Joan Biskupic reaches the wrong conclusion in "Maine School Voucher Law Stands" [news story, Oct. 13].

She wrote, "Lower courts wrestling with various school funding programs have issued conflicting opinions on the proper constitutional boundary between church and state, but the high court has shown little inclination to enter the fray."

In Mueller v. Allen (1983), the court upheld the constitutionality of Minnesota's tuition tax credit program, which included religious schools. In Witters v. Washington Department for the Blind (1986), which I argued, the court unanimously held that it was not a violation of the Establishment Clause to include ministerial students at religious colleges in a state-funded program of educational subsidies for the blind. And in Zobrest v. Catalina Foothills School Dist. (1993), the court held that allowing state-paid sign-language interpreters to be assigned to students in religious schools did not violate the Establishment Clause.

When Witters was remanded to the Washington State Supreme Court, the issue of whether the state constitution banned aid to students in religious schools remained. I argued that it did not, but if it did then the state constitution violated the Free Exercise and Equal Protection clauses. I lost, and the U.S. Supreme Court refused to hear the appeal.

The lesson of Witters was that including students in religious schools in a choice program open to all does not violate the Establishment Clause. But the court will not force states to include religious schools in such programs if state law doesn't permit it.

Thus the Maine decision cannot be read to say that it is unconstitutional to include religious-school students in choice programs. Nor is it fair to say the Supreme Court is ducking the issue. The issue has been settled.


Purcellville, Va.