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Choice: Judge OKs Voucher Plan

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An Ohio judge has deemed Cleveland's school-choice program constitutional, opening the door for 2,000 low-income children to enroll in private and religious schools at state expense.

In a case being watched nationwide, Judge Lisa Sadler of Franklin County Common Pleas Court in Columbus ruled that the Cleveland voucher program does not violate the federal or state constitutions even though it allows state funds to flow to religious schools. "This court is persuaded that the nonpublic sectarian schools participating in the scholarship program are benefited only indirectly, and purely as the result of the genuinely independent and private choices of aid recipients," Judge Sadler said in her opinion.

The pilot program, enacted by state lawmakers in 1995 and strongly backed by Republican Governor George Voinovich, authorizes vouchers of up to $2,250 for low-income parents of children in grades K-3 to pay tuition at any participating private school or at public schools in adjoining districts. The program is to take effect this school year, though opponents are asking a higher court to block it while an appeal is heard.

More than 6,000 families applied in January for the 1,500 scholarships initially available. Because of lower-than-expected tuition costs at some of the 48 participating schools, state officials were able to expand the program to a total of 2,000 children. No suburban school districts have elected to participate.

The Cleveland program is similar, although not identical, to a state-financed voucher experiment in Milwaukee. That program is currently open only to nonsectarian private schools. A 1995 Wisconsin law that opened it to religious schools is tied up in the courts.

The Milwaukee and Cleveland initiatives have been hailed by conservatives as ways to provide choice to low-income families. Conservative legal groups are hoping that one of the cases will make it to the U.S. Supreme Court, where they believe the programs would be upheld.

The Cleveland program wound up in court after a coalition that has traditionally opposed vouchers, including the major teachers' unions and groups advocating strict separation of church and state, filed suit. They argued that the inclusion of religious schools violates prohibitions in the U.S. and Ohio constitutions against government support of religion. "The scholarship money is going to go without restriction to a group of predominantly religious schools," said Donald Mooney, a lawyer for a group of the plaintiffs.

In making their case, the plaintiffs relied primarily on a 1973 U.S. Supreme Court ruling that struck down a New York state tuition-assistance program for parents who sent their children to private schools. But defenders of the Cleveland experiment pointed to more recent Supreme Court rulings upholding state-tax deductions for tuition at private religious schools, the use of vocational grants at such schools, and a publicly paid sign-language interpreter for a deaf student in a Roman Catholic high school.

In a dry 39-page summary ruling, Judge Sadler held that the scholarship program fell "within the narrow channel through which state funds can permissibly flow to sectarian institutions." The vouchers are awarded to eligible students regardless of whether the school is sectarian or nonsectarian, she noted. They are also available to students who would choose public schools outside of Cleveland. "Thus," she wrote, "the decision about which particular school to attend, and whether that school will be sectarian or nonsectarian, is made entirely, and independently, by the parents."

Sadler rejected the plaintiffs' argument that the program is unconstitutional because checks are to be sent directly to the private schools, where they must be endorsed by parents. Such a mechanism merely ensures that the funds are spent as the state intended, she said, and the school does not get any money until the check is endorsed.

Opponents of the program were disappointed and immediately filed an appeal. "The ruling is wrong and not particularly well-reasoned," said Robert Chanin, general counsel of the National Education Association.

Unless a higher court issues an injunction, the Cleveland program will start this fall. At press time, officials were verifying the income levels of participants.

According to program administrator Bert Holt, the average household income of the 2,000 participants is about $6,000. Said Holt, "We see this program as giving parents a choice and a chance."

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