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Published in Print: January 12, 2000, as Cleveland's Voucher Supporters To Appeal Latest Legal Setback

Cleveland's Voucher Supporters To Appeal Latest Legal Setback

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Voucher supporters plan to appeal the latest federal court ruling against the Cleveland Scholarship and Tutoring Program, moving the controversial program a step closer to a possible test before the U.S. Supreme Court.

U.S. District Judge Solomon Oliver Jr. of Cleveland ruled Dec. 20 that the city's state-enacted voucher plan violates the U.S. Constitution's ban on a government establishment of religion. The judge, however, delayed the effect of his ruling pending an appeal by voucher proponents to the U.S. Court of Appeals for the 6th Circuit in Cincinnati. The voucher program can continue operating in the meantime.

The opinion was of little surprise, as Judge Oliver had said last August that the program appeared to be unconstitutional when he issued a preliminary injunction just before the school year began. He quickly modified his order, however, allowing the program to continue for those already participating, but forbidding its expansion. The Supreme Court, without ruling on the substance of the issue, then ordered the removal of even that restriction. ("Rulings on Voucher Program Cause Turmoil in Cleveland," Sept. 8, 1999.)

'Skewed Toward Religion'

While some laws that benefit religious institutions are constitutional, Judge Oliver wrote in last month's ruling, no law can have the "primary or principal effect" of advancing religion.

The Cleveland undertaking, he found, fails that test because the vast majority of participating schools are church-oriented. "A program that is so skewed toward religion," he wrote, "necessarily results in indoctrination attributable to the government."

The program provides low-income parents with publicly financed grants of up to $2,250 to help pay tuition. This school year, some 3,700 students are using the vouchers in 56 private schools, 46 of which are religious.

Proponents of vouchers complained that Judge Oliver did not delve into why so many religiously oriented schools take part. Matthew Berry, a lawyer with the Institute for Justice, said the most likely reason was simply that families choose them more often than secular ones. "The judge's continued insistence that parents didn't have a genuine choice of schools was odd," said Mr. Berry, whose Washington-based legal-advocacy group is defending the program. "There was no testimony from any parent saying that."

The judge accepted the argument of voucher opponents that the program should be overturned based on the Supreme Court's 1973 decision in Committee for Public Education and Religious Liberty v. Nyquist. In that case, the justices struck down a New York state program that provided partial tuition reimbursements for low-income parents whose children attended private schools.

"Voucher proponents have muddied the issue by claiming that the constitutionality of vouchers has not been decided by the U.S. Supreme Court when it has," said Judith E. Schaeffer, the deputy legal director for the People for the American Way, a liberal watchdog organization that is providing legal representation to the plaintiffs.

But the current Supreme Court is thought by some to be more receptive to the idea of such tuition aid, and the Cleveland case could ultimately yield a new ruling on the issue.

Another Try

There is no guarantee that the high court will ever hear the case. In November 1998, it turned down an appeal of a Wisconsin Supreme Court decision upholding Milwaukee's voucher program. And the justices have declined to hear recent appeals in other such cases.

The Cleveland program already has worked its way through the Ohio court system, resulting in a mixed ruling by the state supreme court last spring. While finding that the program did not create unconstitutional entanglements between church and state, the state high court ruled that legislators improperly established the effort by tacking it on to the general budget. Lawmakers then reauthorized the program through a new measure, leading the plaintiffs to begin their legal challenge anew in the federal courts.

Despite Judge Oliver's most recent ruling, many voucher supporters say the most important action came in November, when the U.S. Supreme Court voted 5-4 to grant a temporary stay of the preliminary injunction. Although the stay did not deal at all with the merits of the case, the action effectively allowed new students to receive vouchers.

On another school choice battleground, a state appeals court in Pennsylvania last month upheld a ruling against a proposed voucher plan in the Southeast Delco district outside Philadelphia. In March 1998, the local school board voted to begin offering vouchers to parents, but the plan was put on hold during litigation.

The appeals court ruled that the local board lacked the authority to create such a program.

Vol. 19, Issue 17, Page 9

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