School voucher debaters look to Supreme Court to decide issue
Analysis
By The Associated Press
12.12.00
Printer-friendly page
 |
| Michael Davis Jr., left, and Tyler Butler, right, hang
out in their fourth-grade classroom as they wait for Butler's mother on Dec. 11
in Cleveland. Davis and Butler are two voucher students at St. Adalbert
School. |
WASHINGTON — School vouchers have taken hits at the ballot box,
in legislatures and before the courts.
Hit again yesterday, supporters vow to keep up the fight, plotting a
challenge to a federal ruling against a Cleveland voucher program. They are
considering what could be their best hope: Another Supreme Court hearing on
government aid for religious schools.
"We've been waiting a long time for a Supreme Court case and this
looks like this is it," said Clint Bolick, a lawyer for the parents of 4,000
children attending Cleveland's private and church schools with state-issued
tuition vouchers.
Yesterday, a three-judge panel of the 6th U.S. Circuit Court of
Appeals in Cincinnati struck down the Cleveland program, which provides $2,500
to help low-income families pay tuition for schools outside the city's troubled
district.
In a 2-1 ruling in Simmons-Harris v.
Zelman, the panel said legislation that created the program
appears designed to favor religious schools for public funding.
"To approve this program would approve the actual diversion of
government aid to religious institutions in endorsement of religious education,
something 'in tension' with the precedents of the Supreme Court," the judges
said.
The panel added that recipients cannot truly apply the aid to any
school of their choice, including public schools, because no suburban Cleveland
public schools have enrolled in the program.
"This (ruling) means that taxpayer money will not be diverted for use
by private, religious schools," said Barry Lynn, executive director of
Americans United for Separation of Church and State. Lynn's organization is
part of a coalition that sued to challenge the Cleveland program.
The program had
survived an earlier constitutional challenge in the Ohio Supreme Court, but
opponents then took their case to
the federal courts.
As in Ohio, lower courts across the country have been divided over
whether spending tax money on religious education is an unconstitutional
violation of the separation between church and state.
The U.S. Supreme Court has narrowed — but not overturned —
its landmark 1973 decision in Committee for Public
Education v. Nyquist striking down vouchers. It has allowed
pro-voucher decisions from lower courts to stand, and in June, it ruled that
the government may provide computers
to religious schools.
Voucher supporters, while disappointed by yesterday's ruling in Ohio,
hope this case will provide a vehicle for the high court to squarely take on
the issue of direct government support for religious schools.
Vouchers have sparked debate across the country. Twenty-one states are
now considering vouchers, and a host of states have considered — and
rejected — ballot
initiatives creating programs.
All eyes are now on court battles in three pioneering states —
Ohio, Wisconsin and
Florida. But so far, the U.S.
Supreme Court has stayed out of the fray — declining to review a
Milwaukee program or a voucher fight from
Maine.
Supporters had no immediate game plan to convince the high court to
take the Cleveland case. But both sides of the debate believe the Cleveland
case is ripe enough for justices who have nibbled on the issue of state support
for church schools.
For one, the Cleveland case has two obviously conflicting rulings the
court could clear up with a decision: The state high court approved of the
program, but the federal court struck it down.
And unlike other school-choice cases punted by the high court, the
Cleveland case affects real people — something the court looks for in
considering what cases to take. In this case, thousands of school children will
lose their vouchers and possibly be forced to change schools if the court does
not step in.
"If the U.S. Supreme Court agrees to hear an appeal of this case, it
would set the stage for an historic showdown," Lynn said in a news release.
"This will be the most important case about public schools and church-state
separation in decades."
So far, the flurry of federal and state rulings has brought little
consensus on the matter. Rulings have flip-flopped in Ohio and Florida. And in
Maine and
Vermont, state and federal appeals
courts have rejected attempts to expand small voucher programs to include
religious schools.
The U.S. Supreme Court, for its part, has gone along with programs
that indirectly help religious schools by helping to pay for computers and
teachers, though it has not given its blessing to direct aid.
No one agrees on how far the high court will go.
"This is an area where evolution takes place in steps, not leaps,"
said Bolick, the pro-voucher attorney with the Institute for Justice who argued
the Cleveland case. "The court now has issued six consecutive rulings upholding
indirect aid, so we're feeling hopeful. Maybe we can make this the lucky
seven."
But it's not apparent that there's consensus on the court to overhaul
decades of precedent, said Bob Chanin, who is advising the National Education
Association, a teachers' union that bitterly opposes vouchers.
"Everyone knows the court is badly split on this issue," he said.
"What we're talking about is basically an overhaul of a landmark ruling."
Some opponents hope the lower court rulings like yesterday's in Ohio
are enough to derail vouchers on their own. They send a signal that state
voucher laws "would only bring about litigation that they would lose," said
Phil Baum, executive director of the American Jewish Congress.
Ohio authorized the program, which is open to elementary school
children, as an experiment in 1996, and a majority of the schools are
affiliated with local houses of worship.
Yesterday's ruling upheld a decision by U.S. District Judge Solomon
Oliver Jr., who halted the program just before the start of the 1999-2000
school year. He later allowed students who had participated in the past to
continue getting funds while the case was decided.
Update
Supreme Court to tackle school vouchers
Cleveland program will provide high court’s first look at public funding of religious education since 1973.
09.26.01
Previous
Federal judge strikes down Cleveland voucher program
Despite calls to reverse preliminary injunction against school vouchers, judge says program amounts to government-sponsored religious indoctrination.
12.21.99
Related
Supreme Court lifts injunction against Cleveland voucher program
Ohio will be able to fund students' tuition while federal courts ponder constitutional merits of voucher plan.
11.08.99
Federal judge strikes down Cleveland voucher program
Despite calls to reverse preliminary injunction against school vouchers, judge says program amounts to government-sponsored religious indoctrination.
12.21.99
Federal judge alters order, allows some vouchers to remain in effect
School voucher supporters, still deriding Cleveland ruling as placing poor students in peril, seek further court action.
08.30.99
Court's ruling will add fuel to voucher debate
By Charles Haynes The Supreme Court poked a big hole in Mr. Jefferson's "wall of separation" last week when it ruled that federal dollars may be used to buy computers and other instructional materials for religious schools.
07.09.00
