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Published in Print: February 13, 2002, as High Court High Noon

High Court High Noon

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When the U.S. Supreme Court takes up the topic of Cleveland's school vouchers next week in a case destined for landmark status, the central issue will be the constitutionality of including religious schools in a state program that gives tuition aid to children from low-income families.

The wisdom or efficacy of such government benefits is not really before the justices in the Feb. 20 oral arguments. But here in Cleveland, the policy debate over the voucher plan has continued to simmer since the program was enacted by the Ohio legislature in 1995.

"Choice empowers parents," Christine Suma, a mother of 12 who has four children attending a parochial school using state vouchers, said one day recently. "If you can offer a government grant to my daughter who attends St. John's University, which is Catholic, I question why you can't do it across the board."

But Meryl Trimble Johnson, a vice president of the Cleveland Teachers Union, argues that the program takes resources from the public schools, yet has not proved effective.

"It's a failed experiment that has wasted tax dollars that could be put toward research- based programs that work," she said. "It's time they did away with it."

The Cleveland Scholarship and Tutoring Program is neither the oldest nor the largest major publicly financed voucher program in the United States. The pioneering Milwaukee program started in 1990, and it expanded to include religious schools by law in 1995 and by practice in 1998. It has some 10,000 participating students, more than double the 4,200 in Cleveland's program.

But the Supreme Court in 1998 passed up the chance to use a case challenging the Milwaukee program to decide whether giving vouchers to children to attend religious schools violates the First Amendment's prohibition on a government establishment of religion.

Instead, in an appeal called Zelman v. Simmons-Harris (Case No. 00-1751), the high court will use the Cleveland program to answer that question. In what is currently a $14.9 million-a-year program, the state pays up to $2,250 in tuition for each student to attend one of 49 participating schools. Parents are expected to contribute either 10 percent or 25 percent of the school's tuition, depending on family income.

High-Stakes Test

The outcome of the case could either pump new life into the school voucher movement or perhaps shut it down for good.

The stakes are high, and the Supreme Court has been flooded with hundreds of pages of legal briefs, exceeding the number filed in some of its most divisive abortion-related cases. Opponents argue the program results in significant amounts of government money reaching the coffers of religious schools, in violation of the establishment clause.

Supporters contend that the program is constitutional because parents, not the government, choose to use vouchers at religious schools, and the vouchers are part of an array of school options available to Cleveland families. ("Groups Weigh In as High Court Mulls Vouchers," Nov. 28, 2001, and "Voucher Foes Submit Briefs as Supreme Court Date Looms," Jan. 16, 2002.)

The voucher program was challenged soon after its enactment by groups of taxpayers backed by the major teachers' unions and such organizations as the American Civil Liberties Union, People for the American Way, and Americans United for Separation of Church and State. The challenge bounced from state courts in Columbus to federal courts in Cleveland and Cincinnati, where the U.S. Court of Appeals for the 6th Circuit struck down the program last year as a violation of the establishment clause.

But the legal challenge has been only one focus of attention for Cleveland residents. There was also the initiative's rocky first year in 1996-97, when the program spent more than $1 million transporting voucher students to and from school in taxicabs. A lot of attention also has gone to the formal academic evaluation of the program, which has painted a complex picture.

And there is the question of what effects the voucher program has had on the 76,000-student Cleveland public school district. At the time the voucher plan was enacted, the city district was in the throes of a financial and management crisis that led to temporary state control.

Roller-Coaster Ride

In the Zelman v. Simmons- Harris case, the first name is that of Susan Tave Zelman, Ohio's superintendent of public instruction. When the voucher program was enacted, she wasn't even in the state. Back then, she was a deputy commissioner in Missouri's education department. Her predecessor was sued by voucher proponents as the administrator of the program, and Ms. Zelman's name has now been substituted in the case.

A spokeswoman for the state education department said Ms. Zelman was not commenting on the case, and she referred calls to the Ohio attorney general's office.

Judith L. French, an assistant state attorney general who will argue the state's case before the Supreme Court, said the program should be upheld because it is religiously neutral and offers "true private choice" to parents.

"We enacted this because we had a severe educational crisis in Cleveland, and we had to do something about it," Ms. French said.

The lead name on the other side of the case is that of Doris Simmons-Harris, a 48-year-old medical clerk and mother with one son left in Cleveland public schools.

"I've paid my tax money, and I believe that money should go to the public schools," she said. "We need to enhance the quality of our public schools."

Ms. Simmons-Harris said she never considered applying for a voucher because she doubted that private schools would take her son because of his behavioral record. She is one of nine public school supporters who challenged the program with the aid of the teachers' unions and their allies.

The program is being defended by the state and also by "intervening" groups of parents receiving vouchers and private schools taking part in the program.

Ms. Suma, 46, is one of the parents who joined the legal battle with the aid of the Institute for Justice, a Washington legal organization that has long fought for vouchers. She sends four of her children to Our Lady of Good Counsel School, a Roman Catholic elementary school on the city's west side.

She said she hopes the vouchers will still be around next fall when her youngest daughter is ready to enter kindergarten.

"We've been on a real roller-coaster ride as to whether it is legal or not," Ms. Suma said of the program.

Sister Margaret O'Brien, the Good Counsel principal, said that in its heyday, the school served more than 1,000 students, many of them children of Slovakian and German immigrants. But enrollment declined over the years, as it has at many urban parochial schools.

She readily acknowledges that her school benefits from the program. About half the 270 students currently enrolled in the K-8 school are voucher recipients.

"It has really helped our school," Sister O'Brien said. "I do think that without this program, it would be hard to sustain this school."

Voucher opponents point to statistics showing that the overwhelming majority of voucher students attend religious schools as further evidence that the program represents unconstitutional aid to religion.

According to a recent report from Policy Matters Ohio, a local think tank that has ties to organized labor and is largely financed by the George Gund Foundation of Cleveland, 99.4 percent of the 4,202 students using vouchers attend religious schools this year, up from 76.8 percent in its first year.

Voucher proponents offer some explanations for that rise. They point out, for example, that Ohio businessman David Brennan had opened two secular private academies that served some 400 voucher students, but that those schools later closed and were reopened as public charter schools.

Ms. French of the state attorney general's office said the number of participating secular private schools has fluctuated greatly in the program's six years.

"The litigation has had a chilling effect on private school entrepreneurs," she said.

A separate report from Policy Matters Ohio drew attention to a fact about the program that surprised many people: Just 21 percent of voucher recipients during the 2000-01 school year previously attended Cleveland public schools, while 33 percent had already attended private schools before being awarded state aid. The other 46 percent had entered the voucher schools as kindergartners or came from elsewhere, it said.

"This program is not about helping those students who are leaving Cleveland public schools, but rather about helping people who have chosen a private religious education for their children and want some taxpayer help in paying for it," said Amy Hanauer, executive director of Policy Matters.

But along with parents such as Ms. Suma, who sent her children to Catholic schools even before the voucher program came along, other parents such as Roberta Kitchen say they got fed up with the local public schools long ago and were glad for the help in making a switch.

"My oldest daughter was in the 6th grade and she could not read," said Ms. Kitchen, a single mother of five who works in the audit department of a large corporation. "My other children were not doing well. I just could not take it any longer."

She enrolled her children in private school and struggled to pay a discounted family tuition rate. Of her two children still of elementary school age, Ms. Kitchen teaches one at home and uses a voucher to send the other to St. John Nottingham Lutheran School.

"There may have been some improvement in the public schools, but not enough to make a difference," she said.

Inside the System

Ms. Johnson, the Cleveland Teachers Union vice president and an 8th grade English teacher, believes the public school system is getting a bad rap.

On a recent tour of public schools here, she lists the ways the system has improved in recent years. Since 1998, when Cleveland's mayor gained the power to name the school board and the district's administrator, the district has had a charismatic chief executive officer, Barbara Byrd-Bennett, credited by many with placing the system on the right track. ("On Borrowed Time," May 16, 2001.) City voters last year approved a major bond issue for school improvements, even as state test scores for the district's students remained disappointing.

"Cleveland has been steadily improving," Ms. Johnson said. She rejects, however, the premise that vouchers played any role in prodding the public schools to improve, an argument for vouchers that supporters often make.

"What's going on outside the schools doesn't improve the system," she said. "The system is improved by the people inside."

At Forest Hill Parkway Academy, a K-8 public school on the city's east side, Principal Linda Hardwick said that parents of 23 students had received vouchers from the state scholarship program, but then decided to keep them in the public school.

Crystal Banks said she used a voucher to send her son to a private school for kindergarten, but returned him to Forest Hill for 1st grade. He is now a 5th grader.

"The main reason is that I am a product of the Cleveland public schools, and I think you can get an excellent education," she said.

Ms. Banks acknowledged, though, that she welcomed the choice the program provided.

"I'm really torn, because the voucher is taking money from the public schools, and they need every dollar," she said.

Research Results

When it comes to research findings on the Cleveland voucher program, the debate is as complex and heated as it is with other school choice experiments.

The state has contracted with the Center for Evaluation at Indiana University for the official study of the program. The center has kept track of voucher students, along with control groups of public school students who applied for vouchers but did not receive them and other public school students who did not apply for vouchers.

In a September report, chief researcher Kim K. Metcalf found that with only minor exceptions, "no pattern of achievement difference was found based on scholarship status" among the groups.

Opponents of vouchers have been quick to cite the results as proof that the tuition aid offers no academic magic.

But Mr. Metcalf says in the report that "it is much too early to draw definitive conclusions about the impact of the voucher program on students' achievement."

The effects of schooling and thus of the voucher program are cumulative and incremental, he argues. And research on other voucher programs, he writes, "indicates that the positive effects of choice are more likely as students move beyond the primary or early elementary grades."

Vol. 21, Issue 22, Pages 1,20-21

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