Unwilling to bow to an appellate court panel’s decision that declared the Cleveland voucher program unconstitutional, the attorney general of Ohio has requested a rehearing by the full U.S. Court of Appeals for the 6th Circuit.
Attorney General Betty D. Montgomery filed a petition for a rehearing on Dec. 22, 11 days after a three-judge panel for the Cincinnati-based federal court ruled that the Cleveland program, which gives low-income students publicly financed tuition vouchers to attend private and religious schools, violates the U.S. Constitution’s prohibition against a government establishment of religion.
While Ms. Montgomery has not revealed what the state’s next move would be if the 6th Circuit court rejected her petition, lawyers for other parties defending the Cleveland program vowed last week to take their fight to the nation’s highest court.
“We’ve never had any doubt we’d go to the Supreme Court if necessary,” said Matthew Berry, a lawyer with the Washington-based Institute for Justice, which represents several voucher families in the case.
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 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 federal appellate panel 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 (“Cleveland’s Voucher Supporters To Appeal Latest Legal Setback,” Jan. 12, 2000).
“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 based its ruling on the 1973 U.S. 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 several more recent Supreme Court decisions 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 wrote.
In his 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, comparable 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.
In Ohio, lawyers defending the Cleveland voucher program predicted it would take up to three months for the 6th Circuit court to decide on the state’s request for a rehearing.
The appellate panel did not discuss in its Dec. 11 ruling whether the Cleveland program would have to shut down, so the students who receive vouchers are continuing to attend private and religious schools.
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.
A version of this article appeared in the January 10, 2001 edition of Education Week as Voucher Advocates Want Court To Rehear Case