Supreme Court: Two Rules for Schools

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The Supreme Court, in a 5-4 ruling, upheld school voucher programs

The Supreme Court's last week before summer recess ended with a victory for school vouchers, a defeat for student privacy and another far-reaching death penalty decision. The highlights:

Vouchers for private schools

Justices struck a blow for private schools Thursday by upholding a Cleveland, Ohio voucher policy. The program allows taxpayer money earmarked for substandard public schools to follow students who transfer to private or charter schools — even if those schools are religious in nature. The majority determined the program does not violate the constitutional separation of church and state, because it does not dictate which schools can receive the funding, but simply creates opportunities for students to get a better education at any school. Those who oppose the program argue that religious schools take advantage of the program far more than secular private schools.

The ruling continues the Court's drift away from imposing strict separation of church and state, as evidenced in recent decisions allowing Bible clubs to meet on school grounds and providing textbooks for religious groups on public school campuses. The Court split on its traditional conservative/swing bloc lines as Chief Justice Rehnquist wrote the opinion for Justices O'Connor, Scalia, Thomas and Kennedy.

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"The majority called this voucher system a 'neutral educational aid program'," says Barbara Perry, professor of government and Supreme Court expert at Sweet Briar College in Virginia. "In the view of the majority, this program does not aid or inhibit religion." Dissenters argue that there is not "true private choice" for parents — a test for voucher programs — because 80 percent of the schools getting money from this program were, in fact, religious schools.

School drug testing

Thursday's second major ruling also involves school students: In a 5-4 decision, the Court overturned a federal appeals court to allow random drug testing of public high school students. The lower court had found the drug testing policy violates students' expectations of privacy.

In question was whether a school has to limit drug testing to students who participate in athletics (a practice already ruled constitutional by the Court) or can also test students who take part in any extracurricular activities. The case was brought by Oklahoma high school student Lindsey Earls, a member of her school's academic quiz team and choir who refused to be tested for drugs, arguing the practice implicated innocent students.

The decision drew an interesting divide through the Court; Justice Breyer, considered one of the Court's most liberal members, does not usually side with conservative stalwarts Thomas or Scalia, but on this occasion he did, joined also by Chief Justice Rehnquist and Justice Kennedy. Breyer has sided with the conservative side on drug and seizure cases before.

"We find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district's legitimate concerns in preventing, deterring and detecting drug use," Justice Thomas wrote for the majority.

The dissent was sharp. "The particular testing program upheld today is not reasonable, it is capricious, even perverse," Justice Ruth Bader Ginsburg wrote for the minority. How, the dissent wondered, will a line ever be drawn between students who may be tested and those who may not? That line may never be drawn, says Perry. This decision means schools can in essence test for drugs in any student they want.

That's not to say that all school districts will start whipping out drug tests for every student who wants to join the chess club. Few schools could afford the expense, or would want to put up with the hassle. But the ruling is another in a line of decisions this year that has produced significant shifts in the broader landscape of privacy law. "This is the third case of the term in which students' claims of privacy have been overruled," Perry notes.

Sentencing defendants

Monday, the Court ruled 7-2 that juries, not judges, have the right to impose death penalty sentences. The ruling dissembles the capital punishment laws in five states where the judge makes sentencing decision without jury input — and calls into question the statutes of four others, where juries make a recommendation that the judge can accept or reject. The Court's ruling, which is retroactive, could affect as many as 800 prisoners currently on death row.

This has been a big session for death penalty laws. Last week, the Court ruled it is unconstitutional to execute mentally retarded prisoners. Are we seeing a trend? Perry thinks that may be exactly what we're witnessing, but Robert Cottrol isn't so sure. Cottrol who is professor of law at the George Washington University School of Law in Washington , D.C., specializes in criminal law and legal history. He urges caution when trying to discern macro-movements within the Court. "We can certainly distinguish three Justices — Breyer, Stevens and Ginsburg — who are deeply skeptical toward the death penalty," says Cotttrol. "But beyond that, the other six Justices vary in accordance with the legal issues raised by specific cases."