Wednesday September 26, 2001

WASHINGTON - The Supreme Court, tackling a stark church-state issue dear to President Bush, agreed yesterday to decide whether the Constitution permits using taxpayer dollars to pay religious school tuition.

The court will hear challenges sometime early next year to a 6-year-old school voucher program involving about 3,700 children in Cleveland. A ruling is expected by summer.

Supporters hope the conservative-led court will use the case to broaden its recent

trend of approving limited uses of taxpayer money at religious schools. Opponents, too, say the court's ruling could be a landmark.

"This is probably the most important church-state case in the last half-century,'' said Barry Lynn, executive director of Americans United for the Separation of Church and State.

The case poses a direct query about the Constitution's position on government money and religion. Recent church-state cases, while important, have explored more peripheral matters, such as whether a prayer group may meet in a public school building.

The court announced several new cases it will hear in the coming term, which begins Oct. 1. Along with the voucher case, the court agreed to decide whether a national one-strike-and-you're-evicted policy for drugs in public housing is unnecessarily harsh.

The court also signaled it is determined to decide the constitutionality of executing the mentally retarded. The court dropped one case that asked that question because it had become moot, but immediately substituted another. The justices probably will hear arguments on the issue in January or February.

Vouchers let parents use government subsidies to pay at least some of the tuition at private and parochial schools. In Ohio, parents can get up to $2,500 in tuition help. All but a handful of the schools participating in the Ohio program are religious.

Supporters say vouchers, also known as school choice, give children an escape from rotten and dangerous public schools, public schools incentive to improve and parents some control over bureaucracies

"To be forced to send my child to a system that's failing is just idiotic,'' said Roberta Kitchen, legal guardian for 10-year-old Toshika, whose tuition at a Lutheran elementary school is almost entirely funded through the Cleveland voucher program.

Toshika is getting good grades, and wants to be doctor, Kitchen said. Her school

provides small classes, attentive teachers and all the books and supplies she needs. With four other children to support, "there is no way I can afford all the tuition," Kitchen said. "The vouchers were a godsend."

Political opponents, including teachers' unions and most congressional Democrats, say vouchers siphon precious public money from the neediest schools. "Vouchers are bad public policy," said Julie Underwood, general counsel for the National School Boards Association. "Vouchers are not the educational silver bullet; they're not the path to improving public schools."

Vouchers were a centerpiece of President Bush's education campaign platform. But there was not enough Republican support for the idea when Congress recently passed a sweeping education reform package and the idea was shelved temporarily.

In an indication of the issue's prominence within the administration, however, Bush's top Supreme Court lawyer filed an uninvited friend-of-the-court brief urging the justices to take on the Cleveland dispute.

Solicitor General Theodore Olson argued that the Cleveland program is constitutional, because the same amount of cash is available to students who enroll in church-run schools and nonreligious private academies.

Lower courts reached opposite conclusions about whether the Cleveland program is constitutional. The First Amendment protects the free exercise of religion, but prohibits the government from promoting it.

"The Supreme Court has never approved such a massive program of public aid for religious instruction in its history," said Steven R. Shapiro, legal director of the American Civil Liberties Union. "And it could not do so now without dramatically reforming our modern understanding of the constitutional prohibition against government entanglement with religion."

The court last ruled on vouchers directly in 1973. It struck down a school voucher program because public money went to "subsidize and advance the religious mission of sectarian schools."

The court has become more conservative since then and has allowed pro-voucher decisions from lower courts to stand. It also has allowed government aid to religious schools for things such as computers and remedial tutoring.