminatory treatment by government funders.

The heroes of this story are Justices O'Connor and Kennedy. They have voted with Justices Stevens, Breyer, Ginsburg, and Souter to sustain the proposition that it is no business of the government to influence how or whether people worship. And they have voted with the chief justice and Justices Scalia and Thomas for the equally important proposition that government cannot discriminate against private religious choices when it funds a general category of activity. Justice O'Connor in particular seems to understand the unifying principle: that government itself has no business attempting to influence religious choiceseither for or against religion.  

We'll know about vouchers soon enough. As we conclude our exchange, I'd like to know what you think the Rehnquist Court will be remembered for. And what about this book you are rumored to be writing on the court? You extensive cult following (which I know to include several former solicitors general) seems to think/hope that it will be such an irreverent look at the court that those of us who aspire to respectability will have to carry it around in a brown paper wrapper.


Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.



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