School Choice & Charters

Voucher Foes Submit Briefs As Supreme Court Date Looms

By Mark Walsh — January 16, 2002 4 min read
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A diverse coalition of religious and education groups, as well as labor unions representing not only teachers but also firefighters and pipefitters, is urging the U.S. Supreme Court to strike down the Cleveland voucher program.

“On principles espoused by Madison and Jefferson, and steadily enforced by this court, payments to sectarian schools like those involved here are barred by the establishment clause,” argues a brief filed last month on behalf of a group of Ohio taxpayers who challenged the state-enacted tuition vouchers.

The Supreme Court will hear oral arguments Feb. 20 in Zelman v. Simmons- Harris (Case No. 00-1751) and will likely hand down by summer what most observers expect to be a landmark ruling on government aid for religious schools.

Proponents of the 6-year-old Cleveland program filed their briefs in November. Among those joining in friend-of-the-court briefs on the pro-voucher side were then-Mayor Rudolph W. Giuliani of New York and the economist Milton Friedman.(“Groups Weigh In as High Court Mulls Vouchers,” Nov. 28, 2001.)

Last month, it was the voucher opponents’ turn, and they also flooded the court with hundreds of pages of arguments.

Two main briefs represent the groups that challenged the voucher program as an unconstitutional government establishment of religion.

One group is affiliated with the American Federation of Teachers. Its brief was written by Marvin E. Frankel, a former federal judge who has been fighting vouchers in court for several years. In his view, the 96 percent of some 4,000 Cleveland voucher students who are using grants of $2,250 each at religiously affiliated schools represents “massive direct funding” of religion.

The other main opponents’ group is represented chiefly by Robert H. Chanin, the longtime general counsel of the National Education Association. Mr. Chanin is expected to argue the anti-voucher side before the Supreme Court.

1973 Decision Cited

In fairly dry language that eschews any policy arguments against vouchers, Mr. Chanin in his brief argues that the Cleveland program is essentially similar to a New York state program of tuition grants for private schooling that the high court struck down in 1973.

“The Ohio voucher program aid that finances religious education and indoctrination is properly attributable to the state and ... the program thus runs afoul of the establishment clause,” the brief says.

Several prominent opponents of vouchers were precluded from filing separate briefs because they have been involved in the Ohio litigation from the beginning. The American Civil Liberties Union, People for the American Way, and Americans United for Separation of Church and State have all signed on to Mr. Chanin’s brief.

Plenty of other organizations filed their own briefs. The National School Boards Association, joined by 10 other national education groups, told the high court that the benefits of voucher programs such as Cleveland’s are “illusory” and that the program is available only to “a handful of well- behaved, nondisabled students who are acceptable to the parochial schools.”

In a reunion of civil rights groups that split years ago, the National Association for the Advancement of Colored People joined with the NAACP Legal Defense and Educational Fund to argue that the voucher program fails to fulfill the promise of equal educational opportunity for all guaranteed by the Supreme Court’s 1954 decision in Brown v. Board of Education.

“The program ... creates serious dangers of increased school segregation of publicly funded education in the Cleveland area,” the organizations say in their joint brief.

One group made an oblique reference to recent terrorism. The National Committee for Public Education and Religious Liberty told the court it was concerned about a provision of the Ohio law requiring the disqualification from the voucher program of any school teaching hatred.

“It is not difficult to imagine, especially at this moment, claims that faiths are teaching ‘hatred’ of nonbelievers,” the New York City-based group argues. That would lead to the state’s review of whether, say, a Muslim or Jewish school was advocating hatred through its teachings, the group says. And such scrutiny, it says, would be “the very sort of entanglement of church and state that the framers intended the establishment clause to guard against.”

By far, the friend-of-the-court brief with the most varied range of signers comes from the California Alliance for Public Schools, a coalition of labor, education, and religious groups that formed in 2000 to fight a voucher proposal on California’s statewide ballot. The ballot initiative was soundly defeated.

Besides the inclusion of state groups representing school districts, administrators, teachers, and school nurses, the coalition also claims as members the California State Firefighters Association and the state Pipe Trades Council, which represents plumbers and pipefitters. The alliance’s brief states that all of its members “have a vital interest in California’s schools.”

“School voucher plans inevitably steer voucher recipients toward religious schools, in violation of the establishment clause and to the clear detriment of the public schools,” the alliance argues.

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A version of this article appeared in the January 16, 2002 edition of Education Week as Voucher Foes Submit Briefs As Supreme Court Date Looms


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