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Published in Print: August 4, 1999, as Private School Choice Target in New Round Of Court Challenges

Private School Choice Target in New Round Of Court Challenges

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Teachers' unions and their allies have targeted private-school-choice programs in Florida, Illinois, and Ohio for a new round of legal attacks.

A national and state coalition of teacher organizations and advocacy groups filed a federal lawsuit last month arguing that the inclusion of religious schools in the Cleveland voucher program violates the U.S. Constitution's prohibition against government establishment of religion.

Meanwhile, a similar coalition has filed a state legal challenge against Florida's recently enacted statewide voucher program, which will first be available this fall to students now attending two failing public schools in Pensacola.

And in Illinois, the state affiliate of the American Federation of Teachers has sued in state court seeking to strike down a $500 education tax credit that parents can apply toward private school tuition.

The Cleveland voucher program was revived by the state legislature in June after the Ohio Supreme Court struck it down. The state high court said lawmakers violated the state constitution in 1995 when they established the program as part of a broad state budget bill.

But the court went on to rule that the participation of religious schools in the voucher program did not violate federal or state constitutional prohibitions against government aid to religion because the state funding flowed to religious schools only as a result of choices made by parents.

Opponents of the program, including the National Education Association, the American Civil Liberties Union, People for the American Way, and Americans United for Separation of Church and State, filed a new lawsuit on July 20 in U.S. District Court in Cleveland. The American Federation of Teachers and its state affiliate filed a separate federal suit last week. The cases will likely be consolidated.

Switching Gears

The federal lawsuits represent a change in tactics for the Cleveland voucher opponents. The unions and the other plaintiffs were disappointed that the state supreme court last spring rejected their arguments that the program violates the federal constitution. ("Ohio Court Issues Mixed Verdict on Voucher Program," June 2, 1999.)

"We didn't feel the state court had given sufficient scrutiny to First Amendment arguments," said Ron Marec, the president of the Ohio Federation of Teachers, the state's AFT affiliate. "We felt we ought to go right to federal court and deal with these establishment-clause issues."

The opponents plan to point to a ruling in May by the U.S. Court of Appeals for the 1st Circuit. The Boston-based appeals court ruled that the inclusion of religious schools in voucher programs was unconstitutional despite a series of U.S. Supreme Court rulings in recent years that voucher supporters view as supporting their side.

The federal district court in Cleveland is not bound by the Ohio Supreme Court's ruling on the federal constitutionality of the voucher program. In their suit, the opponents did not raise any state-law issues, but they did seek a preliminary injunction that would prohibit the program from resuming this fall.

Joining the state of Ohio in defending the program is a group of voucher parents who have filed court papers to intervene in the case. They are represented by the Washington-based Institute for Justice, a legal organization that has fought for vouchers across the country.

"The fact that these special-interest groups are seeking an injunction against the program is what is perhaps most galling," said Matthew Berry, a lawyer with the institute. "It shows their interest in keeping these kids in any public school, even failing public schools."

Other States

The AFT last week also filed its own lawsuit against the Florida voucher program. The suit was filed in state court in Leon County and argues that the program violates the state and federal constitutions. The NEA and its coalition filed their own state lawsuit against the program last month.

Lawyers for the NEA say they won't seek an injunction to stop the Florida program from getting under way this fall. Instead, they will seek a quick timetable for a summary ruling on the merits of the program.

In Illinois, the AFT-affiliated Illinois Federation of Teachers sued in Franklin County Circuit Court seeking to overturn the state's new education tax credit, which can be used to offset tuition at religious schools.

The union argues in its suit that the income-tax credit will divert at least $50 million annually from spending on public education.

Vol. 18, Issue 43, Page 11

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