Cleveland Plan Is Constitutional

Published January 1, 1997

In 1996, six years after Milwaukee, Wisconsin implemented a school choice program that included private but not parochial schools, Cleveland, Ohio started the nation’s second major school choice program. The Cleveland plan gives low-income parents opportunity scholarships that can be used at both private and parochial schools.

Like the Milwaukee program, Cleveland’s plan has faced court challenges. Opponents attacked the use of publicly funded scholarships for paro-chial schools as a violation of the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion.” The Ohio chapter of the National Educa-tion Association, the American Fed-eration of Teachers, the American Civil Liberties Union, and People for the American Way filed suit against the Cleveland plan almost immediately after it was established.

In July 1996, Judge Lisa L. Sadler of the Franklin County Court upheld the Cleveland school choice plan as constitutional. One week later, the Ohio Court of Appeals refused to hear a motion to stop implementation of the program.

In her ruling in Gatton v. Goff, Sadler acknowledged the importance of maintaining a wall of separation between the government and religious institutions. She recognized also that the situation in question is a common one, where state benefits are used in a manner that somehow assists students attending a religious school.

To survive a constitutional challenge on Establishment Clause grounds, Sadler found, a program must pass three requirements established in Lemon v. Kurtzmann (1971). In that case, the United States Supreme Court ruled that a program must reflect a clearly secular purpose, have a primary effect that neither advances nor inhibits religion, and avoid excessive government entanglement with religion.

Sadler found in favor of the Cleveland choice program on all counts. “Whether viewed on the face of the statute or as it is applied,” wrote Sadler, “the program does not appear to pose any of the dangers the Supreme Court was concerned with in those cases striking down programs which resulted in direct aid to sectarian schools.”

The Cleveland choice plan was clearly intended to fulfill a secular purpose by providing better education to participating children. Indeed, there were no arguments challenging the secular purpose of the plan. “Where the parties disagree,” wrote Sadler, is on the issue of whether the scholarship program has a primary effect that benefits religion.

On the question of primary effect, the plaintiffs asserted that the city’s parochial schools were the principal beneficiaries of the program. Defendants maintained that the sectarian schools benefited only indirectly, as a result of the individual choices made by parents, the actual recipients of the funds. Sadler agreed with the defendants.

Sadler found that the scholarships were made available to parents, and thus indirectly to schools, without respect to the sectarian or nonsectarian nature of the schools. Schools wishing to participate in the program are required only to take the steps necessary to be placed on the list of qualified schools. Moreover, the scholarships are awarded without regard to the public or nonpublic nature of the schools, since students may obtain scholarships to attend public schools in adjacent districts and in the City of Cleveland.

Sadler was thus persuaded that the nonpublic sectarian schools participating in the scholarship program are benefitted only indirectly, and purely as the result of the genuinely independent and private choices of aid recipients. Children apply to join the program and participants are chosen by the superintendent, who also decides upon the final amount of the scholarship. It is only after the scholarship has been awarded to the student that the nonpublic school becomes involved.

The parents select the school for their child but in order to receive the money, the student must then apply to the school, be accepted, and enroll in the school. The school then notifies the superintendent. Thus, the decision about which particular school to attend, and whether that school will be sectarian or nonsectarian, is made entirely, and independently, by the parents.

Even though the superintendent sends the scholarship checks to the schools rather than to the parents, the schools have no control over the funds until the check has been endorsed over to the school by a parent.

Finally, with respect to the excessive entanglement issue, plaintiffs offered no argument. Sadler noted that this was not unusual, as most of the Supreme Court’s decisions in this area have revolved around the second element of the test established in Lemon v. Kurtzmann.

Clint Bolick, vice president and litigation director for the Washington, D.C.-based Institute for Justice, represented the families of children seeking to participate in the program. “It’s a tremendous step forward,” he said following Sadler’s ruling. The Institute has litigation pending in Vermont and Wisconsin.

George A. Clowes is managing editor of School Reform News. His email address is [email protected].