Washington At times, the chamber sounded more like a school board meeting than a Supreme Court hearing. The room echoed with laments about urban schools and poor kids trapped in an educational disaster zone.
The landmark case before the justices was about school vouchers. And the question is whether the Cleveland program provides a legal escape route for public school kids or illegally funnels taxpayer money onto the church plate.
It's no surprise that everyone in the courtroom seemed to share the worst assumption about the schools as broken and kids as "trapped." Barely a third of the public school kids in Cleveland graduate from high school. The prospects were so dismal six years ago that the Ohio Legislature set up a voucher plan to let parents take the money $2,250 a year and run to the private sector.
I have never understood exactly why the education reform movement of the moment focuses on just two hot issues: testing and vouchers. More to the point, I have trouble divining the "choice" behind "school choice."
After all, the Cleveland program has not proved to be that much of an escape for low-income kids. Only 21 percent of the 4,300 students now getting vouchers were ever in the public schools to begin with. Most of those who were, actually left the better-performing schools. More importantly, the jury is still out on whether the academic lot of inner-city kids improves in the private religious school.
But these are issues for the real school boards to decide, and the Supreme Court justices don't actually do educational policy. They do law. They do the Constitution. So for the court and for the country, the matter at hand is the separation of church and state.
In theory, Cleveland's $2,250 voucher program is open to any private school and any suburban public school. In real life, only 51 private schools enrolled, all but five of them Catholic. In real life, the taxpayers send 99 percent of the kids and nearly $10 million to schools where students are required to say mass or, in the case of one Cleveland school, pledge allegiance to the "Christian flag and to the Savior for whose Kingdom it stands."
Does this mean the state is now supporting the church, or is the government merely giving money to parents to use as they see fit? When is it OK for taxpayer money to go to religious institutions and when does it run smack into the Constitution?
To use an analogy offered by Elliot Mincberg of People for the American Way, any government worker can donate her entire paycheck to the church. It's her paycheck and she can do what she wants with it. But when the government says she can only spend that paycheck in 10 stores and nine of them sell religious merchandise, we're in different territory. And in Cleveland, virtually the only place where you can use that government check to buy a private education is in a religious shop.
Over the past few years, the court has softened its view on government support of religious schools. The justices have said it's OK to use public money for computers or books or nonreligious teachers. And the swing vote on this court, Justice Sandra Day O'Connor, seems to be in search of another compromise in the Cleveland case.
But they have never said it is OK to pay for religious instruction with public funds. So let lawyers describe this as a gray area, a close call, but listen to the mother of 12 with four kids on vouchers as she talks about their school with pride: "It's a faith-based education. I want them to learn their faith."
Surely we can applaud this decision without paying for it. When the voucher goes to the religious school, the state is paying to teach kids the fourth R: religion.
Patricia Graham, an education historian, adds, "In the education world, lots of us say that schools are the stage on which society acts out its dramas. In this case we are again arguing about what role does religion play in American life."
Last fall, we read about Islamic countries where parents could "choose." They could choose between no education or a fundamentalist school for their children. Many of us read that and remembered exactly why the separation of church and state is pivotal to our own democracy.
But now the public conversation is about the "choice" between bad schools and religious schools. We're talking about the "choice" between strong education and a strong Constitution. Sometimes, I'm afraid, we are just not choosy enough.
Ellen Goodman is a columnist for Washington Post Writers Group.