Not surprisingly, DeVos was immediately attacked. From her poor performance at her Jan. 17 nomination hearing to her preference for charter schools over public education and her Oct. 2 decision to rescind 72 policy documents on the rights of students with disabilities, DeVos has been a lightning rod. The campus sexual-assault speech was another opportunity for opponents to strike. On a call with activists convened in response to her speech a day later, former Vice President Joe Biden weighed in. Biden, who had been the force behind the Obama regulations, called supporters of the DeVos approach “culturally Neanderthals,” and told the activists they needed to stand up against people like “those Nazis marching” in Charlottesville.

Less predictable was the support DeVos received from other, traditionally liberal quarters. She won cautious applause from the editorial boards of the Washington Post, the Boston Globe and USA Today. Even more surprising, she is making common cause with some respected feminist law professors, major organizations of lawyers and even California Governor Jerry Brown, a progressive Democrat. On Oct. 15, Brown vetoed a bill designed to perpetuate the Obama regulations in his state, citing some “colleges’ failure to uphold due process for accused students.”

Most important, universities seeking to comport with the 2011 orders, which were adopted without the usual vetting by public notice and comment, have fared poorly when sued. Since 2011, accused males who say they were wrongly punished have been on the winning side of 69 judicial decisions–mostly preliminary rulings–and fewer than 50 have lost, according to my co-author, professor KC Johnson of Brooklyn College, an expert on campus due-process debates, who keeps a tally of lawsuits by students who say they were wrongly accused.

The Obama Administration’s actions on campus sexual assault were a textbook example of regulatory overreach. In the name of enforcing Title IX, it ordered thousands of universities to find an accused student guilty even if the evidence tipped only slightly (as by 51% to 49%) against innocence, impose sharp limitations on cross-examination of accusers and adopt “training” rules for campus courts.

AFT President: Betsy DeVos and Donald Trump Are Dismantling Public Education

After DeVos’ agency formally rescinded the Obama mandates with a stroke of a pen on Sept. 22, the Education Department announced that it would develop detailed replacement regulations for campus sexual-assault cases, publish them, invite public comments and then adopt final rules, probably by next fall. In the interim, it announced less-than-forceful guidance for schools on Title IX. In August, four feminist Harvard Law School professors wrote a joint letter to the Education Department urging reforms similar to those DeVos seems to be planning. But changing things on the ground will be a challenge at the many campuses that are steeped in presuming guilt.

Taylor co-authored, with KC Johnson, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books 2017)

This appears in the November 06, 2017 issue of TIME.

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One might have expected an aggressive response by House Republicans to such gross abuses of power — including subpoenas, tough oversight hearings, and corrective legislation. Instead, most of them have been mute. In the Senate, meanwhile, presidential candidate Marco Rubio of Florida, Judiciary Committee chairman Charles Grassley of Iowa, and rising star Kelly Ayotte of New Hampshire have teamed with Democratic demagogues Kirsten Gillibrand of New York and Claire McCaskill of Missouri in co-sponsoring a bill that would make matters even worse.

[Full text for story on National Review behind paywall]

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shows that his claim that his accuser consented to have sex is as credible as her often-revised account.
The Times’ coverage of the Winston controversy (and others like it) shows the nation’s most influential newspaper exemplifying bias in the Winston case in particular and on the issue of campus rape in general. It comes at a time when Winston will soon be back in the news due to the 2015 NFL draft and a forthcoming film on campus sexual assault, “The Hunting Ground,” which showcases his accuser’s public campaign against him while suggesting that the NFL should shun him.

The uncomfortable truth is that whether Winston committed a rape or whether his accuser is telling a false story cannot be established with confidence. This past December Florida State announced the results of its investigation of the accusation against Winston after a two-day hearing before retired Florida Supreme Court Justice Major Harding. He reviewed over 1,000 pages of evidence and legal arguments. Under university rules, the accuser needed to prove only that it was more probable than not that Winston subjected her to “any sexual act” without her consent or any other “sexual misconduct.” Harding found that the case against Winston did not meet even that low threshold. “I do not find the credibility of one story substantially stronger than that of the other,” he wrote, “or that this encounter was nonconsensual.”

The New York Times has devoted enormous resources to covering this controversy – more than 40 articles, including a 5,200-word piece by three-time Pulitzer Prize winner Walt Bogdanich — probing the legal processes that have cleared Winston. But the newspaper’s coverage has been characterized by the same selective and agenda-driven presentation of the facts it faults Florida authorities for exhibiting.

The accuser, anonymous until last month, has now publicly identified herself and told her story in “The Hunting Ground.” Her name is Erica Kinsman. In her version of events, she was not only raped by Winston but also mistreated by her university and the criminal justice system in order to protect a nationally famed athlete. This is what The Times’ coverage would lead readers to believe. But The Times has excluded a large body of evidence that undermines Kinsman’s credibility and supports Winston.

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The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court — in Seattle and metropolitan Louisville, Ky. — "are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students — especially poor blacks — hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

But unlike such preferences, race-based student assignment programs, if well designed, neither give minorities a systematic edge over whites nor displace merit selection by favoring less-qualified over better-qualified applicants. Two of our most thoughtful federal appellate judges — Michael Boudin of Boston and Alex Kozinski of Pasadena, Calif., both Republican appointees — have stressed these distinctions. In Kozinski’s words, school integration "gives the American melting pot a healthy stir without benefiting or burdening any particular group."

The Roberts opinion also minimized the vast gulf between the race-based measures at issue in these cases and the racial caste system that once oppressed descendants of slaves in the segregated South. And the chief justice exuded eagerness to block local and state officials around the nation, by judicial decree, from promoting school integration.

If this is judicial modesty, what would conservative judicial activism look like?

The liberals. The in-some-ways-apt critique of the decision from the four liberal dissenters was marred by apocalyptic rhetoric, mostly written by Justice Stephen Breyer, exaggerating what was at stake while hysterically accusing the conservatives of seeking to "break [the] promise" of "true racial equality" made by Brown.

To the contrary, the incremental integration produced by the two race-based student assignment plans before the Court was slight. More broadly, the justices’ power to advance, or retard, progress toward "true racial equality" is modest in today’s world. A broad social consensus against legal subordination of minorities coexists with stubbornly persistent racial inequalities in education. These inequalities have outlasted decades of liberal Supreme Court decisions, of forced busing (which led to white flight), and of other integration programs far more aggressive than those in place now.

The dissenters nonetheless seemed eager to give local officials wide latitude to tell school children, in effect, "You can’t come to this school because you are the wrong color." More broadly, their approach would perpetuate into generations yet unborn the system of racial preferences for certain minorities that pervades much of American life.

The balance-tipper. Justice Anthony Kennedy, the centrist conservative who cast the deciding vote, wisely whacked the Roberts plurality for implying "an all-too-unyielding insistence that race cannot be a factor" in government decision-making, for being "too dismissive" of the governmental interests in promoting "equal opportunity regardless of race," and for complacency about "de facto resegregation in schooling." On the other hand, Kennedy noted that the dissenters’ embrace of racial classifications and preferences had no "principled limit."

But Kennedy’s effort to identify the circumstances in which "pernicious" race-based assignments could be justified as a "last resort" opened him to the charge (by Benjamin Wittes, writing in The New Republic Online) that he "announces no coherent rule that any school system could apply with confidence that it will garner Kennedy’s vote in the future by doing so."

This is not just a failure of imagination on Kennedy’s part. I doubt that anybody could come up with a very clear rule for steering between the conservatives’ view that all race-based student assignment plans are unconstitutional and the liberals’ broad approval of such programs.

So what’s a moderate to do? Focus on the facts, in my view, and hope that a reasonably coherent rule will emerge through case-by-case adjudication.

Under the precedents requiring that even the most benignly motivated racial classifications be "narrowly tailored" to advance a "compelling interest," Kennedy was probably correct to strike down Seattle’s crude use of race. But he should perhaps have sent the Louisville program back to the lower courts to clarify the record rather than striking it down based on confusion about exactly how it worked.

The dissenters accurately stressed that Seattle had reduced its reliance on race over time, ending up with a program that allowed all students to choose among 10 high schools but denied some their choices in order to engineer a prescribed racial mix. But the result was a program that produced only marginal increases in integration.

The program did not even touch elementary or middle schools, where the benefits of integration would be most profound. It barely touched Seattle’s two poorest, nearly all-black high schools. And when it was suspended because of lawsuits, the racial composition of Ballard High School (for one) barely budged. Between 2000, when race-based assignments were used, to 2005, when they were not, Ballard went from 10.8 percent to 9 percent black; from 10.7 to 11.7 percent Latino; from 17.5 to 14.2 percent Asian; and from 56.4 to 62.3 percent Caucasian.

For such tiny gains, officials adopted a program with glaring flaws:

•It imposed serious burdens on individual children in pursuit of a social-engineering goal that did no other child much good. An honor student named Andy Meeks, for example, asked to be placed in and was qualified for Ballard High’s special Biotechnology Career Academy, which seemed the best place for him to thrive despite his attention-deficit hyperactivity disorder and dyslexia. But because he was white, he was denied his first choice (and his second, and his third) and assigned to a school that he could reach only by taking three city buses, with a round-trip commute of more than four hours a day.

•The district "has failed to explain why, in a district composed of a diversity of races, with fewer than half of its students classified as ‘white,’ it has employed the crude racial categories of ‘white’ and ‘non-white’ as the basis for its assignment decisions," as Kennedy stressed.

•The program invited manipulation by allowing families to change their self-selected racial designations in order to go to the head of the line for assignment to their preferred schools. And some schools clearly had academic programs that others lacked.

•The school district has blessed a K-8 "African-American Academy" that is designed to be almost all-black so as to "increase academic achievement." As Justice Clarence Thomas noted in a concurrence, "Of course, if the Seattle school board were truly committed to the notion that diversity leads directly to educational benefits, [this] would be a shocking dereliction of its duty to educate the students enrolled in that school."

•One "desegregation and diversity" bureaucrat provided a taste of the political correctness that pervades the Seattle school system by posting on the schools’ website (until a few months ago) assertions that only whites can be racists and that "cultural racism" includes "emphasizing individualism as opposed to a more collective ideology," "defining one form of English as standard," and "having a future time orientation."

•This PC mind-set may help explain why Seattle has never seriously explored the most promising — and legally bulletproof — way to promote integration without discriminating based on race. That is to give underprivileged students, who are disproportionately black and Hispanic, the opportunity to transfer to (mostly white) middle-class schools. (See my December 9, 2006, NJ column.)

All nine justices seemed equally uninterested in this socioeconomic-integration alternative, which is now used by some 40 school districts that educate about 2.5 million students. I hope that this does not reflect the complacency of some conservatives about the isolation of poor children in inferior schools. I also hope that it does not reflect the preference of some liberals for making politically correct gestures about race over finding solutions that work.

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Unlike most religious fundamentalists, these feminists were pursuing a careerist, self-serving agenda. This cause can put money in their pockets.

Summers’s suggestion — now ignominiously retracted, with groveling, Soviet-show-trial-style apologies — was that sex discrimination and the reluctance of mothers to work 80 hours a week are not the only possible explanations for gender imbalances in the math-science area. He noted that high school boys have many more of the highest math scores than girls, and suggested that this might reflect genetic differences. He also stressed the need for further research into all three possible explanations.

The foul brute may as well have rapped that women are "hos," or declared that they should be kept barefoot and pregnant. The most remarkable feminist exercise in self-parody was that of MIT biology professor Nancy Hopkins, who famously told reporters that she "felt I was going to be sick," that "my heart was pounding and my breath was shallow," that "I just couldn’t breathe, because this kind of bias makes me physically ill," and that she had to flee the room because otherwise "I would’ve either blacked out or thrown up."

Such fatuous feminist fulminations have been good fun, as have the eviscerations of Hopkins as a latter-day "Victorian maiden exposed to male coarseness, [who] suffers the vapors and collapses on the drawing room carpet in a heap of crinolines," in the words of George Will. (More on Hopkins below.) But most of the commentary has glossed over one important point:

For all its foolishness and irrationality, the feminist hysteria about Summers furthers the career agendas of feminists who seek thinly veiled job preferences or quotas for themselves and their friends. Such preferences are most easily justified as a remedy for male bias. And bias can more easily be blamed for gender imbalances if the possibility that more men than women are gifted with math-science brilliance is banished from public discourse.

This feminist-careerist agenda is conveniently ignored by the less hysterical critics of Summers, who make no claim that he said anything inaccurate but nonetheless reproach him for what a Los Angeles Times editorial portrayed as a gratuitous and insensitive ego trip. To the contrary, until his disgraceful capitulation to the power of political correctness, Summers was making a much-needed effort to break the self-serving feminist-careerist stranglehold on honest discussion of gender imbalances.

Summers had already been under pressure from the "huge majority of female professors at Harvard [who] recently formed a Caucus for Gender Equality to protest the drop in senior job offers to women" on his watch, as Ruth Wisse, a professor of literature at Harvard, wrote in a recent Wall Street Journal op-ed. "Offering no evidence of discrimination in hiring and not a single example of a superior female applicant overlooked in favor of a less qualified male, the caucus charged the president with having reduced ‘diversity’ by failing to hire enough female professors."

Harvard has already caved in to such pressure by requiring numerical records of how many women are considered at each stage of the faculty screening and selection process. Now that Summers has succumbed to feminist re-education, can numerical "goals" for hiring, promotions, and departmental chairmanships be far behind?

Inconveniently for preference-seeking feminists, scientific evidence shows that while women do better than men at certain verbal skills, men do better than women at some other intellectual tasks. These include visualizing three-dimensional subjects in space — essential to much engineering and science work — and mathematical reasoning. More than twice as many boys as girls scored in the top range (750-800) on last year’s SAT math test, for example. Among serious scholars, the only debate is about whether the pattern reflects acculturation or genetics. A substantial body of work suggests genetics.

In the November 2000 issue of Psychological Science, for example, a team headed by Vanderbilt University’s Camilla Persson Benbow summarized earlier research showing "sex differences in mathematical precocity before kindergarten"; "sex differences in mathematical reasoning as early as the second grade (among intellectually gifted students)"; and "pronounced sex differences in mathematical reasoning ability" in a 1980 study of 9,927 intellectually talented 12-to-14-year-olds.

New data collected 20 years later from 1,975 of these 9,927 people, the article said, showed "the predictive value" of early SAT scores "for identifying students with promise for math and science careers."

None of this is to suggest that men are biologically better suited than women (on average) for success in medicine, law, business, politics, journalism, liberal arts, languages, or the vast majority of other academic and professional fields. Indeed, some 57 percent of all four-year college degrees go to women. Nor is it to suggest that all mathematical geniuses are men, or that women cannot reach the top, or that sex discrimination has been completely eradicated.

But if most mathematical geniuses are men, as many studies suggest, then the fact that men still dominate the few academic fields requiring mathematical brilliance is not entirely attributable either to sex discrimination or to the reluctance of mothers to work 80-hour weeks. (This reluctance is itself seen by some feminists as a sign of discrimination, including society’s failure to pressure fathers to spend as much time with their kids as mothers.)

This is why so many feminists have personal stakes in silencing talk, and stigmatizing study, of possible gender differences in mathematical-reasoning ability. It was an awesome display of their power that lobotomized Summers — brilliant economist and possessor of the most prestigious post in all of academia. Amid serial apologies, he contradicted his January 14 remarks by swearing allegiance to the feminist dogma that "the human potential to excel in science" clearly has nothing to do with gender.

It is ironic that while shouting down any hint that men might be more capable than women in mathematics, many so-called "difference feminists" have long contended that women are morally superior to and more caring than men. This, says Daphne Patai, a former professor of women’s studies at the University of Massachusetts (Amherst), illustrates "the opportunism, inconsistency, and double standards that abound in contemporary feminism, often feebly justified by attacks on logic and reason as ‘masculinist.’ "

Boston civil-liberties lawyer Harvey A. Silverglate placed this episode in its larger context in a piece in the Boston Phoenix:

"The modern university is the culmination of a 20-year trend of irrationalism marked by an increasingly totalitarian approach to highly politicized issues. Students are subjected to mandatory gender-and racial-sensitivity training akin to thought reform…. Faculty members and administrators are made to understand that their careers are at risk if they deviate from the accepted viewpoint."

All copiously documented in The Shadow University: The Betrayal of Liberty on America’s Campuses, a 1998 book co-authored by Silverglate. All in the name of "diversity." And as Daphne Patai says, there is a "big payoff for throwing science to the winds and embracing feminist politics." Consider the same Nancy Hopkins who almost "blacked out" on hearing Summers speak. She became a feminist heroine in 1999 by finding — as chair of a committee to look into her own (and others’) complaints — that pervasive sex discrimination was the reason MIT had so few female science faculty.

The Hopkins committee’s report was eviscerated by professor Judith Kleinfeld, of the University of Alaska (Fairbanks) as an exercise in "junk science" by self-interested female faculty members. It "fails to prove gender discrimination on the MIT campus and amounts to little more than a political manifesto," wrote Kleinfeld in a 24-page report, adding that Hopkins "got a pay raise of 20 percent, triple the laboratory space, research funds, and numerous other benefits."

Also lionized was Robert Birgeneau, then the dean of MIT’s School of Science, who championed the Hopkins study. Since then he has risen like a rocket, becoming president of the University of Toronto five years ago and chancellor of the University of California (Berkeley) last year.

Who knows? Maybe Birgeneau — or better yet, Hopkins — will be the next president of Harvard.

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Indeed. That is the main reason why so little learning takes place at Anacostia, a part-time teacher there tells me. And nationwide, every year, some 30 students die of homicides committed on public school grounds; 10 percent of all teachers are physically threatened by students; and 4 percent are physically attacked. Student disruption of classes and defiance of teachers is routine at many schools. And such disorder is not confined to urban schools. Discipline is the biggest worry for suburban parents, too, surveys show. More than 40 percent of teachers nationwide agreed in one survey that "student behavior interferes with my teaching." Many complain that administrators don’t back them up on discipline. Some leave the profession in frustration. Cheating is rampant almost everywhere, and serious punishment rare.

An idealistic young English teacher named Richard Arum began studying the breakdown in school discipline sometime after one of his students was shot three times in 1991, in the courtyard next to his classroom at Castlemont High School, in East Oakland, Calif. Arum had been drawn to the overwhelmingly black school by sympathy for the civil-rights struggle.

Now an associate professor of sociology and education at New York University, Arum has produced a new book that lays much of the responsibility at the doors of the Supreme Court, of other judges who thought they understood education better than the educators, and of the idealistic "liberal advocacy lawyers" who pushed for students’ rights to challenge school discipline beginning in the 1960s. Such well-intentioned "adversarial legalism" has, Arum writes, led to "the intimidation of school personnel faced with an ambiguous legal terrain, and an undermining of the school’s moral authority," all to the detriment of "the ability of public schools to socialize youth for productive roles in society." These baleful trends were not "an inevitable byproduct of change in cultural mores" or demographics, Arum adds in Judging School Discipline. Rather, "liberal public school advocates" must face the reality that liberal judicial decisions unique to the United States have made our schools uniquely disorderly.

First came Tinker v. Des Moines School District, in 1969, in which the Supreme Court upheld public school students’ First Amendment rights to wear black armbands at school to protest the Vietnam War. The justices understandably saw the suspension of these students as an overreaction. But the justices displayed their grandiosity when they suggested that telling students to do their protesting elsewhere would make the schools "enclaves of totalitarianism."

Then came Goss v. Lopez, in 1975, which ruled in favor of (among others) students suspended for a few days for brawling in a school lunchroom and for attacking a police officer in a school auditorium, in Columbus, Ohio. All public school students have constitutional rights not to be suspended even for a single day without notice and a due process hearing, the justices held.

However reasonable Tinker might seem on its facts, and however informal might be the due process hearings demanded by Goss, the consequences have been far more profound than allowing some sartorial protests and requiring some hearings. They have inspired hundreds of lawsuits attacking schools’ authority over hair length, grades, dances, student-body elections, school newspapers, alcohol, drugs, violence, and weapons. And even though subsequent Supreme Court decisions sought to set limits to students’ litigiousness — by upholding corporal punishment, for example — the genie was out of the bottle.

What’s a principal to do if a gang of skinheads shows up wearing swastikas or T-shirts emblazoned with "WHITE POWER"? Are swastikas analogous to black armbands? Are shaved heads protected by precedents upholding students’ rights to wear their hair long? "The principal wants to send the kid home to change, but he’s not sure it’s within his authority to do so, so he calls the superintendent," wrote Kay S. Hymowitz in City Journal. "The superintendent is also unsure, so he calls the district’s lawyer. The lawyer’s concern, though, isn’t that the child has breached the boundaries of respect and tolerance, and needs an adult to tell him so, but whether disciplining the student would violate the First Amendment. Is this, in other words, literally a federal case?"

This legal uncertainty, which clouds every disciplinary decision with doubt and clogs educational systems with complex due process administrative rules, is only the tip of an iceberg of social instability. As consensus over once-unquestioned moral norms has broken down, judicial decisions have, for many, become the default source of moral instruction. So when the Supreme Court gives violent or disruptive students the constitutional right to sue their schools, it also gives them a sense of empowerment against all authority and saddles teachers and administrators with "hesitation, doubt, and weakening of conviction," in Arum’s words.

"The mere potential for a lawsuit shrinks the adult in the child’s eyes," as Hymowitz puts it. "The natural relationship between adult and child begins to crumble." Educators "hesitate to assert the most basic civic and moral values that might pose a challenge to the crude and status-crazed peer culture." And the language of right and wrong gives way to the language of legalisms, interspersed with therapeutic psychobabble.

Even when disciplinary decisions are upheld, the hearing process grinds down school officials and makes them gun-shy. "I’ve been named now three times in lawsuits," one principal recalled in a recent Public Agenda survey. "You go to these depositions and they’ll ask you about a conversation I had three years ago in the hallway. ‘Who was there? Who else heard? What exactly did you say? Did you keep any notes?’ I think it’s devastating."

Since the best defense to a complaint by an angry student or parent is rigorous compliance with "due process," teachers focus on documenting their reasons for even the mildest discipline of the worst actors, rather than on how best to teach the students who want to learn. And many teachers and administrators take the path of least resistance by condoning disruptive conduct rather than risking legal battles. One teacher told Public Agenda that he has become hesitant to break up student fights. In the old days, he said, "I was thinking about the kids," and about preventing injury. Now, he’s "more thinking of litigation."

Has all this made school discipline more fair? No. Comparative analysis shows, according to Arum, that in states where the courts have been most supportive of student rights against school authority, "students reported that school discipline was both less strict and less fair" (emphasis added).

Congress has also done much damage, beginning with its adoption in 1975 of the law now known as the Individuals with Disabilities Education Act. While justifiably vindicating the rights of wheelchair-bound and other disabled kids (including a onetime client of mine) to free public education, that law has also made it impossible to expel, and extremely difficult to discipline, any student diagnosed as having "serious emotional disturbance" — a concept broad enough to include just about any chronically disruptive child. Even kids who have sexually assaulted their teachers have been returned to their classrooms.

What is to be done? The mindless "zero-tolerance" policies produced by the backlash against disorderly schools have only made matters worse, by further undermining school officials’ discretion to use their common sense. Take the case of the 6-year-old who brought a pocketknife that her grandpa had given her to school in response to her teacher’s suggestion that kids bring something special that they cherished. "I had to suspend her for several days," a rueful administrator told Public Agenda.

Arum asserts that giving school officials completely unchecked power over students is not the answer. It is for the courts to make clear that they will intervene to ensure fairness only in "situations involving long-term exclusion or suppression of student First Amendment rights."

But it will not be easy to undo the damage. In a dissenting opinion, Justice Hugo Black warned that Tinker would subject "all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students." At the time, it appeared to many that the great civil libertarian had become an old fuddy-duddy. Now he seems more like a prophet.

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Such stories form the human backdrop to Zelman v. Simmons-Harris, perhaps the most momentous case pending before the Supreme Court and certainly the most important church-state case in many years. In a lively 80 minutes of arguments on February 20, the four more-conservative Justices and the perennially pivotal Sandra Day O’Connor seem inclined to uphold an Ohio law that provides tuition vouchers for Ebony and more than 4,000 other Cleveland children, most of them poor and black, to attend private schools.

The outcome is no sure bet, but O’Connor and the four other Justices were sharply skeptical of arguments by voucher opponents that because the vast bulk of the state voucher money goes to religious schools, the program amounts to an unconstitutional endorsement of religion. If the Court does uphold the Cleveland program, then it will remove the legal cloud over similar programs in Milwaukee and Florida, will clear the way for voucher programs elsewhere, and will put the focus on the large policy questions posed by these pioneering efforts to provide inner-city children with alternatives to failed public schools. There are two central questions: Are school choice programs good for the children whose parents so desperately seek vouchers? And are vouchers bad for those who remain behind in the public schools?

A growing body of evidence, while disputed and not yet conclusive, suggests that the answer to the first question is yes, and-more surprisingly-that the answer to the second is no. This calls into question the widespread assumption that voucher programs will make failing public schools even worse by draining their budgets and skimming off the most-committed students and parents. In fact, public schools in cities with well-designed voucher programs end up with more resources per pupil, because each voucher costs far less (a maximum of $2,250 in Cleveland) than the per-pupil cost of the public schools (more than three times as much). And several studies suggest strongly that the danger of cream-skimming is greatly exaggerated and-most important-that competition from voucher schools provides powerful incentives for failing public schools to improve.

A study of the Milwaukee voucher program "suggests that public schools have a strong, positive response to competition from vouchers," Caroline M. Hoxby, a respected Harvard economist, has written. She added that the "schools that faced the most potential competition from vouchers had the best productivity response." Accounts in the Milwaukee press suggest the same, as do studies of some other urban school systems facing competition from various school choice programs. Indeed, Spence Korte, superintendent of Milwaukee’s public schools, said in a television ad: "Like many other monopolistic operations, you get a little complacent when you’re the only game in town…. We needed to be able to compete, to really get better."

Even if closing off all escape routes for poor children had some chance of preventing inner-city schools such as Cleveland’s from becoming even more dreadful, it would be morally indefensible to deny decent educations to low-income children for the sake of the school system. Would you sacrifice your own children to dilute the dreariness of the worst public schools?

The strongest evidence that voucher programs benefit the children who use them comes from their parents. Most "tend to be much more satisfied [than public school parents] with their child’s school," says Kim Metcalf, a researcher evaluating the Cleveland program. The three Cleveland parents I interviewed-Eulanda Johnson, Roberta Kitchen, and Christine Suma-seethe at suggestions by voucher opponents that they are not smart enough to decide what’s best for their children. The voluble Kitchen, a gainfully employed college graduate who has raised five children abandoned by their mother, speaks eloquently of how private (religious) schools have taught her children more, given them more individual attention, made them safer, and exposed them to more racial diversity than the public schools, which are mostly black.

Empirical studies of voucher recipients’ academic progress, while mixed, offer some validation for the parents’ enthusiasm. "Although controversial, research generally shows positive effects for students using vouchers to attend private schools," the Brookings Institution concluded in a report last September. Voucher opponents attack such analyses and stress evidence suggesting that kids learn no more in voucher-supported schools than they would in public schools. But seven studies that seem fairly reliable have all found statistically significant academic progress for at least some subgroups of the voucher students, particularly African-Americans.

The Cleveland voucher program grew out of a 1995 ruling by a federal judge transferring control of the city’s school system-one of the nation’s worst-to the state of Ohio with instructions to remedy deficiencies amounting to a state of "emergency." One of the state’s earliest initiatives was to pass a law offering vouchers to low-income parents who wanted to move their kids to participating private schools or suburban public schools. The state has also sought to re-energize regular and magnet schools; has encouraged the formation of independently chartered "community schools"; has offered special $500 "scholarships" for private tutoring; and has pumped more money into the school system.

The vouchers cover 75 percent to 90 percent of the tuition at participating private schools, which can charge no more than $2,500 in all. Any participating suburban public school would get $6,544 from the state for each student from Cleveland. But none has ever agreed to participate. And only a small and shrinking number of nonsectarian private schools have participated, in part because it’s hard to cover costs with $2,500 per pupil and in part because the two largest nonsectarian schools dropped out of the voucher program to become community schools. (That made them eligible for about $4,500 per pupil.) The result is that since 1998, the percentage of voucher students and state money going to the religious schools has risen from 85 percent to more than 99 percent.

A federal district judge and a divided three-judge federal appellate panel stressed these percentages in striking the program down as a forbidden subsidy for religious instruction. This despite the history clearly showing that the program was created not for the sake of religious schools, but for low-income students; despite the availability of alternatives, including the community schools and money for private tutoring; despite the voucher program’s openness to nonsectarian schools in Cleveland and suburban public schools; and despite the fact that not a dime of state money goes to any religious school excepting those independently chosen by parents for their children.

The Bush Administration and a coalition of conservatives and centrists have urged the Justices to uphold the voucher program. On the other side, an array of liberal-leaning groups, spearheaded by the teachers unions, wants the Court to brand it an establishment of religion. Such a ruling would, in effect, drive thousands of poor kids back into failing public schools unless their low-income parents could come up with another $2,500 a year for tuition. Eulanda Johnson, for one, vows to take a second job if it comes to that.

The main legal hurdle for Justices inclined to uphold the voucher program is that they would have to mangle (or overrule) a 29-year-old precedent that voided a voucher plan in New York City. At least five Justices may be ready to do just that. They can cite a more recent line of decisions taking a benign view of government funding of programs that have the incidental effect of subsidizing religious activity, if the programs treat religious and secular groups neutrally and avoid any appearance of "endorsing" religion.

The Cleveland program easily passes the neutrality test. And it’s a stretch to see how this effort to help poor children becomes an endorsement of religion merely because almost all of the private schools currently willing to participate happen to be religious. Indeed, to cite that happenstance as a basis for snuffing out one of the few glimmers of hope in the desolate landscape of inner-city education would look a lot like discrimination against religion.

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Another burst of publicity-and more worries about threats to First Amendment rights-attended the University of New Mexico’s reprimand of professor Richard Berthold for opening his September 11 history class with what he later admitted to be a "stupid" remark: "Anyone who can blow up the Pentagon gets my vote." Berthold also received death threats. (See p. 188.)

It’s nice to see the media showing some concern for the freedom of speech. But where have they been during the past two decades of efforts coming from the politically correct Left-and especially from devotees of identity politics, racial preferences, and the male-bashing brand of feminism-to suppress unwelcome speech on our campuses and elsewhere? Examples:

Ward Connerly, the black California businessman who has campaigned across the nation to outlaw racial preferences, has been shouted down and drowned out so abusively as to cut short his remarks on at least five campuses since 1996, he recalls, including Atlanta’s Emory University in 1998 and the University of Texas School of Law in 1999. The consequence, he says, is that "it totally throws you off your stride. Freedom of speech is not just being able to complete your speech, it’s being able to speak without fear of personal harm being done to you…. I am not free to speak openly and honestly." College administrators, Connerly adds, "almost go out of their way to make me out as a monster, which incites the audience all the more." Taunts of "Uncle Tom" are routine and, more than once, Connerly notes, hecklers have threatened violence or announced menacingly, "We know where you live."

Linda Chavez, another leading critic of racial preferences, says: "I have been disinvited, harassed, shouted down, threatened, and [on one occasion] physically assaulted at campuses around the country," including the University of Northern Colorado and the University of Illinois (Urbana-Champaign). Chavez says that while the most-menacing hecklers appeared to be "street thugs" brought in from outside the campuses, students who join in "are being primed by the professors, being told that I’m the devil incarnate, that I want to do terrible things to Hispanics."

Christina Hoff Sommers, a trenchant critic of liberal feminism, was speaking as an invited panelist at a November 1 conference on preventing substance abuse, organized by the Health and Human Services Department, when some officials, academics, and others took offense at her doubts about a program called "Girl Power." A department official named Linda Bass interrupted and angrily ordered Sommers to stop talking about Girl Power. Later, Sommers said, Fordham University psychology professor (and paid department consultant) Jay Wade told Sommers, "Shut the f- up, bitch," amid mocking laughter from the crowd. Sommers, effectively silenced, left. "As Stanley Kurtz pointed out in National Review," Sommers notes, "if Catharine MacKinnon or Carol Gilligan had been treated that way in a government meeting, it would have been reported." Very widely.

But none of these efforts to silence Connerly, Chavez, and Sommers by heckler’s veto has ever been reported in any national newspaper, as far as I can find, excepting some coverage in the conservative Washington Times, a few opinion columns, Wall Street Journal editorials, and a passing mention of Connerly’s complaint deep in The New York Times. Nor have the national media paid much attention to the pervasive use of speech codes to chill politically incorrect expression on campus. They have likewise ignored the long-running epidemic of thefts of campus newspapers for carrying politically incorrect commentary or advertisements.

"University PR and spin has led too many of the media into a terrible double standard" in dealing with such heckler’s vetoes and other forms of censorship, says Thor L. Halvorssen, executive director of the Foundation for Individual Rights in Education Inc. (FIRE). "When it’s a conservative [being shouted down], the university will downplay this as a free speech protest, and the media will agree."

The Philadelphia-based FIRE was created two years ago by Boston civil liberties lawyer Harvey Silverglate and University of Pennsylvania professor Alan Charles Kors to protect free speech and other liberties on the nation’s campuses. And Halvorssen seethes with the same passionate indignation in denouncing censorial efforts coming from the political Right as those from the Left. But before September 11, he says, the campus censorship came mostly from the Left. And the big media were not interested.

"Close to three-quarters of the colleges and universities, private and public, have speech codes," Halvorssen stresses. "They are applied selectively, with a double standard depending on your blood and culture. I’ve never heard of a case of anyone being suspended or fired or expelled for insulting a born-again Christian. On a college campus, Andres Serrano’s photograph of a crucifix in urine, titled Piss Christ, is a work of art. Immerse a photograph of Martin Luther King Jr. in urine, and the sky would fall and the entire school would be put through sensitivity training. There is also a ferocious assault on due process and fairness on campus."

Administrators mete out discipline for offending remarks, for other alleged "harassment," and even for disputed charges of date rape with no semblance of a fair hearing. "We hear a lot of people talking about military tribunals," Halvorssen notes. "We have the equivalent on campus…. I see this stuff on a daily basis, and it is a real struggle to get it into the media. Speech codes, thought reform, due process-where have these folks been?"

Since September 11, with leftist critics of the war against terrorism complaining of efforts to intimidate and punish them both on campus and elsewhere, the media have paid a bit more attention-although, Halvorssen says, "it’s the equivalent of reporting on how many people are getting into the boats rather than reporting that the Titanic is sinking." The coverage has also been more balanced, if only because it would be hard to chronicle the punitive measures against anti-war leftists and Islamists without noticing that, on the campuses, efforts to silence forcefully hawkish statements deemed offensive by Muslims seem about as common.

The reporting on the Berthold "blow up the Pentagon" case, for example, has been paralleled by extensive coverage of a case at Orange Coast College in California in which Professor Kenneth Hearlson was suspended for 11 weeks without a hearing and threatened with dismissal after four Muslim students complained that he had called them terrorists and murderers in class. When other students produced tape-recordings proving this charge to be false, the college reprimanded Hearlson anyway, for accusing Muslims in general of condoning terrorism against Israel.

Meanwhile, the University of South Florida is seeking to fire Sami Al-Arian-a tenured Palestinian professor of computer science who is suspected (but not formally accused) of links to Islamic extremists-for courting publicity (amid dozens of death threats) about his views and controversial past. On the other end of the spectrum, a library assistant at UCLA was suspended for a week without pay for calling Israel an "apartheid state" in an e-mail. An Ethiopian student at San Diego State University was warned that he could be suspended or expelled for "harassment" after he had confronted and criticized a group of Saudi students for celebrating the destruction of the World Trade Center. And so on.

Many campus administrators, notes Halvorssen, bend according to "where the political winds are blowing." And now that some of the winds are blowing against the Left, even on a lot of campuses, the left-liberal Nation sees the danger. "The last generation’s wave of campus speech codes and anti-harassment policies," wrote David Glenn in December, "may have done more to suppress freedom than to remedy injustice in any meaningful way-and it may be only now, after September 11, that the full costs will become apparent."

The rediscovery, by some in the media and the Left, of the case for free speech makes FIRE’s Halvorssen optimistic about the future. But will politically powerful conservatives-some of whom have become First Amendment stalwarts while seeing their own oxes gored by campus censors-prove equally selective in their devotion to free speech? "We have to be careful," says Christina Hoff Sommers, "not to play by the rules written by the intolerant Left."

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This was about one-sixth true. It is, of course, absurd to pretend that any change in the admissions process would help all students; Atkinson’s proposal would hurt exactly as many as it would help. Nor would dropping the SAT necessarily be a net gain for low-income students. Instead, it would increase the power of the same university bureaucrats who used to admit black and Hispanic applicants ahead of low-income Asians and whites with higher SAT scores. California banned such racial preferences a few years ago, which is why the SAT is under attack now.

Nor would Atkinson’s proposal help all minority groups. The biggest losers would be Asian-Americans, whose spectacular SAT scores and academic successes belie the notion that the SAT merely reinforces the advantages of wealth and status. And surprisingly, according to a 1998 study by the UC admissions office, dropping the SAT would lower, not raise, the number of African-Americans admitted to UC’s eight campuses, because the brightest black applicants tend to do better on the SAT than on their high school grades. The assumption that dropping the SAT would mean more black admissions appears based on the expectation that it would clear the way for covert reintroduction of racial preferences.

Atkinson is the intellectual leader of an SAT-bashing movement that has gained a lot of political clout in response to referenda and court decisions rejecting racial preferences. So his complaints are worth examining: 1) "Leaders of minority communities perceive the SAT to be unfair," because blacks and Latinos do worse on average than other racial groups. 2) The SAT can have "a devastating impact on the self-esteem and aspirations of young students." 3) Many affluent parents try to give their children an advantage by enrolling them in SAT prep courses. 4) Some secondary schools overemphasize SATs by teaching to the test, as in one private school where 12-year-olds spent hours "studying long lists of verbal analogies." 5) And the SAT’s quantification of "undefined notions of `aptitude’ or `intelligence’ " has no clear relationship to high school curricula and is given undue weight by admissions departments.

The first four complaints are unconvincing. First, although many black and Hispanic leaders say the SAT is unfair, this claim cannot withstand analysis-not, at least, as long as one assumes that the admissions process should prefer those applicants who are deemed most likely to do well in college. The success of Asian-Americans proves that the SAT is not biased against minorities in general. And data devastate the claim that the SAT is biased against black students. In statistical comparisons of black and white college students with similar SAT scores, the black students have consistently performed worse on average in the classroom than their white counterparts.

The problem for African-Americans is not the SAT. It is inferior education before they get to the SAT. Beyond that, it is the terribly self-destructive disdain for academic effort ("acting white") manifested by many black students, including a lot of bright middle-class black kids from good schools.

Second, there is no reason to think that teen self-esteem suffers more damage from SAT tests than from any other high-stakes competitions faced by high school kids. Choosing among masses of applicants to a selective university is an unavoidably crude, cruel, and sometimes arbitrary zero-sum game. Some students will always have to cope with bad grades, low scores on achievement tests, lack of athletic talent, and the realization that they will never get into a first-rate college. Unless we abolish selective colleges, a lot of kids are going to have to deal with the reality that they are not all above average.

Third, although some affluent students do get a modest boost on the SAT from prep courses, they enjoy far greater advantages on other tests that Atkinson wants to keep: standardized tests (including the SAT-2 tests) that evaluate students’ mastery of academic subjects such as American history and writing. With better schools, better teachers, calmer classrooms, and more homework, affluent kids are far better prepared for these achievement tests than less-privileged students. So dropping the SAT in favor of achievement tests would do little or nothing for low-income students. Indeed, the one test that was created in large part to foster admission of the most promising low-income students is the SAT-which has been a brilliant success at opening colleges’ gates to students of exceptional academic potential, no matter their background.

Fourth, the verbal analogy drills for 12-year-olds that so dismayed Atkinson can also be seen as teaching a skill that will be valuable long after the student is finished with the SAT. The skill is logical analysis, of which analogical reasoning is a crucial component. No doubt, some schools do spend more time than they should on analogies-and no doubt, others spend more time than they should on Thomas Jefferson, Harriett Tubman, past participles, or quadratic equations. Big deal.

Atkinson’s final point has more force. Although decades of market testing and studies have confirmed the SAT’s value as a common yardstick for measuring the academic potential of students from widely varying high schools, some colleges probably do give SAT scores undue weight, whether to save time and expense or to improve their rankings in college guides. This is unfair to the many people with stunning intellectual gifts and other talents who don’t do well on the SAT.

The logical solution to this problem, however, is not to drop the SAT entirely, but to give it less weight in the mix of qualifications-grades, achievement tests, athletic and musical talents, teacher recommendations, application essays, and more-that admissions officers evaluate. At Atkinson’s University of California, SAT scores account for only about 15 percent of a student’s eligibility rating. If that is too much, UC can drop it to 12 percent, or to 10 percent.

"In America," Atkinson stressed, "students should be judged on what they have accomplished during four years of high school, taking into account their opportunities." True. But UC (like others) already takes account of differences in opportunities. It gives breaks to promising students from underprivileged backgrounds and guarantees a place to all whose grades put them in the top 4 percent of their high school classes. These policies strike a healthy balance between egalitarianism and meritocracy. But Atkinson seems to want to carry egalitarianism to the self-destructive extreme of pretending that verbal and mathematical ability have no relevance to academic potential, and of having the university avert its eyes from very large differences between the academic aptitudes of otherwise similarly qualified applicants.

To be sure, the short-term change proposed by Atkinson-dropping the SAT and retaining standardized achievement tests-might have little practical impact. But it would also do little to further Atkinson’s egalitarian goals, unless the university ultimately drops, or de-emphasizes, all standardized tests. Perhaps that’s why Atkinson’s long-term plan is to "move away from admission processes that use narrowly defined quantitative formulas, and instead adopt procedures that look at applicants in a comprehensive, holistic way."

And what would take the place of such "quantitative formulas" in this brave new holistic world? Subjective evaluations by university bureaucrats, it appears. Very subjective: Atkinson wants admissions officers to "look at the full range of [students’] accomplishments within the context of the opportunities they enjoyed and the obstacles they faced," and to "make judgments about what individual applicants might contribute to campus life and, later, to society." That sounds like a formula for giving university bureaucrats virtually unlimited discretion to prefer the applicants they deem most deserving based on the admissions officers’ personal tastes, political priorities, or, more likely, their unwritten marching orders.

Atkinson’s immediate goal may be to reintroduce racial preferences through the back door by taking advantage of the opportunities for covert discrimination and for lowering academic standards that are inherent in any subjective evaluation process. But such social engineering at the expense of academic standards would not stop there. Once liberated from SAT scores, university bureaucrats might judge your child’s worthiness on the basis of her family background, her talent for 10-minute interviews, her "special and worthy career aspirations" (to borrow from Harvard Law Professor Lani Guinier, another SAT-basher), her enthusiasm for multiculturalism, perhaps even her religious affiliation or political beliefs.

Yes, SAT scores can have an arbitrary impact. But the alternatives are worse.

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Gore’s warning was an exaggeration, to say the least. In fact, six of the nine current justices have supported fairly broad abortion rights. Still, Bush chose to downplay the decision, wary of being dragged into an abortion brawl that could put him on the wrong side of public opinion, sending moderate voters–especially women–fleeing. But he couldn’t avoid the matter entirely: Bush issued a terse statement saying he would “fight for a ban on partial-birth abortion.” Later in the week he cut a deal to keep the GOP’s hard-line anti-abortion plank in the party’s platform.

All week, the slew of decisions and emotional dissents handed down from the red-draped chamber of the Supreme Court reverberated across the country. The justices curbed the rights of anti-abortion protesters, allowed the Boy Scouts of America to bar gay men as Scoutmasters and reaffirmed that police must keep reading suspects the famous Miranda warnings. In some cases–including a decision allowing public money to be used to buy computers and books for parochial schools–the conservative justices won. Yet the court clearly demonstrated that it is hardly the cadre of rigid conservatives some in the press make it out to be. In several recent rulings, the justices seemed downright liberal, as in their unpopular decision barring student-led prayers at public-school football games.

The nine justices are often said to be split into two ideological camps: the five conservatives versus the four liberals, which helps explain why the court is so often divided 5-4. But, in fact, two of the so-called conservatives–Sandra Day O’Connor and Anthony Kennedy–are relatively centrist, usually taking positions remarkably in sync with (and sometimes to the left of) public opinion. Shifting alliances are common, with conservatives joining liberals in high-profile cases. In one, the court struck down an act of Congress curbing sexually explicit cable-television programming that might be seen by children. In another, it stressed that “grandparents’ rights” laws can’t interfere with a parent’s rights to raise his or her children.

In the middle of an election year, last week’s decisions were an abrupt reminder of just how quickly, and unpredictably, the Supreme Court can upend the social landscape–and how big an impact the next president could have in influencing the court’s direction. The most controversial of the opinions, partial-birth abortion and Boy Scouts, resulted in familiar 5-4 splits between the court’s more liberal and more conservative members, except that in the abortion case, the five votes came down on the liberal side. That tenuous, one-vote balance of power could soon change. In the next four years it is likely that one or more of the current justices will retire, giving the next president at least one court pick. If that happens, a single strategic appointment–Gore replacing a conservative with a liberal or Bush swapping a liberal for a conservative–could decisively tip the court to the left or right. The last time the court was at such a tipping point was 1987, when Justice Louis Powell, a moderate, retired. Ronald Reagan nominated Robert Bork, a strong conservative who would have shifted the court dramatically to the right. But the Senate rejected Bork and eventually confirmed the more moderate Kennedy. This time, a new justice could be the fifth vote to entrench affirmative-action preferences or wipe them out; uphold tuition vouchers for religious schools or rule them unconstitutional; expand abortion rights or reinstate late-term restrictions.

Political professionals say that, despite its obvious importance, the composition of the court remains a little too abstract, a little too hypothetical, for most voters trying to pick a president. A NEWSWEEK Poll shows just 36 percent of voters consider Supreme Court nominees “very important” in choosing a candidate. Even so, with the public loudly complaining about how hard it is to tell Bush and Gore apart, the Supreme Court may yet emerge as the campaign’s sleeper issue, and one that most clearly defines what the candidates stand for in the minds of many moderate Americans. Bush has said that he would nominate only “strict constructionists” to the bench, justices in the mold of Antonin Scalia and Clarence Thomas, the court’s two most ardent conservatives. Gore, meanwhile, has said his judicial role model is the late Justice Thurgood Marshall, one of the most liberal, activist judges in the court’s history. The candidates’ ideas about what makes for a good justice are starkly different, and show just how dramatically a single robe change could alter the law of the land on the most difficult–and important–issues in America, perhaps for decades to come.

RACE

A One-Vote Swing Could Break the Logjam
In recent years the Supreme Court has taken on few controversial racial-preferences cases, though several have come over the threshold. Why? The current nine justices are sharply split on the issue. The court’s conservatives–Chief Justice William Rehnquist and Justices Kennedy, Scalia and Thomas–usually vote to strike down racial preferences both in government programs and in race-based election districts. On the other side, the court’s more liberal justices–John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer–believe preferences are still necessary to make up for a legacy of discrimination. That has left one justice in the middle: O’Connor, who is conflicted on the issue. She has cautiously curbed affirmative-action programs, and voted to strike down some racially gerrymandered election districts. But she has not been as firmly opposed to preferences as her more conservative colleagues. Unable to figure how O’Connor might come down on such cases, the other justices seem reluctant to take them on–perhaps because both the liberal and the conservative factions are worried that she’ll vote with the other side.

Without strong direction from the court, racial-preference laws are enforced unevenly. Public universities in most states continue to use racial preferences in admissions–but not in Texas, Oklahoma and Louisiana, where a federal appeals court ruled the practice was unconstitutional. When the University of Texas filed an appeal, the Supreme Court refused to take the case. A one-vote swing could break the logjam, either putting the court firmly behind affirmative-action preferences or putting such measures in danger of extinction.

RELIGION

Putting Church and State in the Balance

The court has been far more decisive about prayer in school. Two weeks ago it knocked down attempts by a Texas high school to have an elected student lead a prayer before football games. The decision extended a line of rulings since 1962 barring state-sponsored school prayer. But the justices had a harder time agreeing where to draw the line on another hot issue: government aid for parochial schools. In last week’s decision, which allowed public funds to pay for computers and books to be used in religious schools, the court was closely split. Four of the justices in the majority, Rehnquist, Scalia, Kennedy and Thomas–argued for opening the door wide to government support for religious schools and organizations, as long as similar secular groups receive the same benefits. In a forceful dissent, Stevens, Souter and Ginsburg criticized the conservatives’ opinion as radical and unconstitutional. O’Connor, joined by Breyer, agreed with the conservatives that government money could be used to buy things like computers and books for secular instruction; but in a separate opinion, they sided with the more liberal dissenters’ argument that directly supporting religious activities would be blatantly unconstitutional. In the future, O’Connor and Breyer signaled they would oppose any parochial-aid program that, in their eyes, jeopardized the wall between church and state. Add a strong Gore liberal or Bush conservative to the mix, and many church-state issues–including the constitutionality of tuition vouchers–could be up for grabs.

FEDERAL POWER

Has Congress Become Too Powerful and Arrogant?
The court’s five most conservative members have hung together most conspicuously in their efforts to limit congressional power over state matters. This year, for example, the court struck down a law allowing victims of rape and domestic violence to sue their attackers in federal court, ruling that crime and punishment in such local criminal cases should be settled by the states–without interference from the federal government. In a different kind of states’ rights case, the court also barred Congress from allowing state employees to bring federal age-discrimination suits against the states they work for. In 1997 it ruled Congress violated states’ rights when it required local sheriffs to help enforce the Brady gun-control law.

The court’s more conservative members believe Congress has become too powerful and arrogant, enacting laws that disregard the Constitution and are “downright bizarre,” as Scalia put it in an April speech. Since 1992 the court has struck down some 10 federal laws in an attempt to confine Congress to the specific powers spelled out in the Constitution. Yet the future of this conservative cause could well rest on the next president’s appointees. A conservative replacing a liberal would create a more solid core of six justices sympathetic to states’ rights. But a liberal replacing a conservative would bring Rehnquist’s string of 5-4 victories to an abrupt halt, shifting power back to the Capitol.

ABORTION

Roe v. Wade in the Cross Hairs: An Elusive Target
Despite Gore’s dire warning that one more conservative on the court would spell the end of Roe v. Wade, abortion rights are probably safe for at least the next four years, no matter who wins the White House in November. Last week’s ruling protecting partial-birth abortions was 5-4, giving Gore the opportunity to fan fears that abortion rights were hanging by a single vote. In reality, only three of the nine justices would overrule Roe. Kennedy, a Roe supporter, sided with the anti-abortion conservatives last week because, as he wrote in his dissent, many “decent and civilized people”– including some pro-choice moderates like Kennedy–find this particular late-term procedure “so abhorrent as to be among the most serious of crimes against human life.”

In cases involving earlier-term abortions, Kennedy has sided with the five other pro-choice justices, which means Roe defenders have a solid 6-3 majority. In order for Gore’s abortion scenario to come true, Bush would have to win the election, hope that two pro-choice justices retire, pick two ardent pro-life nominees and then get them through ferocious Senate confirmation battles. If all those things were to happen, then the court might overturn Roe–leaving it to the states to allow or prohibit abortion. But don’t lose too much sleep–or get too excited–just yet.

GAY RIGHTS

A Very Fine Line on Discrimination
The court has never granted gays and lesbians the same broad protection from discrimination that racial minorities and women have had for decades. Yet at least six of the current justices are sympathetic to gay rights. In 1996 the court expanded the rights of homosexuals when it struck down an amendment to the Colorado constitution that barred the state and local governments from punishing landlords and employers who discriminated against gays. Last week’s 5-4 decision allowing the Boy Scouts to ban gay leaders was portrayed as a step in the opposite direction. But the decisions were actually consistent. In last week’s case, the court ruled that the Scouts–a private group protected under the First Amendment’s freedom of association–could exclude gays as Scoutmasters since their very presence would send a message contradicting the group’s belief that homosexuality is immoral. In the eyes of the court, that’s far different from the government discrimination in the Colorado case. “It appears that homosexuality has gained greater social acceptance,” wrote Rehnquist in the court’s ruling. “But this is scarcely an argument for denying First Amendment protection to those who refuse to accept those views.” Another liberal on the bench, however, and the scales would have tipped the other way–expanding homosexual rights and making it more difficult for groups to use freedom of association as an excuse to discriminate against gays.

Encouraged by last week’s decisions, Gore is now preparing to make the Supreme Court a centerpiece of his campaign, despite jittery aides who think the topic might be a dud with the public. “It’s a hard issue,” says one adviser. The political pros “just don’t see it.” Gore wants to deliver a major speech on the court sometime in the next couple of weeks, using the opportunity to paint a nightmarish picture of what a Bush-packed court would mean for America. It’s a pitch aimed directly at the millions of undecided women and swing voters who fear a right-wing court. Liberal groups like People for the American Way and the National Abortion and Reproductive Rights Action League will bolster the message with ad campaigns pushing the court as an issue.

The Bush camp would rather change the subject. The candidate has remained vague on the issue of the court, saying little more than he doesn’t believe in “legislating from the bench.” After last week’s opinions, some conservative strategists began urging Bush to find a way to take the offensive–trying to make Gore look heartless for championing the unpopular late-term abortion procedure, or depicting him as a liberal who’d pack the court with Constitution-trashing justices. But for now, Bush is reluctant to be drawn into a war of words over nominees, a fight that could scare moderates he needs to win the White House. He understands the danger: talk too loudly now about the justices he wants, and he may never get the chance to appoint them.

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