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Ohio Court Clears Cleveland's Voucher Pilot

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An Ohio judge upheld Cleveland's school-voucher program last week, opening the door for 2,000 low-income children to enroll in private and religious schools at state expense.

In a case being watched nationwide, Judge Lisa L. Sadler of Franklin County Common Pleas Court in Columbus held that the Cleveland scholarship program does not violate the federal or state constitution even though it allows state funds to flow to religious schools.

"This court is persuaded that the nonpublic sectarian schools participating in the scholarship program are benefited only indirectly, and purely as the result of the genuinely independent and private choices of aid recipients," Judge Sadler said in her July 31 opinion in Gatton v. Goff.

The pilot program, enacted by state lawmakers in 1995 and strongly backed by Republican Gov. George V. Voinovich, authorizes vouchers of up to $2,250 for low-income parents of children in grades K-3 to pay for tuition at any participating private school or at public schools in adjoining districts.

The program is to take effect this school year, though opponents said last week that they will ask a higher court to block it while an appeal is heard.

More than 6,000 families applied in January for the original 1,500 scholarships. Because of lower-than-expected tuition costs at some of the 48 participating private schools, state officials were able to expand the program to a total of 2,000 children. No suburban school districts have elected to participate.

A National Issue

The Cleveland program is similar, although not identical, to a state-financed voucher experiment in Milwaukee. The Milwaukee program currently allows only nonsectarian private schools to participate. A 1995 Wisconsin law that would open the program to religious schools has been tied up in the courts. (See "Thompson's Plan To Increase School Control Rejected," April 10, 1996.)

The Milwaukee and Cleveland voucher programs have been hailed by many conservatives as providing hope and choice to low-income families.

Conservative legal groups are hoping that one of the cases will make it to the U.S. Supreme Court, where they believe it would be upheld.

Republican presidential candidate Bob Dole traveled to Milwaukee and Cleveland last month to announce his campaign plan for a federal voucher program for low-income families.

The Cleveland program wound up in court after a coalition that has traditionally opposed vouchers, including the major teachers' unions and groups advocating strict separation of church and state, filed suit.

They argued that the inclusion of religious schools violates prohibitions in the U.S. and Ohio constitutions against government support of religion.

"The scholarship money is going to go without restriction to a group of predominantly religious schools," said Donald J. Mooney, a lawyer for a group of plaintiffs that includes the Ohio Federation of Teachers.

The plaintiffs relied primarily on a 1973 U.S. Supreme Court case that struck down New York state's program of tuition assistance for parents who sent their children to private schools.

But defenders of the Cleveland experiment pointed to a more recent line of Supreme Court rulings. The court has upheld state tax deductions for tuition at private religious schools, the use of vocational grants at such schools, and the provision of a sign-language interpreter for a deaf student in a Roman Catholic high school.

Parents' Decision

In a dry 39-page summary ruling, Judge Sadler held that the scholarship program fell "within the narrow channel through which state funds can permissibly flow to sectarian institutions."

The vouchers are awarded to eligible students regardless of whether the school is sectarian or nonsectarian, she noted, as well being available to students who would choose public schools outside of Cleveland.

"Thus, the decision about which particular school to attend, and whether that school will be sectarian or nonsectarian, is made entirely, and independently, by the parents," the judge said.

She rejected an argument that the program is unconstitutional because checks are to be sent directly to the private schools, where they must be endorsed by parents. Such a mechanism merely ensures that the funds are spent as the state intended, she said, and the school does not get any money until the parent decides to endorse the check.

Irreparable Damage

Judge Sadler, who was appointed to the bench last year by Gov. Voinovich, quickly dispensed with the plaintiffs' state constitutional arguments.

She held that the Ohio constitution provides no stronger prohibition against government support for religion than the First Amendment of the U.S. Constitution.

Opponents of the program said they were disappointed. They immediately filed an appeal with an intermediate Ohio court.

"The ruling is wrong and not particularly well reasoned," said Robert H. Chanin, the general counsel of the National Education Association.

Mr. Chanin, who participated in the arguments before Judge Sadler and has also been active in the Milwaukee voucher case, said the plaintiffs would ask a state appellate court for an injunction that would bar the program from taking effect later this month while the full appeal proceeds.

"It is our view that when taxpayer money is spent unconstitutionally it is irreparable," he said.

Many Religious Schools

Unless a higher court issues an injunction, it appears the Cleveland program will start the week of Aug. 19, when several of the participating private schools begin their academic year.

Bert L. Holt, the administrator of the scholarship program, said her office has been busy verifying the income levels of participants and doing paperwork to get the program off to a smooth start.

Of the 48 participating private schools, 37 are religiously affiliated, she said. The average household income of the 2,000 participants is about $6,000.

"We see this program as giving parents a choice and a chance," she said.

Jeanne Allen, the president of the Washington-based Center for Education Reform and a voucher advocate, said the ruling could have implications well beyond Cleveland. While Judge Sadler's decision has no legal force outside Ohio, it could encourage lawmakers in other states to give the more consideration to private school vouchers.

"Some people have used the [perceived] unconstitutionality of voucher proposals as a crutch" to avoid voting for them, she said. "Nobody wants to pass a law they think will go right into court."

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