School Choice & Charters

Voucher Plan in Cleveland Is Overturned

By Mark Walsh — May 07, 1997 5 min read

An Ohio appeals court struck down the Cleveland school voucher program last week, ruling that it violates federal and state constitutional provisions barring government aid to religion.

The three-judge panel in Columbus ruled unanimously May 1 that the state-established program primarily benefits religious schools in Cleveland because most of the 1,900 participating students use their vouchers to attend such institutions. The program also violates a separate state constitutional provision because it is targeted at a single school district, the court ruled.

The Cleveland program, which is nearing the end of its first academic year, is the first large-scale program in the nation to provide vouchers that allow low-income children to attend religious schools at state expense.

The 31-page ruling by state Court of Appeals Judge John C. Young did not say when the program would have to cease operations. Lawyers on both sides of the nationally watched case said they agreed the program would likely be allowed to finish the school year.

State officials said they would appeal the decision to the Ohio Supreme Court, and that they would ask the high court to delay the effect of the appeals court ruling to allow the program to continue next fall.

“We will ask for a stay so that the program can continue to operate and plan for next year,” said Mark R. Weaver, a deputy attorney general in Ohio. “We think this will be vindicated at a higher level.”

Robert H. Chanin, who argued against the program before the appeals court, said the challengers did not wish to shut the program down before the end of this school year but probably would oppose any delay of the ruling’s effects beyond that.

The court “rejected the two pillars of the arguments that have been made in defense of vouchers across the country,” said Mr. Chanin, the general counsel of the National Education Association.

He said the ruling dismissed the idea that vouchers are a neutral government benefit “because the benefit available is primarily an incentive to send your children to religious schools.” And the court rejected the argument that government aid is flowing to religious schools only through the private, independent choices of parents, he said.

‘Direct Subsidy’

The appeals court was clearly troubled by the fact that 80 percent of the participating private schools are religious. And the court noted that no suburban public school districts had agreed to accept Cleveland students bearing vouchers, even though the program authorizes them to do so.

“The only real choice available to most parents is between sending their child to a sectarian school and having their child remain in the troubled Cleveland city school district,” Judge Young wrote. Such a choice, he added, “steers aid to sectarian schools, resulting in what amounts to a direct government subsidy.”

The court also said that a separate component of the Cleveland program that authorizes $500 tutoring scholarships for public school students could not rescue the voucher component from a constitutional violation. The vouchers are worth as much as $2,500 for low-income parents, and thus “provide far greater educational benefit than the tutoring aid,” the ruling said.

Voucher proponents may see some hope for the future of such programs based on two portions of the ruling. The first was the court’s suggestion that the constitutional concerns might be lessened if the state compelled suburban districts to accept voucher students.

“It was within the state’s power to assure the neutrality of the scholarship program by compelling public school participation,” Judge Young said.

The other ray of hope for voucher supporters was the court’s decision to analyze the constitutionality of the program using federal case law about government aid to religion.

State Law Issues

National groups advocating vouchers welcome any court ruling on vouchers that is based primarily on federal law, which would provide a vehicle for the U.S. Supreme Court to consider the issue.

In recent years, Puerto Rico’s highest court and a Wisconsin trial court have struck down voucher programs that included religious schools. But they did so based on state constitutional provisions, not the U.S. Constitution. A proposed expansion of the existing Milwaukee program to include religious schools is pending before a state appeals court.

Opponents of the Cleveland program had argued before the appeals court that even if the program passed muster under the U.S. Constitution, it still violated Ohio’s, which they argued has stronger prohibitions against government aid to religious schools.

But the appeals court said the program violates the state constitution for the same reasons it violates the federal Constitution. The Ohio Supreme Court has interpreted the language of the state document to be consistent with the federal Constitution’s prohibition against government establishment of religion, Judge Young said.

The court also ruled that the legislature’s decision to target the pilot voucher program to Cleveland violated a state constitutional provision requiring general laws to “have a uniform operation throughout the state.”

The legislature had limited the program to districts that were under federal court orders requiring supervision by the state superintendent. Cleveland was the only district to meet that definition.

The appeals court ruling in Simmons-Harris v. Goff overturns a state trial court’s ruling last summer that upheld the constitutionality of the program and allowed it to begin operating.

Process at Work

Voucher proponents in Cleveland and Columbus contend the program is off to a good start. Republican Gov. George V. Voinovich has proposed expanding the program to another grade next year. This year, it is open to children in grades K-3 who come from low-income families. (“Battle Waged Over Vouchers in Cleveland,” Feb. 19, 1997.)

Bert Holt, the program’s administrator, said late last week that about 1,000 additional children are in line to join the more than 1,900 participating this year.

The appeals court ruling “is the judicial process working,” Ms. Holt said. “We want to continue to realize our hopes and aspirations for choice for all parents.”

Related Tags:


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Reading & Literacy Webinar
Addressing Learning Loss: What Schools Need to Accelerate Reading Instruction in K-3
When K-3 students return to classrooms this fall, there will be huge gaps in foundational reading skills. Does your school or district need a plan to address learning loss and accelerate student growth? In this
Content provided by PDX Reading
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Equity & Diversity Webinar
Culturally Relevant Pedagogy to Advance Educational Equity
Schools are welcoming students back into buildings for full-time in-person instruction in a few short weeks and now is the perfect time to take a hard look at both our practices and systems to build
Content provided by PowerMyLearning
Classroom Technology Webinar Making Big Technology Decisions: Advice for District Leaders, Principals, and Teachers
Educators at all levels make decisions that can have a huge impact on students. That’s especially true when it comes to the use of technology, which was activated like never before to help students learn

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

School Choice & Charters How the Pandemic Helped Fuel the Private School Choice Movement
State lawmakers got a new talking point as they pushed to create and expand programs to send students to private schools.
8 min read
Collage showing two boys in classroom during pandemic wearing masks with cropped photo of feet and arrows going in different directions.
Collage by Gina Tomko/EducationWeek (Images: Getty)
School Choice & Charters Opinion Taking Stock After 30 Years of Charter Schools
Rick Hess speaks with Nina Rees, president and CEO of the National Alliance for Public Charter Schools, on charter schools turning 30.
8 min read
Image shows a multi-tailed arrow hitting the bullseye of a target.
DigitalVision Vectors/Getty
School Choice & Charters In Fight Over Millions of Dollars for Charter Schools, a Marijuana Tax May Bring Peace
The Oklahoma State Board of Education voted unanimously to rescind a polarizing lawsuit settlement, pending certain stipulations.
Nuria Martinez-Keel, The Oklahoman
3 min read
Money bills cash funds close up Getty
School Choice & Charters Full-Time Virtual Schools: Still Growing, Still Struggling, Still Resisting Oversight
Nearly 500,000 students now attend full-time online and blended schools, says a new report from the National Education Policy Center.
6 min read
Student attending class from a remote location.