"By the time of the Supreme Court's ruling on the Cleveland, Ohio, school voucher case, in late June, the outcome seemed almost forgone. Observers at the oral argument in February agreed things had gone badly for separationists who opposed vouchers, and well for the proponents of the program. Lawyers challenging the Cleveland plan had been on the ropes throughout the argument, and had seemed unable (or unwilling) to answer the Justices' questions about educational alternatives that were open to low income Cleveland parents.

Even more ominous for those who challenged the use of public funds for tuition at private schools (most of which were church-related, and overwhelmingly Roman Catholic) was the way in which the law had been moving since the mid-1990s. Though the High Court has remained firm in its refusal to permit worship or devotional activity in the public schools -- witness the 6-3 ruling that struck down the Texas high school football game prayer just two years ago -- the wall of separation has been less resilient when it comes to public subvention of parochial schools.

After permitting tax credits for parents of parochial school students, and more recently allowing government to provide interpreters for hearing-impaired students in religious schools, the Justices two years ago opened the door much wider by sustaining a federal program that channeled instructional equipment into schools regardless of their religious affiliation. Such programs need only be religiously "neutral" and must reflect genuine private choice to merit the majority's support when challenged under the First Amendment's Establishment Clause. Yet there remained some hope that Justice Sandra Day O'Connor, who has been the crucial tie-breaker in this area, would stop short of upholding a comprehensive voucher program.

That hope proved illusory, however, as Justice O'Connor (with surprisingly few reservations) joined a five-member majority in sustaining the Cleveland voucher program. Chief Justice Rehnquist spoke for this majority, insisting only that a program to support the validly secular goal of educating young people must allocate public funds on the basis of genuine private or family choice, and without reference to religion, noting that attending secular private schools and receiving tutorial assistance were among the options that were theoretically open to low-income Cleveland parents. Even though the vast majority of participating students attended church schools sponsored by a single denomination, earlier cases had rejected any notion that such an imbalance would taint an otherwise valid program.

Four Justices dissented vigorously, arguing that the majority had now crossed a line which had firmly barred such direct aid since the Court first entered the Establishment thicket in 1947. The dissenters insisted that their colleagues had mischaracterized the issue of "choice" in order to validate their benign view of vouchers, and had taken a step which would prove as harmful to inner-city public education as to the separation of church and state.

It is much too early to predict the impact of the high Court's long awaited voucher ruling. While many political leaders, from the President on, applauded the decision and urged expansion of voucher options, the current fiscal climate makes quite unlikely the creation of new programs of this type. Even though the per-pupil expenditure may seem rather modest -- a maximum of $2250 in Cleveland -- the total cost of any such program may be staggering. In that sense the timing could hardly have been less propitious; the ruling coincided closely with the shutting down of the entire government in one state (Tennessee) and growing laments by most other states about severe budget imbalances not likely to disappear or even diminish soon. Thus, however strong the momentum behind vouchers may seem in the abstract, the probability of practical implementation seems markedly lower.

Finally, it is important to note several inherent limitations in any such decision. The program to which the majority gave its blessing benefits only the neediest parents in a public school district that has been plagued with problems, fiscal and otherwise. The majority was at least technically correct in noting that the vouchers contain no incentive to choose irreligious rather that a secular alternative to existing public schools. While no suburban public schools have yet offered slots to Cleveland voucher students, they are theoretically included and may eventually join. Meanwhile, an impressive array of other alternatives does exist, and seems to have attracted a small portion of the eligible families.

Many difficult issues remain for future litigation -- immediately within the realm of vouchers, and more broadly touching upon a host of other government programs that may benefit religion and religious institutions. While Messrs. Jefferson and Madison might well be troubled that the Supreme Court majority had condoned so dramatic a form of accommodation, they would also remind us that each program and each initiative deserves its own day in court. Generalizations are especially hazardous in this area of constitutional law." (Robert O'Neil, The Piedmont Mainstream Citizens News, September 2002).