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Supreme Court Rules in Favor of School Vouchers

Aired June 27, 2002 - 10:27   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: But right now, we want to go to Washington, another major decision coming down from the Supreme Court.

Our Bob Franken once again standing by -- Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, it's the most- significant-in-the-minds-of-many decision of this Supreme Court term, and they wait until the very last opinion to issue their ruling. It is a victory for the conservative block of the Supreme Court. They have ruled that a school vouchers program in Cleveland, Ohio, does pass constitutional muster, that it is not a violation of the establishment clause, that it does not violate the separation of church and state, even though much of the money that the Cleveland school system would give to people from substandard public schools would be then given to private, parochial schools -- a lot of them -- when they transfer the students to parochial schools.

Now, the program has been on hold, because lower courts had said that it did not pass constitutional muster. But now, the Supreme Court has said that, in fact, this program can go on. In the majority opinion it says, the constitutional of what it called a neutral educational aid program simply does not turn on whether and why in a particular area at a particular time most private schools are religious, or most recipients choose to use the aid of a religious school.

So they are saying that even if somebody uses taxpayer money to send his child or her child to a religious school, that does not violate the establishment cause, the first words of the First Amendment: freedom of religion and freedom from government establishing a religion.

Now, we have with us the two sides of this case, Barry Lynn of the organization -- church -- nation -- for the Separation of Church and State.

You are the losers here, Barry Lynn.

And we have Clint Bolick of the group -- I forget the name of the group...

CLINT BOLICK, INSTITUTE FOR JUSTICE: Institute for Justice.

FRANKEN: Institute for Justice. This is the group that has so strongly advocated for the use of vouchers.

Let me start with you. You won, so you get the first comments here. This is a huge decision.

BOLICK: This is a huge decision. It's the most important education case since Brown v. Board of Education. It's a great day for schoolchildren all across America, especially in Cleveland. This was the Super Bowl for school choice, and the kids won.

FRANKEN: And you, of course, are someone who have fought constantly to separate church and state. You lost here, didn't you?

BARRY LYNN, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE: We did, and we lost in a very significant fashion. This is probably the worst church-state case in the last 50 years. It really brings a wrecking ball to the part of the wall of separation between church and state regarding funding of private religious schools.

I don't know what country these justices are living in, but in the country and in Ohio, where this case started, 96 percent of the beneficiaries of these vouchers were in religious schools. The money ended up directly in the treasuries of those religious schools, which means all taxpayers now have to subsidize religious education and indoctrination. That's not the American way of doing things.

FRANKEN: Of course, that's the fundamental question here, Mr. Bolick: Should a taxpayer who does not want to subsidize a particular religion be required to?

BOLICK: What we have decided in this country is that we will subsidize education, and we should care less about where education is taking place and more about whether education is taking place.

These kids are getting good education. Their parents -- not the state -- the parents have chosen to send them to religious schools. That's the essence of this decision today.

FRANKEN: We were listening to Clint Bolick, who is an advocate of the voucher program, big winner today. Barry Lynn, whose organization opposes any melding of religion.

LYNN: We are going to keep fighting this. This is not over. Every time that this issue of vouchers comes up at any state legislature in the Congress, we're going to make the argument, that this is bad policy and does not help kids.

FRANKEN: But you don't have, now, the Constitutional argument to make, because the Supreme Court, by five to four ruling, has taken that away.

LYNN: That's right, but we've got plenty of others, because this was bad policy yesterday and it's bad policy today.

FRANKEN: Mr. Bolick?

BOLICK: It is sad to hear such sour grapes. But this is a great day for America. All Americans should celebrate the expanse of equal educational opportunities.

FRANKEN: What this is going to mean from a practical matter is that the Cleveland Board of Education, which now has this program, which was put on hold as it made its way through the courts, will be allowed to provide subsidies for private schools for parents whose public schools are judged substandard -- that, basically, the school.

They will be allowed -- the parents will -- to send their children to religious schools, parochial schools -- those schools will be allowed to mandate religious training. By a five to four decision, the Supreme Court has ruled that is Constitutional. It does not violate separation of church and state.

I'm going to read through this opinion and give you who in fact signed this opinion. First of all, of great significance, this was signed by chief justice. He was the one who delivered the opinion. Of course, as conservative, he was joined by Sandra Day O'Connor, who is so often the swing vote on the court, Antonin Scalia, no surprise, Justice Kennedy and Thomas.

Again, the Cleveland Board of Education will be allowed to use school vouchers. A hugely significant case in the separation of church and state argument -- Leon.

HARRIS: Thanks, Bob. Bob Franken there in Washington with the two principals in that case there outside the Supreme Court.

Let's go now to New York and our legal analyst, Jeffrey Toobin, who has also been listening in and also gauging this decision here.

Jeffrey, how does this strike you, particularly with this 5-4 decision here?

JEFFREY TOOBIN, CNN LEGAL ANALYST: It's interesting. The split is the classic liberal/conservative split. It's actually the same votes, same five in the majority in Bush v. Gore were in the majority here. I think it's important to say one of the real victors here today is President Bush, because school vouchers have been an important part of his education plan. And now there is Constitutional approval for that plan.

The key part of this argument has always been that the school voucher program does not specifically target aid to religious schools. It allows parents to choose whether to use this money at private schools that are nonsectarian or religious schools, and it seems the court decided because this aid was not targeted to aid religious institutions, but simply allowed parents to choose to aid religious institutions, that's the key reason why it passed Constitutional muster.

HARRIS: Yes, and I hear that and I understand that, but it strikes me, as a casual outside observer, that that seems a somewhat transparent reasoning, when the fact of the matter is there really aren't that many -- I'm sorry, non-religious private schools that actually would take this money, and the case here, as you just heard Bob say in Cleveland, 96 percent of the voucher money that was being doled out was going to religious schools.

TOOBIN: That's right, Leon. And -- but the courts have never said that the government has to maintain a complete wall of separation from religious institutions. There have been a series of cases, for example -- textbooks that are given to all schools can also go to parochial schools. Fire and police protection can go to parochial schools. They don't have to be cut off from all government benefits.

The court -- the court is saying that this is, at least on its face neutral. It could go to private non-sectarian schools as well as religious schools, so that's why, even though it has the effect of aiding religious schools, because it's not intended that way, that's the difference.

But look, this is a 5-4 decision. It's obviously a very close question, but five votes wins in the Supreme Court, and it's the law of the land.

HARRIS: Well, let me ask you about this. You just also heard Barry Lynn the losing -- the representative of the losing side in this argument, saying that they were going to continue to raise this up and take this issue to a court every single time a state decided to go ahead and engage in a voucher program.

What happens with any other case? How -- does that make sense, even, to continue pushing that, considering that the Supreme Court, now, has weighed in against it?

TOOBIN: I think what Barry said, specifically, is not that they would continue going to court, is that they would fight in state legislatures. Just because voucher programs are Constitutional doesn't mean that state legislatures have to approve them. In fact, they've proven very controversial. In voter initiatives I believe Michigan voted down school vouchers. The teachers' unions, the public school teachers' unions, which are a very powerful group in our country, are very strong in fighting these proposals.

I think the battleground will really shift from the courts, where this issue is now settled, to state legislatures, where legislatures are, of course, free to decide whether this is good or bad idea. It's simply that, as you pointed out earlier, the Constitutional argument is now taken away.

HARRIS: Interesting. Well, the debate certainly isn't over. In fact, we are going to have debate next hour on this.

Jeffrey Toobin, thank you very much. Good to see you.

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