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57 N.Y.U. Ann. Surv. Am. L. 89 (2000)
A Truly Living Constitution: Why Educational Opportunity Trumps Strict Separation on the Voucher Question

handle is hein.journals/annam57 and id is 123 raw text is: A TRULY LIVING CONSTITUTION: WHY EDUCATIONAL OPPORTUNITY TRUMIPS STRICT SEPARATION ON THE VOUCHER QUESTION JOSEPH P. VITER=TTI* [The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptabil- ity of its great principles to cope with current problems and current needs.1 -Justice William Brennan, 1985 In December, 2000, a federal appeals panel in Ohio ,affirmed a trial court ruling that found a school voucher program operating in Cleveland since 1995 unconstitutional.2 This is just one of the many voucher cases that have worked their auy through the federal and state courts over the last decade.3 But most observers who watch such litigation closely believe that this is the voucher case that will be reviewed by the United States Supreme Court, setting legal precedents that could guide judicial policy-making well into the twenty-first century. The high court signaled its interest in the case in November, 1999, when it intervened to halt an injunction that would have interrupted the program while the appeal xwas being heard.4 Few political and legal issues in America generate as much pas- sion as vouchers. Supporters contend that vouchers provide educa- tional opportunity to minority and poor children who are not adequately educated in public schools. Opponents argue that us- ing public money to send children to religious schools violates the Establishment Clause of the First Amendment. At the heart of this debate are two fundamental values set deep in the American consti- * Research Professor of Public Policy and Director, Program on Education and Civil Society, Robert F. Wagner Graduate School of Public Senice, New York University. 1. William Brennan speech (October 12, 1985), died in FoREsT McDoxALD, Foreword to RAOUL BERGER, GovERNEN-'r By JUDicL\R. THE TmNsFoR_ LxvnoN OF THE FOURTEENTH AMENDMENT, at i, xviii (1997). 2. Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000). 3. See JOSEPH P. VrrERrn, CHOOSING EQuL,rY SCHOOL CHOICE, THE CO.NSI' TUION AND CIVIL SOCIETY 171-78 (1999). 4. See Zelman v. Simmons-Harris, 528 U.S. 983 (1999). 89 Imaged with the Permission of N.Y.U. Annual Survey of American Law

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