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Published in Print: May 26, 1999, as Voucher Ruling Has Ohio Legislature on Spot

Voucher Ruling Has Ohio Legislature on Spot

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Ohio lawmakers were struggling last week to find a way to save the Cleveland voucher program, following a state supreme court ruling that faulted the program's legislative origins and put its future squarely in their hands.

In a 5-2 decision handed down May 27, the court said the program must be terminated at the end of this school year unless legislators reauthorize it in a way that meets state constitutional guidelines.

At a Glance: Ohio

Population: 11.2 million
Governor: Bob Taft (R)
State Superintendent: Susan Tave Zelman
Number of K-12 students: 1.75 million
Number of K-12 public school districts: 612
Fiscal 1999 K-12 budget: $6.09 billion

The court, however, also declared that the voucher program's use of public funds to pay tuition for Cleveland students to attend private or church-affiliated schools did not violate state and federal constitutional bans against government-supported religion. ( "Ohio Court Issues Mixed Verdict On Voucher Program," June 2, 1999.)

With the larger church-state question behind them at least for now, leaders of the Republican- majority legislature say they hope to fix the technical problem of how the voucher program was established by reauthorizing it within the Senate's education budget bill. The Senate was expected to pass the bill, which also includes a 6.7 percent increase in school funding statewide, sometime this week.

"We don't have enough data yet to see how things are going" with the voucher program, said Rep. Charles R. Brading, a Republican. The program is only in the third year of what was meant to be a five-year pilot effort, he noted.

"It would be advantageous for us to make sure that the program has run the gamut so we can see all of its pluses and minuses," Mr. Brading said.

Rep. Charles R. Brading

Democrats, however, may not want to advance voucher legislation too swiftly. Regardless, lawmakers will then have to work out the differences between the Senate education appropriations bill and an earlier version that passed the House before the Ohio Supreme Court handed down its ruling.

Deadline Imminent

In its decision late last month, the high court faulted legislators for tacking the original voucher legislation onto a 1,000-page general appropriations bill in 1995. The court said that violated a provision in the state constitution that requires each bill to address only one subject.

Last week, Republican leaders said they hoped to reinstate the voucher program through the education budget bill, rather than introduce an entirely separate piece of legislation, as a way of ensuring the continuity of the voucher program.

A budget bill, under state law, becomes effective immediately upon the governor's signature and would guarantee that the roughly 3,700 students in the Cleveland voucher program--who are among the 76,000 students total in the city's public school system--could begin the next school year as planned.

In contrast, even if lawmakers mustered the simple majorities of votes required to pass a separate voucher bill before the state fiscal year ends June 30, they would face a required 90-day waiting period between passage of such a bill and its enactment.

To avoid the waiting period, lawmakers would need to pass the voucher legislation by a two-thirds majority--a requirement that would be difficult to fulfill in both the House and the Senate, observers said. The House has 59 Republican members and 40 Democrats; the Senate has 21 Republicans and 12 Democrats.

"Realistically, we have to have something in place as soon as possible to let the students and schools know what they can expect," said Speaker of the House Jo Ann Davidson, a Republican.

Constitutional Questions

But Democrats and other voucher opponents complain that such tactics inhibit open debate and are intended to manipulate the program's critics into approving a voucher measure along with the larger education budget.

Sen. Michael C. Shoemaker

"It's called political extortion," said Sen. Michael C. Shoemaker, the ranking Democratic member of the Senate education committee. "It's saying, 'If you vote against [the education budget bill], you vote against kids.' "

The better way to decide the fate of the voucher program is to "put it up, have a hearing, and count the votes," Mr. Shoemaker added.

By reinstating the voucher program through the education appropriations bill, observers say that lawmakers could be opening up the voucher program to further legal challenges based on the supreme court's reason for finding the program unconstitutional: the "one subject" rule.

"It seems like they're asking for a challenge," said Richard Dickinson, the general counsel for the Ohio School Boards Association. "The purpose of the single-issue rule is to have debate on one issue and not have it get caught up in debate about all kinds of other issues."

Donald Mooney, the Cincinnati lawyer who represented the state affiliate of the American Federation of Teachers in the voucher case, said that the Republican leaders' strategy could be tied to the fact that the "need for a voucher program isn't there in legislators' minds the way it was four or five years ago."

The AFT and the National Education Association backed the lawsuit, which was filed by a group of Cleveland taxpayers challenging the legality of the voucher program.

Mr. Mooney also charged that allegations of financial mismanagement in the voucher program, combined with the passage since 1995 of legislation allowing charter schools in Ohio, might make it easier for lawmakers to bundle the reauthorization of the program into a larger bill rather than let it stand on its own merits.

But Republican legislators counter that reinstating the voucher program in a budget bill geared solely to educational programs, rather than one that deals with the general state budget, fulfills the constitutional "one subject" requirement.

The voucher program was passed in 1995 as part of the general appropriations bill. Lawmakers voted last spring to separate education appropriations from other state budget items.

The state attorney general's office, which represented the state in the voucher case, declined to comment on the case last week.

Vol. 18, Issue 39, Pages 13,15

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