Late Edition: Vouching for Vouchers

Wise men say you cannot predict Supreme Court decisions based on questions raised during oral argument, but the justices’ recent go-round on the Cleveland school voucher case may prove an exception to that rule.

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.

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. 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. That is not how to win friends and influence people on a Court that virtually invited a voucher case to be presented. Clearly, a majority of the Court thinks there’s a serious debatable issue in play. Chanin’s insistence that there was not succeeded chiefly in annoying Justices Stephen Breyer and O’Connor, both of whose votes he needed to win.

If the case were to be decided on the quality of oral argument, French would win 9-0.

That won’t happen, of course, but most close observers of the Court now believe the Cleveland program will be upheld. As always, the devil will be in the details. In sustaining vouchers, the Court may nevertheless place crippling strictures on recipient religious institutions.

But cashiering the Cleveland program altogether will not be easy. The Court’s recent Establishment Clause opinions may not constitute a perfectly coherent body of law, but their general pattern is clear enough. Justices who buy the Chanin argument will have to step around 20 years of contrary precedent. They will be reduced to arguing that even when a voucher plan is clearly secular in purpose (saving poor kids from failing schools) and neutral in design (any school, secular or religious, public or private, can participate), if any tax dollars end up in religious schools, no matter how they get there, the government is establishing a religion.

That conclusion not only wars with the Constitution and common sense but would deprive inner-city children, and the nation, of the single most effective instrument for the reform of public education. The Court, which considers itself the guardian of what it once called “discrete and insular minorities,” would add luster to its reputation by freeing poor kids from the plantation of incompetent schools.

Michael M. Uhlmann

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Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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