Voucher, Affirmative action cases highlight key role of Justice O’Connor on closely divided Court
The Supreme Court added several cases to its docket for the term that begins on October 1. Many of the cases now before the Court involve fundamental constitutional principles and will significantly affect public policy on a range of issues, including affirmative action, free speech on the Internet, and publicly funded vouchers for religious schools. Several of the most important cases to be decided by the Court are in areas like affirmative action and church-state separation, where the justices are closely divided.
“Constitutional liberties are coming up for some close votes,” said People For the American Way Foundation (PFAWF) President Ralph G. Neas. “These cases should remind Americans of the importance of the Supreme Court and of the powerful impact that will be made by future appointments.”
Neas noted that Justice Sandra Day O’Connor will play a pivotal role, potentially determining not just the outcome of specific cases, such as school vouchers and affirmative action, but also in the interpretation of key constitutional principles and the legality of many other present and proposed government programs.
Publicly Funded Vouchers for Religious Schools
In Simmons-Harris v. Zelman, the Court will review a decision by the Sixth Circuit Court of Appeals that the Cleveland school voucher program is unconstitutional because it violates church-state separation. The decision in this case could affect not only school vouchers, but also other efforts to funnel government dollars to pervasively religious institutions, such as the administration’s faith-based initiative.
PFAWF, which is serving as co-counsel for the Ohio citizens who have challenged the voucher program, has just released a background report, Five Years and Counting: A Closer Look at the Cleveland Voucher Program.
“Religious school vouchers have been repeatedly rejected by voters, by Congress, and by federal courts,” Neas said, “and now the Supreme Court will decide their constitutionality.”
Neas noted that in 1973, the Supreme Court struck down a similar New York private school tuition reimbursement program.
In Adarand Constructors, Inc. v. Mineta, the Court will review a decision by the Tenth Circuit Court of Appeals that the Department of Transportation’s affirmative action program for disadvantaged business enterprises is constitutional.
“The Court could well decide whether any form of affirmative action is constitutional,” said Neas. PFAWF has filed an amicus curiae brief in support of the lower court’s decision upholding the program.
In an earlier decision in the Adarand case, the Court directed that the program be reviewed under strict constitutional scrutiny to determine whether it violated the Equal Protection Clause of the Fourteenth Amendment by improperly favoring minorities. Pursuant to the Clinton administration’s “mend it don’t end it” approach to affirmative action, the department revised the program, and the appeals court found that it was narrowly tailored to promote a compelling government interest in remedying and preventing discrimination.
In addition, the Court will decide at least a dozen other non-criminal cases with far-reaching impact on civil rights, free expression, and other individual rights. These cases are briefly discussed in PFAWF’s new Summary of Key Individual Rights Cases in the Supreme Court in 2001-02.
Examples of the cases discussed include:
Ashcroft v. ACLU, which concerns the constitutionality of a 1998 federal law seeking to severely limit Internet communications by prohibiting posting of “harmful to minors” materials. PFAWF has filed an amicus curiae brief in support of the appellate court decision striking down the statute.
Correctional Services v. Malesko, which concerns whether an individual can bring a federal constitutional claim against a private corporation performing a federal governmental function under color of federal law, such as private prison contractors.
Prudential HMO v. Moran, which concerns whether patients can sue HMOs under state law for refusing to consent to necessary medical treatment, or whether such claims are pre-empted by federal law.
Earlier this year, People For the American Way Foundation released an update to last year’s “Courting Disaster” report, which analyzed the consequences of a further rightward shift on the Supreme Court. The original report and the 2001 update can be obtained at www.pfaw.org.