Published Online: May 7, 1997

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Voucher Plan in Cleveland Is Overturned

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An Ohio appeals court struck down the Cleveland school voucher program last week, ruling that it violates federal and state constitutional provisions barring government aid to religion.

The three-judge panel in Columbus ruled unanimously May 1 that the state-established program primarily benefits religious schools in Cleveland because most of the 1,900 participating students use their vouchers to attend such institutions. The program also violates a separate state constitutional provision because it is targeted at a single school district, the court ruled.

The Cleveland program, which is nearing the end of its first academic year, is the first large-scale program in the nation to provide vouchers that allow low-income children to attend religious schools at state expense.

The 31-page ruling by state Court of Appeals Judge John C. Young did not say when the program would have to cease operations. Lawyers on both sides of the nationally watched case said they agreed the program would likely be allowed to finish the school year.

State officials said they would appeal the decision to the Ohio Supreme Court, and that they would ask the high court to delay the effect of the appeals court ruling to allow the program to continue next fall.

"We will ask for a stay so that the program can continue to operate and plan for next year," said Mark R. Weaver, a deputy attorney general in Ohio. "We think this will be vindicated at a higher level."

Robert H. Chanin, who argued against the program before the appeals court, said the challengers did not wish to shut the program down before the end of this school year but probably would oppose any delay of the ruling's effects beyond that.

The court "rejected the two pillars of the arguments that have been made in defense of vouchers across the country," said Mr. Chanin, the general counsel of the National Education Association.

He said the ruling dismissed the idea that vouchers are a neutral government benefit "because the benefit available is primarily an incentive to send your children to religious schools." And the court rejected the argument that government aid is flowing to religious schools only through the private, independent choices of parents, he said.

'Direct Subsidy'

The appeals court was clearly troubled by the fact that 80 percent of the participating private schools are religious. And the court noted that no suburban public school districts had agreed to accept Cleveland students bearing vouchers, even though the program authorizes them to do so.

"The only real choice available to most parents is between sending their child to a sectarian school and having their child remain in the troubled Cleveland city school district," Judge Young wrote. Such a choice, he added, "steers aid to sectarian schools, resulting in what amounts to a direct government subsidy."

The court also said that a separate component of the Cleveland program that authorizes $500 tutoring scholarships for public school students could not rescue the voucher component from a constitutional violation. The vouchers are worth as much as $2,500 for low-income parents, and thus "provide far greater educational benefit than the tutoring aid," the ruling said.

Voucher proponents may see some hope for the future of such programs based on two portions of the ruling. The first was the court's suggestion that the constitutional concerns might be lessened if the state compelled suburban districts to accept voucher students.

"It was within the state's power to assure the neutrality of the scholarship program by compelling public school participation," Judge Young said.

The other ray of hope for voucher supporters was the court's decision to analyze the constitutionality of the program using federal case law about government aid to religion.

State Law Issues

National groups advocating vouchers welcome any court ruling on vouchers that is based primarily on federal law, which would provide a vehicle for the U.S. Supreme Court to consider the issue.

In recent years, Puerto Rico's highest court and a Wisconsin trial court have struck down voucher programs that included religious schools. But they did so based on state constitutional provisions, not the U.S. Constitution. A proposed expansion of the existing Milwaukee program to include religious schools is pending before a state appeals court.

Opponents of the Cleveland program had argued before the appeals court that even if the program passed muster under the U.S. Constitution, it still violated Ohio's, which they argued has stronger prohibitions against government aid to religious schools.

But the appeals court said the program violates the state constitution for the same reasons it violates the federal Constitution. The Ohio Supreme Court has interpreted the language of the state document to be consistent with the federal Constitution's prohibition against government establishment of religion, Judge Young said.

The court also ruled that the legislature's decision to target the pilot voucher program to Cleveland violated a state constitutional provision requiring general laws to "have a uniform operation throughout the state."

The legislature had limited the program to districts that were under federal court orders requiring supervision by the state superintendent. Cleveland was the only district to meet that definition.

The appeals court ruling in Simmons-Harris v. Goff overturns a state trial court's ruling last summer that upheld the constitutionality of the program and allowed it to begin operating.

Process at Work

Voucher proponents in Cleveland and Columbus contend the program is off to a good start. Republican Gov. George V. Voinovich has proposed expanding the program to another grade next year. This year, it is open to children in grades K-3 who come from low-income families. ("Battle Waged Over Vouchers in Cleveland," Feb. 19, 1997.)

Bert Holt, the program's administrator, said late last week that about 1,000 additional children are in line to join the more than 1,900 participating this year.

The appeals court ruling "is the judicial process working," Ms. Holt said. "We want to continue to realize our hopes and aspirations for choice for all parents."

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