The Cleveland program that allows low-income students to attend private and religious schools with publicly funded vouchers violates the U.S. Constitution’s prohibition against a government establishment of religion, a federal appeals court ruled Dec. 11.
A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, voted 2-1 to uphold a lower court’s ruling in December 1999 that the program violated the First Amendment because the vast majority of the participating private schools are religious. (“Supreme Court Declines To Hear Vt. ‘Tuitioning’ Case,” Jan. 12, 2000.)
Lawyers for both sides in the case said the appellate decision could clear the way for the U.S. Supreme Court to finally consider the long-contested issue of whether tax dollars can be provided to students to help defray the cost of precollegiate religious schools.
The Cleveland Scholarship and Tutoring Program, established by the Ohio legislature and now in its fifth year, provides some 4,000 low-income students with publicly financed grants of up to $2,250 to help pay tuition at private schools. More than 80 percent of the participating schools are affiliated with churches.
“The school voucher program is not neutral in that it discourages the participation by schools not funded by religious institutions, and the Cleveland program limits the schools to which a parent can apply the voucher funds to those within the program,” U.S. Circuit Judge Eric L. Clay said in the majority ruling. The majority said the case was controlled by a 1973 Supreme Court decision in Committee for Public Education v. Nyquist, which struck down a New York state program of tuition-reimbursement grants for children in private schools.
The appellate judges rejected arguments that a later line of Supreme Court decisions regarding government aid to religion had cleared the way for approval of a voucher program based on the private choices of parents. “This scheme involves the grant of state aid directly and predominantly to the coffers of the private, religious schools,” Judge Clay said.
In dissent, U.S. Circuit Judge James L. Ryan said the law allows participants several choices, not just the use of vouchers to attend religious schools.
“This case and its result-sentencing nearly 4,000 poverty-level, mostly minority, children in Cleveland to return to the indisputably failed Cleveland public schools from which, in many cases, they escaped as long as three years ago-is an exercise in raw judicial power having no basis in the First Amendment or in the Supreme Court’s establishment-clause jurisprudence,” Judge Ryan wrote.
Voucher opponents applauded the ruling as the latest in a string of defeats for advocates of public funding for private and religious schooling.
“In some ways, you might say this is strike three, if you include the failure of the California and Michigan [state voucher] referenda last month as strikes one and two,” said Elliot M. Mincberg, the vice president and legal director of People for the American Way, a Washington-based advocacy group that is helping represent the plaintiffs in the case.
Besides the Cleveland program, voucher programs are operating in Milwaukee and Florida. The Milwaukee program, which is similar to Cleveland’s and includes religious schools, was upheld by the Wisconsin Supreme Court in 1998. The U.S. Supreme Court declined to review the case later that year, meaning that the program has continued without further legal challenge.
The Florida program, targeted at children in poor-performing schools statewide, is being challenged in the state courts. A state appeals court in October overturned a ruling that the state program was unconstitutional on its face.
Lawyers defending the Cleveland program, including those for the state of Ohio and for a group of voucher parents, are considering whether to request a review of the case by the full 6th Circuit Court or a direct appeal to the Supreme Court.
“This ruling is not consistent with Supreme Court precedent,” argued Matthew Berry, a lawyer with the Washington-based Institute for Justice, which represents several voucher families in the case. “If we don’t appeal, it will end the education of 4,000 poor children in Cleveland, and we’re not going to let that happen until we’ve exhausted every avenue.”
Mr. Berry predicted that backers of the program would have little trouble getting court support for allowing Cleveland students who already attend religious schools with vouchers to continue to do so while the case is on appeal.
The appeals court did not discuss whether the Cleveland program would have to shut down. Last year, the U.S. Supreme Court intervened in the case by issuing an order that allowed 800 new participants to receive vouchers after a federal district judge in Cleveland had refused to allow the new students to join the program. The Supreme Court’s action was technically temporary, but even opponents of the program agreed that the justices intended that the voucher program be allowed to operate while the legal questions were resolved in the courts.
Associate Editor Mark Walsh contributed to this story.