Court to tackle vouchers, executions

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  Feb. 15, 2002 at 2:13 PM
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WASHINGTON, Feb. 15 (UPI) -- The Supreme Court moves back to center stage next week, ending its mid-winter hiatus to deal with such high-profile issues as student vouchers and the execution of the mentally retarded.

The justices last sat in their courtroom on Jan. 22. Their schedule, which begins Tuesday after the Presidents' Day holiday, leaves them little room to ease back into their routine.

The justices will hand down an orders list Tuesday, saying which handful of cases they have accepted for argument and rejecting hundreds of others. They also are scheduled to hand down decisions Tuesday and Wednesday.

One of the most important cases of the term -- one that will determine the constitutionality of school vouchers used for religious schools -- will be heard Wednesday.

The outcome of the case, with a Supreme Court ruling within the next several months, almost certainly will determine the fate of President Bush's sweeping proposal for a national school voucher program.

Actually, Wednesday's case is a combination of three earlier cases, all involving a pilot voucher program in Cleveland.

In the mid-1990s, the Cleveland schools were in crisis, by everyone's measurement. In 1995 the substandard conditions of the schools became so obvious a federal judge overseeing a Cleveland desegregation case ordered the state superintendent to take over control of the local school district.

Ohio's General Assembly then adopted the pilot voucher project, applying it to any school district taken under the jurisdiction of a federal court. As it turned out, Cleveland was the only Ohio school district that met that criterion.

The state program gives private school scholarships to Cleveland school district children from kindergarten through the eighth grade, and requires participating private schools to cap their annual tuition at $2,500.

For low-income families, the program provides 90 percent of the costs of going to a private school. If money is left over after low-income families apply, the program pays 75 percent of the costs for other families applying, regardless of income.

For the 1999-2000 school year, 3,761 students enrolled in the program; 60 percent were from families at or below the poverty level.

Though the program was designed to give scholarships to non-sectarian and sectarian schools, more than 99 percent of those participating in it used the money to attend religious schools.

Of the 56 schools registered to participate in the program for the 1999-2000 school year, 46, or 82 percent, were religious. A federal appeals court noted "the handbooks and mission statements of these schools reflect that most believe in interweaving religious beliefs with secular subjects ... (include) instruction in religion ... interweaving Christian doctrines with science and language art classes .... "

In one of the cases accepted by the Supreme Court, the parents of public school children and a church pastor filed suit in July 1999 against the program, saying it violated the separation of church and state. Eventually, a federal judge issued a preliminary injunction against the project, saying it violated the First Amendment's establishment of religion clause.

Last December, a divided appeals court panel ruled 2-1 the program violates the Constitution because it "has the primary effect of advancing religion" and "constitutes an endorsement of religion and sectarian education."

The school district and Ohio officials then asked the Supreme Court for review. The case then was combined with two others involving the same challengers.

Also Wednesday, the high court will hear argument on the constitutionality of executing the mentally retarded. At issue is whether the execution of mentally retarded killers violates the Eighth Amendment's ban on cruel and usual punishment.

Thirty-eight states have death penalties, but 15 of those states specifically do not execute the mentally retarded. Texas almost joined that number, but Gov. Rick Perry vetoed a ban passed by the state Legislature last June.

Virginia is not one of the 15, though as of this writing its Legislature was debating such a ban.

In any event, the case accepted by the Supreme Court involves Daryl Renard Atkins, who was convicted of robbing and shooting to death Eric Nesbitt, at a convenience store in York County, Va., in August 1996. Atkins and a friend had been "drinking and smoking weed" and were looking for more spending money, according to court records.

Nesbitt was kidnapped, forced to use his bank card and then killed in a wooded area.

Atkins was convicted and sentenced to death. After his death sentence was reversed by the Virginia Supreme Court on a technicality, he was again sentenced to death by a state judge who found him a continuing threat to society.

In his petition to the Supreme Court, Atkins's court-appointed lawyers point to his intelligence scores. "Pretrial intelligence testing of Daryl Atkins showed that had ... (an) IQ of 59 .... The state's mental health expert testified that the testing and resultant IQ scores were correct."

Even before the justices hear the school voucher and death penalty cases Wednesday, they are scheduled to hear a high-profile case Tuesday dealing with drug use in public housing.

The Supreme Court will try to determine whether the Department of Housing and Urban Development can kick people out of public housing if any member of the household uses drugs, whether the tenant knows about it or not.

A lower court has said no, ruling in favor of four elderly tenants who were in the process of being evicted from public housing in Oakland, Calif.

Federal law requires public housing leases to contain a clause saying "any drug-related criminal activity on or off premises engaging in by a public housing tenant, any member of the tenant's household or any guest or other person under the tenant's control, shall be cause for termination of tenancy."

The four tenants were the targets of eviction proceedings in state court in late 1997 and early 1998.

After the eviction proceedings began in state court, the four filed suit against HUD in federal court. They asked a federal judge for an injunction preventing eviction of an "innocent" tenant.

A federal judge issued the injunction, saying eviction in these circumstances would be "irrational" and therefore unconstitutional.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals reversed the judge, but the full circuit court reversed the panel by a 7-4 vote. The majority said HUD was misinterpreting Congress's intention when it passed the law.

Acting for HUD, the Justice Department then asked the Supreme Court for review. The appeals court itself acknowledged that many "of our nation's poor live in public housing projects that, by many accounts, are little more than illegal drug markets and war zones," the department told the Supreme Court.

The appeals court ruling "neutralizes an important tool that Congress designed to assist in ridding public housing of the scourge of drug-related criminal activity."

The Supreme Court should hand down a ruling within the next several months.

(No. 00-1751, Supt. Zelman et al vs. Simmons-Harris et al; No. 00-1777, Hanna Perkins School et al vs. Simmons-Harris et al; and N0. 00-1779, Taylor et al vs. Simmons-Harris et al)

(No. 00-8452, Atkins vs. Virginia)

(No. 00-1770, HUD vs. Rucker et al)

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