Tuesday, December 21, 1999
Vouchers unconstitutional, judge rules
Ohio school program to go on during appeals
BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau
COLUMBUS — Billed as a way to escape Cleveland's failing public schools, Ohio's taxpayer-funded voucher program ended up promoting “religious indoctrination” in violation of the constitutional separation of church and state, a federal judge ruled Monday.
The ruling by U.S. District Judge Solomon Oliver Jr., based in Cleveland, puts proponents and opponents of taxpayer support for private schools on course for a showdown in the U.S. Supreme Court, which appears ready to make the Ohio program a test case.
Judge Oliver delayed enforcement of his decision while the state appeals to the U.S. Court of Appeals for the 6th Circuit in Cincinnati. As a result, children participating in the 4-year-old program won't have to leave their schools.
Conservative groups, the Catholic Church and other religious organizations have pushed to expand vouchers throughout the country. Ohio lawmakers so far have limited the program to Cleveland, where 3,543 stu dents in kindergarten through sixth grade receive up to $2,500 each in tuition assistance.
Unlike other forms of taxpayer funding provided to private and religious schools, Judge Oliver wrote, the state has made no attempt to ensure the vouchers are used only for nonreligious educational purposes.
Of the 56 schools involved in the program, 46 of them — 82 percent — are religiously affiliated.
“Since there are very few nonreligious options for eligible students, one also cannot say that the decision to attend a religious school under the voucher program was made as a result of the genuinely independent choice of aid recipients,” Judge Oliver wrote. “Thus, the program has the effect of advancing religion through government-supported religious indoctrination.”
Activists on both sides of the debate weren't surprised. Just before school started in August, Judge Oliver ruled the program appeared to have the “primary effect of advancing religion.” His decision to block new students from entering the program later was overturned by the U.S. Supreme Court, which ruled the program could contin
ue while lower courts consider it.
Voucher proponents contend the program gives parents choices other than public schools. They note the nation's top court has ruled some other forms of taxpayer assistance to religious schools are constitutional.
“The continuity of the program is crucial to these children, their families and to the state's ongoing evaluation of scholarship (voucher) programs as viable school-choice alternatives,” Attorney General Betty Montgomery said in a prepared statement.
Senate President Richard Finan, R-Evendale, and House Speaker Jo Ann Davidson, R-Reynoldsburg, issued their own joint statement vowing the state would “aggressively pursue an appeal” of Judge Oliver's decision.
Most of Judge Oliver's 61-page opinion (available over the Internet at www.ohnd.uscourts.gov) reviewed the Cleveland program through the prism of previous rulings related to public support for private education.
He made his position clear by citing excerpts from the parent handbook at one of the Catholic schools participating in the voucher program. No. 1 on the school's list of educational objectives is to “communicate the gospel message of Jesus.”
Students at another voucher school are expected to “contribute a nominal amount for membership in the Society for the Propagation of the Faith.”
A ruling by the U.S. Supreme Court on Ohio's program could provide guidance as interest groups, educators and parents debate vouchers and the future of public education.
Legislation has been introduced in Congress to create a national voucher program. Legislatures in about half the states have considered similar programs.
Previous rulings from the nation's high court have been inconclusive.
For instance, the justices let stand Milwaukee's voucher program last year by refusing to review a case challenging it. In another decision handed down earlier this month, the court allowed Maine to keep providing tuition vouchers to children who attend some private schools while denying assistance for those in religious schools.
Barry Lynn, executive director in Washington of Americans United for Separation of Church and State, called Judge Oliver's ruling “a powerful rebuke to those who believe the government can force taxpayers to support churches or church schools.”
But Clint Bolick, litigation director for the Washington, D.C.-based Institute for Justice, a law firm that promotes school choice, predicted the Oliver ruling “will be a very short-lived decision. If the Court of Appeals will not overturn the decision, we feel very confident that the U.S. Supreme Court will uphold the program.”
Kevin Barclay, who has his 7-year-old daughter, Alexis, and 8-year-old daughter, Alayna, enrolled through the voucher program at St. Mary's, a Catholic school, was dismayed.
“The issue is still a matter of choice, although I can understand his point of view,” said Mr. Barclay, who is not Catholic. “The curriculum is so advanced, as well as values and morals that my daughters get there.”
The Associated Press contributed to this report.
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