By Savage, David G.
State Legislatures , Vol. 28, No. 8
The states continued a winning record in the U.S. Supreme court again this year. The justices upheld the principle that lawmakers can aid parents who choose private or parochial schools for their children. They opened the door somewhat for states to regulate HMOs and, in some instances, to force them to pay for a patient's needed medical treatment or drug therapy. And they expanded the states' shield of sovereign immunity to include administrative hearings by federal agencies.
State officials also gained more leeway in confining and treating convicted sex criminals. And in a rare setback for the property rights movement, the high court ruled that state and local agencies cannot be forced to pay damages for imposing a temporary ban on development.
This flurry of state friendly rulings is not a new trend, of course. Since President Reagan chose him as chief justice in 1986, William H. Rehnquist has been a steady advocate of giving more authority to state and local elected officials. At the same time, he has pressed for restricting the power of federal judges over schools, prisons and state criminal prosecutions. He has even revived the constitutional barriers on the power of congress to regulate matters that fall within the domain of the states.
None of these changes have come quickly, however, and the June 27 ruling upholding Ohio's school vouchers law marked the culmination of a nearly 30-year effort by Rehnquist to clear the way for a school choice law. Associate Justice Rehnquist was a rookie conservative on the Supreme court in 1973 when his colleagues voted to strike down a New York state tuition tax credit law for parents who sent their children to private or parochial schools. Then, the strict separation of church and state doctrine was in vogue, and the court majority said state aid would have the obvious "effect" of subsidizing religious teaching, a clear violation of the First Amendment's ban on laws "respecting an establishment of religion.
Rehnquist disagreed profoundly. He described Thomas Jefferson's comment that the constitution was intended to erect a "wall of separation" between church and state as a "misleading metaphor" that should be ignored.
Instead, he said, the Framers of the constitution prohibited only the official sponsorship of a church and government favoritism toward a particular religion. In his dissent, he described the New York tax credit as a measure of a "benevolent neutrality" that was intended to promote education, not religion. Moreover, it offered parents a true choice among an array of educational options.
This year, Rehnquist finally found a 5-4 majority to write his view into law. Low-income parents in Cleveland may receive a voucher of up to $2,250 per year to pay for a child's tuition at a private school. More than 96 percent of the parents who took the money used it to send their children to church-related schools. Citing this fact, a U.S. appeals court struck down the Ohio law on the grounds that it had the clear "effect" of subsidizing religious education.
But the chief justice said that a state aid program of "true private choice" does not amount to an unconstitutional establishment of religion, regardless of how or where the money is spent.
"The Ohio program is neutral in all aspects toward religion. It is part of a general and multifaceted undertaking by the state of Ohio to provide educational opportunities to the children of a failed school district," he wrote. (Ohio's state school superintendent Susan Tave Zelman had appealed after the lower court ruled in favor of the lawsuit brought on behalf of a taxpayer named Doris Simmons-Harris, so the Supreme Court case was known was Zelman vs. Simmons-Harris.)
Although Ohio's voucher program was targeted at the Cleveland schools, Rehnquist's opinion suggests that a statewide program of vouchers or tuition tax credits would be upheld, as well. …