The officer (A. Hicks was the name on his badge, and if you’re reading this, Police Chief Charles Ramsey, the man deserves a raise) was as friendly as he could be, but, unfortunately, he didn’t have many answers. He didn’t know what we were being charged with; he didn’t know where we were being taken; he didn’t know how long we’d be there. In fact, he didn’t even know for sure whether I was under arrest. “I’d say it looks like you’re under arrest” was all he had to say when I asked.

In his defense, I’d say that that was a pretty good answer. I was never formally charged and I left police custody the next morning without entering a plea. The receipt I have for the $50 I paid to the D.C. police says that I forfeited collateral on a “parading without a permit” charge, an offense that is, according to the New York Times, smaller than a misdemeanor. On the other hand, I spent 16 hours handcuffed on a school bus without food, water or access to a restroom. It did look as if I was under arrest — but I still have no idea whether I really was.

There was one thing that the officer did know: that he had no responsibility to read us our Miranda rights. “That stuff,” he said, “is only in the movies.” And as of this weekend, he was absolutely correct.

The Miranda warning (“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.”) became the law of the land in 1966 with Supreme Court Chief Justice Earl Warren’s decision in Miranda vs. Arizona. Last year the notoriously conservative 4th U.S. Circuit Court of Appeals reversed the Supreme Court decision, saying that it was superseded by a relatively obscure 1968 federal law called Section 3501. On Wednesday, the Supreme Court will consider the court of appeals’ decision and, by the end of the summer, vote Miranda up or down.

Having recently spent an evening in our increasingly prosecutorial justice system for doing nothing more than protesting said prosecutorial justice system, I now know that Miranda matters. My brief to the honorable justices of the Supreme Court is simple: Maintain Miranda.

When Miranda was still law, the warning occupied a crucial, if primarily symbolic, position in our legal system. In four simple little sentences, it reminded police officers that the Bill of Rights existed and let the accused know that those crucial amendments to our Constitution (particularly the Fifth, which guarantees due process of law) pertained to them. Today, both the police and the accused need the reminder.

These days, the scales are tipped all the way to the right, and police and prosecutors have a headlock on the power in criminal cases. In New York, a city governed by a mayor who speaks proudly of his professional experience as a prosecutor, kids who jump subway turnstiles routinely spend the night in jail before they are arraigned. You can be tossed into a holding pen for walking next to somebody who is smoking a joint. And, as is well known by now, in certain circumstances a black man reaching for his wallet can become a target for police gunfire. The rest of the country isn’t far behind New York on this score. In our zeal to fight crime, we have, as a nation, willfully forgotten about our civil rights. It’s time to restore the balance.

Upholding the Miranda decision is one important way to do so. The warning gives the police pause and tells prosecutors that they aren’t all powerful. Although between 80 and 90 percent of all defendants waive their Miranda rights, even when they are read, the warning tells people that they shouldn’t be tricked or intimidated into making an unwise confession.

Upholding the Miranda decision may also mean that some guilty criminals will get off without serving time, as the law-and-order opponents of the decision maintain. But, of course, nobody gets off if everybody’s rights are observed.

Would my experience in D.C. have been any different if my arresting officer had read me the Miranda warning? Probably not. Ramsey had decided that he wanted us off the streets and he was willing to damn the consequences; four annoying sentences weren’t about to get in his way. Plus, we were never charged with a crime and were never questioned, so forced confessions were not really an issue.

Another cop I spoke with while I was in custody told me about the 1971 May Day arrests in D.C. He was a rookie on the force then, instructed to arrest anybody he found walking downtown on the day that Vietnam protesters vowed to bring the city to a halt. He and his colleagues arrested 14,000 people, hauled them off to RFK Stadium and held them for three days without charges. Miranda was in effect then, but the protesters went through the same song and dance that I did. Like me, they were pulled off the streets because the police didn’t want any trouble and not because they had broken any laws. And, like me, they eventually walked away with nothing more than a deeper understanding of the system’s flaws.

But they had been read their rights. They knew that they were under arrest and they knew that the arrest was wrongful. Eventually, they won a $14 million class-action lawsuit against the city. Sounds like the kind of happy ending that happens only in the movies.

Hypocritical horndog Clarence Thomas joined Antonin Scalia concurring in the decision but “disagreed with the mode of analysis.” Thomas dittoed Scalia that nude dancing is not protected expression: “There is no need to identify ‘secondary effects’ associated with nude dancing that Erie could properly seek to eliminate. The traditional power of government to foster good morals, and the acceptability of the traditional judgment that nude public dancing itself is immoral, have not been repealed by the First Amendment.” Plus G-strings will keep those pesky pubic hairs off your Coke.

In his dissent, John Paul Stevens (joined by Ruth Bader Ginsburg) jumped on the absurdities like a lap dancer. “In what can most delicately be characterized as an enormous understatement,” he wrote, “the plurality concedes that ‘requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects,’” such as increases in crime, prostitution and sexually transmitted diseases.

How did the justices determine that fabric slivers would save our neighborhoods and were worth limiting freedom of speech? Did they “know it when they saw it” — or had they even seen it?

To gauge the expression of All Nude Girls, I decided to take in their symbolic speech myself. Unless I saw, I would never know if communication of a bare nipple is muffled by a tiny doily or a mohawk of pubic hair by a thong. I wondered if any justices had used the ruling like I did, as a good excuse for their first visit to a strip club.

I invited my friend Karen, who had been to stripper bars before, and my friend Julia, who had not. We picked a “Gentlemen’s Club” in downtown Washington with no cover or drink minimum. As we waited in line, I asked the chatty doorman about the Supreme Court ruling, and he quickly answered, “It’s expression as far as I’m concerned.” He then defended the stripping biz with logic as twisty as O’Connor’s: A) His day job is teaching autistic children, so B) he’s a good guy, so C) strip clubs must be OK.

As we walked in, a wholesome redhead named Angel was swinging her bare moneymaker around the tiny stage, a 5-foot square raised a foot-and-a-half off the ground. A horizontal bar hung above; the girls steadied themselves with it, swung from it and occasionally did pull-ups. The ceiling was low enough that the tallest girl, a Russian immigrant called Star, scraped her platform shoe on it during a Rockette kick.

There was no backstage, so each dancer hobbled up from one end of the long room in her 5-inch heels and tight dress. The previous dancer, after pulling her clothes back on, gave the new one a hand up, then stepped gingerly off the platform and hobbled back to the dressing room. The new dancer hung up her purse, then grabbed a bottle of Windex from behind a lami curtain and washed the previous girl’s sweat off the mirror behind the stage. Performing these homey rituals every two songs turned the gorgeous, costumed artistes into sexy domestics, which seemed possibly intentional.

The moment I took out my notebook, a second doorman rushed over to ask what I was writing. I said the Supreme Court ruling had brought me out and he rejoined aggressively, “I don’t see any secondary effects, do you? I don’t see any prostitution or drug dealing, do you?” I didn’t, though the girls did spend a lot of time working the room and sitting with the men who stuffed the most into their garters. And when I returned to my car at the end of the evening, lo and behold, my car stereo had been stolen. Whether the thief was spurred on by un-G-strung labia I will never know.

We watched all 10 dancers express themselves twice, and each of us could pinpoint our moment when it plunged from intriguing to banal (about an hour and a half for me). Until that crash, the perfect bodies in motion held our attention along several tracks, including the tangential lust generated by watching, with men, a beautiful naked person 7 feet away. But, unlike our fellow patrons — mostly young, handsome, preppy guys with zombie faces — we also got to study hair-removal techniques close up and envy/marvel at their flawlessness. All three of us independently went “yeah” and pumped our fists like March Madness fans when one leggy beauty twisted just the right way to summon a whisper of cellulite on her butt for a few seconds.

Angel, Star and the rest used light, music, movement and their bodies to create an illusion, just like any theater performance. (An Erie production of “Equus,” featuring naked people, was not prosecuted under the nudity ordinance.) Nudity on stage always packs a dramatic punch, and the strippers’ artistic arsenal would be compromised without it.

Angel’s crotch, for example, did personalize her expression. Her body was as flawless as the other dancers’, but her red pubic hair was less groomed, which helped her craft a sort of heartland tomboy character. Her tips shot up as the night wore on and the men grew maudlin: The girl next door became more appealing than the Vegasy statues. In her dance to Tom Petty’s “Free Falling,” Angel pulled down her skirt, then her thong, then her top to the titular chorus, which was funnier than any other move I saw.

All the strippers agreed that pasties and G-strings stifle their earnings as well. In her thick Russian accent, Star said, “When you dance in a G-string, it is not so expressive, and guys don’t tip as much.” Heather, a sullen ectomorph who directed her onstage gaze at the mirror only, praised the wider range of choice, pointing out that “You can express yourself by not taking off your G-string, if you want to say, you know, F.U.”

Strip joints aren’t the only places where the right to say F.U. is under siege. Last week, the Senate almost passed a constitutional amendment to make flag burning a crime, a debate also framed as conduct vs. expression. The Erie case’s precedent, United States vs. O’Brien, found that a war protester who burned his draft card was unprotected by the First Amendment.

All the ’60s politics revived to tilt at symbols converged on the cafi au lait-colored body of Kiya, a stunning Janet Jackson look-alike. For her final number, she started in an American flag bikini top and a long matching skirt. Her song was “American Woman,” originally by Canada’s Guess Who, appropriated here by hippie throwback Lenny Kravitz.

As Kiya tossed the flag skirt away to reveal Old Glory butt floss, Lenny K. railed at war machines and ghetto scenes. It was all pretty fabulous — countercultural dissent in sequins, bought and sold back and forth, a sassy, cynical spin on Jimi Hendrix’s “Star-Spangled Banner” and guitar-burning at Woodstock.

Kiya shrugged off her bikini and clung to the overhead pole, fluttering her long body like a clean sheet. She flashed her brilliant smile at a big-spender special friend, a dark-skinned black man in a blue suit standing at her pedestal. She caressed his hair, looked tenderly into his eyes and turned him into an ATM. He slid bill after bill into her garter as she steadied herself with one hand to the ceiling.

A chunky white man in his own blue suit appeared at Big Spender’s side and briefly jostled for position at the garter belt. A triangle of aggression formed at Kiya’s feet as the padded shoulders pushed against each other threateningly. Then suddenly the two men were embracing. Kiya beamed down at them like some morphed hologram of all the world’s beauties, and then they took turns pushing bills into her garter. The black guy and the white guy admired the sunflower of money bursting from her thigh, hugged each other again and returned to their seats.

Not expression!? As Redskin John Riggins told O’Connor in another context, “Lighten up, Sandy baby.” Kiya’s “American Woman” number got commodification, dissent, racial vs. sexual loyalties, power and nationalism into three minutes on and around a tiny stage. I had to admit that a G-string and pasties would have added another layer of hypocrisy, flash and delusion, but I don’t think that’s what O’Connor was getting at.

Bolick said the Constitution does not call for a “wall between church and state, but neutrality.” He said the Supreme Court will probably uphold vouchers because funding is given not directly to parochial schools, but to parents, who then have the power to choose where they children are educated.

Steven Green of Americans United for the Separation of Church and State countered: “Since 1947 and the modern era of church-state jurisprudence, the Supreme Court has never upheld a program that permitted for the public funding of religious instruction and education.” The court has ruled that certain extracurricular programs such as school lunches, nurses or speech therapists can receive government funds. But school vouchers “violate the core principles of separation of church and state that our founders decided on over 212 years ago,” and should be verboten by the Supreme Court, since they pay for teachers and lesson plans in schools where creationism may be in the curriculum. In essence, the issue boils down to keeping schools safe for Darwinian debate.

In the final round of debate, Green and Bolick exchange singeing e-mail flames.

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Steven Green:

As usual, Mr. Bolick defends vouchers with a discussion of policy, not law. This is because he would rather debate this issue from a policy perspective that relies on exaggerated claims about the problems with public education. The formula is as simple as it is simplistic — public schools are failing students as never before; public schools cannot and will not address the problems they face; and vouchers are the only alternative to a failing public education system.

The truth is that public schools are doing a better job of educating our children than ever before. Test scores are up, as is parental satisfaction. While performance among minority students is still at unacceptably low levels, significant strides have been made. Nationwide, achievement scores among African-American and Hispanic youth have increased at higher rates than those of non-minority children. Studies have shown that smaller class size is the most effective tool for improving student performance. Public schools are making strides but they need the financial and moral the support of legislators and citizens, not criticism from every corner. We must concentrate on reform measures that improve education for all children, not on unproven schemes like vouchers.

As to Mr. Bolick’s legal analysis, he blurs several important distinctions between recent Supreme Court holdings and vouchers. None of the decisions cited involved programs that transferred unrestricted cash to religious or parochial schools, as happens under a voucher. The court has allowed incidental benefits to flow to religious schools provided the programs are discrete and not convertible for religious uses. Vouchers do this very thing.

The only “exception” to this rule was the Witters vs. Washington Department of Services for the Blind case; but there, the college student had already acquired a possessory interest in the scholarship. As a result, according to Justice Thurgood Marshall, the transfer was akin to a state employee donating his paycheck to a religious institution, all without constitutional barrier.

In anticipating a shift in Supreme Court jurisprudence, Mr. Bolick ignores language in the same opinions that reaffirms that public funds cannot pay for religious indoctrination or flow to the coffers of religious schools. These cases do not support vouchers.

I find it ironic that voucher supporters seek moral support for their position in cases like Brown vs. Board of Education. During the 1950s and 1960s, Southern states used vouchers to fund private white academies as a way of circumventing desegregation. Today, many of the same people who support vouchers oppose affirmative action programs that benefit minorities. Although vouchers may have the immediate effect of empowering some minority students, all observers acknowledge that once vouchers are established, they will be made available to children from all economic backgrounds. The likely result will be greater economic and racial segregation in our nation’s schools.

The unfulfilled promise of Brown, of true equal opportunity for all children — black, brown and white — will only be achieved through a fully funded public education system that guarantees that all children receive the same opportunities.

Clint Bolick:

Steve is incorrect in asserting that the court has never upheld aid that has found its way into the religious mission of a school. It did so in Mueller vs. Allen, which involved tax deductions that were used for religious school tuition. It did so again in Witters vs. Washington Department of Services for the Blind, in which public funds were used to pay tuition for a student studying for the ministry at a divinity school. It did so yet again in Rosenberger vs. University of Virginia, where public university funds were allowed to fund an overtly religious publication.

The reason that aid was upheld — and that school-choice programs were upheld by the U.S. Supreme Court — is because the choice of where to spend the funds was made by third parties, not the government, and that the aid was neutral — i.e., available for use in religious and nonreligious entities. That is the line of demarcation between permissible indirect aid and impermissible direct subsidies.

Where Steve is emphatically wrong is in his contention that parents in choice programs are mere “conduits” for the transmission of funds to religious schools. For any money to reach the coffers of religious schools, the schools have to choose to participate, parents have to choose to participate and the parents have to choose religious schools. No school has even the slightest entitlement to public funds — they are transmitted only through the choices of individual parents. In Cleveland, parents may choose regular public schools, public magnet schools, public charter schools, private schools or religious schools. The realm of choices is broad and every financial incentive operates in favor of public schools.

The notion of parents as “conduits” betrays the ideological bent of the defenders of the status quo. In fact, in choice programs low-income parents are empowered for the first time: Like more affluent parents, they now can leave the system if it fails their kids. That is what is so threatening. It is also the competitive prod that will force public schools to improve — as they are doing in response to parental empowerment in Milwaukee, and Florida.

And that’s what the constitutional issue boils down to: the “primary effect” of choice parents. Most parents who choose religious schools in choice programs do not do so because the schools have a crucifix on the wall. They do so because their children finally have a chance for a good education in a school that happens to have a crucifix on the wall. We need to explore every opportunity to get a good education for kids who desperately need it. These programs are not about “establishing religion” — they’re about education.

But the most important school voucher ruling so far has been in Cleveland, where 3,761 students are participating in a program that provides as much as $2,500 in funding. Federal Court Judge Solomon Oliver Jr. ruled in December that the state voucher program in the city violated the Constitution because it mixed church and state.

A program in Milwaukee, the oldest in the nation, was upheld by the Wisconsin Supreme Court in 1997. The U.S. Supreme Court refused to hear an appeal of that case a year later. But the issue will no doubt be headed back to the high court, and many believe this time it will have to be heard. Dozens of states are considering voucher programs, including California, where the issue may be headed for the November ballot.

First conceived in the 1950s by economist Milton Friedman, school vouchers are the most contentious of the three favorite options of free-market-minded education reformers; the other two are charter schools and privatized public schools such as the Edison Project.

Vouchers, proponents say, hold public schools more strictly accountable for how students perform on standardized tests, which are seen as the educational equivalent of the corporate bottom line. In Florida, where the governor has made school vouchers a centerpiece of his education policy, Tallahassee will pick up the tab for private school if a child’s public school fails to meet the minimum acceptable score on the Florida Comprehensive Assessment Test twice in a four-year period.

So far, Florida has only given two schools, both in Pensacola, a failing grade. To date only 53 students have transferred to private schools as a result. But academics expect thousands more to become eligible when next year’s school report card is released. University of Florida economics professor David Figlio recently predicted in the Wall Street Journal that 65,000 additional students in 80 schools will be added to the eligibility list this year, when their schools fail to meet the state’s standards for the second time. But the Florida ruling seemed to deal a deadly blow to Bush’s ambitious voucher policy.

Voucher critics are divided into two camps: those who think vouchers will accelerate the decline of the public school system, and church and state absolutists, who believe voucher programs violate the First Amendment of the Constitution.

In a Salon News debate, Steven Green, general counsel and policy director of Americans United for the Separation of Church and State, and Clint Bolick, litigation director for the Institute for Justice, argue the constitutionality of school voucher programs. Today, Green and Bolick present their opening arguments. Check back tomorrow for the cross-examination.

Clint Bolick is litigation director for the Institute for Justice, a Washington organization that has fought on behalf of school voucher proponents.

The First Amendment reads, “Congress shall make no law respecting an establishment of religion.” The notion that allowing individuals to freely choose the schools of their choice — whether they are public, private or religious — is an establishment of religion tortures the meaning of those words. The Supreme Court consistently has held — in accordance with the framers’ own beliefs — that what is required is not a wall between religion and the state, but neutrality. Otherwise, certain cherished institutions, such as tax exemptions for churches, deductions for contributions to religious institutions, religious charities, the G.I. Bill, Pell grants, transportation for parochial school students and the like would all be held unconstitutional.

The most important case with bearing on the school choice debate was Brown vs. the Board of Education, which had nothing to do with religious establishment, but everything to do with the issue we’re discussing. In 1954, the Supreme Court issued what is probably the most sacred constitutional promise ever made to American citizens: The promise of equal educational opportunities for all school children, black or white, rich or poor. Since then, we’ve made significant progress, but it’s been painfully uneven, particularly for children of limited economic means in the inner cities.

I don’t think we can get radical enough in terms of solving America’s educational disparities. That’s why large majorities of black and Hispanic citizens support school choice along with a majority of all Americans.

A Constitution that guarantees equal educational opportunities should not be turned on its head to prevent the most promising educational reform in America. Obviously, the defenders of the status quo will reach out to any legal provisions they can find to thwart meaningful reform. Those who stand against school choice have consistently opposed virtually any kind of accommodation of religion. Fortunately, they have lost in most cases, and we predict they will loose on this issue.

The only case that the opponents of school choice can credibly argue is Pearl vs. Nyquist. In the early 1970s, a number of states, including New York and Pennsylvania, were concerned that the expense burden facing families whose kids were in religious schools would force them to remove their children and put them in public schools, which would add to the already high tax burden. New York state set up a number of mechanisms to aid religious schools and their patrons called ParochAid, which included direct grants to the schools themselves and tax credits for parents. The Supreme Court struck down that aid, ruling that the “primary effect” of the programs was to benefit religious schools.

But the court expressly left open the question of indirect aid such as scholarships that would be available to students without regard for the type of school they would be attending. That is a footnote that our adversaries conveniently overlook whenever they are using Nyquist. Since Nyquist, the court has addressed indirect aid cases on five occasions; and it has sustained that aid on each occasion.

The Supreme Court has addressed the issue on two occasions — once in the Mueller vs. Allen decision and more recently in the Agostini vs. Felton decision. The court ruled that the program’s neutrality as it is written determines a program’s constitutionality — not the decision third parties ultimately make in terms of schools determining whether to participate in a program or parents in deciding where to send their kids. What Judge Oliver is saying in the Ohio case is that because the only schools that elected to throw a life preserver to these children are religious, the program is unconstitutional.

The Florida program, in my view, is exceptionally well designed because it is the first program to expressly link private school choice with public school accountability. No scholarships are provided unless there is a failing public school and the state intervenes to bring whatever resources and reforms are necessary to improve the public school’s performance. It is unquestionably a bona fide and systemic public school reform program.

In Florida as elsewhere, the initial round of litigation has raised a number of state and federal constitutional issues. The first issue that was decided revolved around the state constitutional guarantee of a high-quality education. And the judge ruled that the education guaranteed by the state constitution can only take place in public schools. The same argument was raised by the plaintiffs in Wisconsin and Ohio and rejected by their Supreme Courts.

The defenders of the status quo have a powerful stake in fighting vouchers because the essence of school choice is a transfer of power from bureaucrats and special interest groups to parents. Our goal in litigation is to demonstrate that the primary effect of these programs is not to expand religion, but to expand educational opportunities. In the end, it will be difficult for the Supreme Court to turn its back on the one program that truly seems to provide equal educational opportunities to children who have been left behind.

When we reach the U.S. Supreme Court, the constitutional cloud will be removed once and for all.

Steven Green is general counsel and director of policy for Americans United for the Separation of Church and State.

Since 1947 and the modern era of church-state jurisprudence, the Supreme Court has never upheld a program that has allowed for the public funding of religious instruction and education. Every type of aid that the court has found permissible has always involved discreet supplemental funding to religious schools to cover programs like nutritional services, nurses, sign-language interpreters, speech pathologists and remedial programs like special-education services. The court has always been very careful to ensure that the government does not fund the core functions of religious education.

Private religious schools account for more than 85 percent of the private schools in the country. These are the types of schools, traditionally, where religion is integrated throughout the curriculum, where religious values and teachings are promoted — not just in classes on religion, but also in other courses. Most parents are attracted to religious private schools, to a large degree, because of the additional values that are taught and … incorporated throughout the school day.

It then becomes impossible for the government to fund religious education because there’s no way to separate the secular from the religious. When you start funding anything more than the peripheral programs I mentioned, you will inevitably then have the government funding private religious education and values. And that violates the core principles of separation of church and state that our founders decided on over 212 years ago.

In every single case it’s faced, the court has always drawn the line to say government cannot pay for religious indoctrination and instruction. Those cases that have been upheld have always involved either discrete programs that have supplemented the education, but have not taken over the core functions, or programs that cannot be converted for religious uses.

The problem with vouchers is that they provide fungible, unrestricted cash that will flow to religious schools and pay for the entire instructional process. The court has never dealt with a case like vouchers, absent a tuition reimbursement case back in 1973, Pearl vs. Nyquist, which was struck down.

Another concern the court expressed was that these programs inevitably favor religious over secular private education and, therefore, create an incentive for children to attend religious schools. This was an important point for the Federal District Court in Ohio when it struck down the Cleveland voucher plan in December. Judge Solomon Oliver looked at the facts and determined that children could only use the vouchers to attend private schools — no public schools were required to participate and 96 percent of the children attending private schools attended private religious schools. This, he said, didn’t offer parents a choice, since there really weren’t options available to children other than private religious schools.

If you combine those two themes — that vouchers create incentive for religious education and that voucher funds are fungible — you end up with the government funding religious education and training.

Proponents of vouchers say all of that makes no difference because the money is given to parents and it is they who determine where it gets spent. That’s a specious argument because in all the voucher programs that have been designed, the money is restricted and can only be spent on private education. Parents are just conduits for the transfer of money from the state to the ultimate beneficiary, which is the private religious school. When the court has talked about the difference between direct aid to religious schools, which is forbidden, and indirect aid to religious schools, it is not concerned about the payment mechanism. The court is concerned about the effect the funds have on the religious schools. As a result, the courts have uniformly — with only one decision to the contrary — found that this type of aid violates separation of church and state

Anywhere between 85 to 90 percent of the children attending private schools are attending religious schools, and we know from the experience in Wisconsin that any voucher program will eventually be expanded to include private religious schools.

Out of the two cases currently pending, the most likely to go to the Supreme Court is the Ohio voucher plan because it’s already in federal court. State courts are many times inclined to decide on state constitutional grounds, which then denies the [federal] Supreme Court the opportunity to review a state interpretation of a state’s constitution. The Cleveland voucher plan doesn’t have any other issues except for federal constitutional left for interpretation. And last fall, the Supreme Court issued a stay of Judge Oliver’s decision when he enjoined the further application of the Cleveland voucher plan. In our regard, that shows they have some interest in this case. Also, four voucher cases have gone up to the Supreme Court, but the court has so far refused to hear them. You now have a split in the federal courts, and we think there’s a good likelihood [they] will take this case.

Key for the Supreme Court will be two factors: The true availability of options under any kind of voucher program, and how the court interprets the definition of “direct aid.” Are they going to look solely at the payment formula and does it go through a third person? Or are they going to look at whether the effect of the aid takes over core functions?

Most observers think that the court is split. Pro-voucher advocates can count on three to support them: Chief Justice Rehnquist, Scalia and Thomas would vote for vouchers almost under any circumstance. The four justices pretty sure to vote against vouchers are Souter, Stephens, Ginsberg, Breyer. There are two justices on the fence: Kennedy and O’Connor, who will be the key votes.

Kennedy hopes to enlist the support of former anti-tobacco ally Sen. Bill Frist, R-Tenn., in drafting a bipartisan bill, Manley said. Frist’s office confirmed that the senator is reviewing Tuesday’s decision and may consider introducing legislation to expand the FDA’s scope.

Kennedy and Frist have worked together on previous tobacco legislation, and Manley said he is optimistic that a bill to broaden the FDA’s powers in the area of tobacco regulation “can move quickly through both the House and Senate.”

If all goes well, Kennedy and Frist may introduce legislation within a month, Manley said.

Tobacco opponents were disappointed but not surprised when the court ruled 5-4 that the FDA’s congressional charter does not give the agency jurisdiction over tobacco products.

“This was what everybody expected, given the types of questions that the justices were asking” when they heard the case last fall, said Donald Shopland, coordinator of the Smoking and Tobacco Control Program at the National Cancer Institute. “It just puts us back to square one.”

The tobacco industry predictably cooed over the decision.

“Business and industry throughout the nation ought to breathe a sigh of relief. The highest court in the land has confirmed that a federal agency cannot on its own go beyond its limits of authority set by Congress,” Brown & Williamson Tobacco Corp. said in a release.

It was Brown & Williamson that sought the initial injunction on which Tuesday’s Supreme Court decision was based.

Brown & Williamson and other tobacco companies rallied against a 1996 move by the FDA to establish uniform federal rules aimed at preventing tobacco sales to minors. Those rules prohibited the sale of tobacco to kids under 18, banned the sale of individual cigarettes and prohibited cigarette vending machines except in bars and other “adult-only” businesses.

Attorneys for big tobacco argued that their product was not a drug subject to FDA control.

The Supreme Court, as it turned out, agreed. While the court called youth smoking, and indeed smoking in general, “one of the most troubling public health problems facing our nation today,” it ruled that the FDA could not be reasonably expected to regulate tobacco.

At the heart of the majority opinion, authored by Justice Sandra Day O’Connor, are two apparently irreconcilable legislative precedents: that Congress has expressly prohibited the “removal of tobacco products from the market”; and that the FDA must, under its own rules, ban any product that is not “safe” and “efficacious.”

Since the FDA and every other agency in the federal health pantheon have repeatedly averred that tobacco is patently unsafe, the agency would be forced to ban the product in defiance of congressional edict if it were granted regulatory control, the court found.

In a somewhat ludicrous twist, the FDA had attempted to argue that tobacco products were in fact “safe” under the definitions included in the agency’s official charter, but the court wasn’t swayed by the argument.

“No matter how ‘important, conspicuous, and controversial’ the issue … an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress,” O’Connor wrote.