While the Ohio state legislature may have intended $2,250 vouchers to serve as a lifeline for low-income parents desperate to get their children out of the dysfunctional Cleveland public schools, a federal appeals court sees the program differently. In a December 11 decision, a divided Sixth Circuit Court of Appeals called the vouchers nothing more than a “scheme” to send tax dollars “directly and predominantly to the coffers of the private, religious schools” in the city.
Ruling that the voucher program impermissibly advances religion, the appeals court reasoned in a 2-1 decision that the voucher’s low value favors participation by schools with low-cost operations, which predominantly are sectarian rather than secular schools. The court found government funding of tuition at private religious schools to be a violation of the Establishment Clause of the First Amendment, which requires the separation of church and state.
The majority opinion held that the tuition scholarship limited participating families to sending their children to less-costly schools, which largely are sectarian. This “has the primary effect of advancing religion,” said the court, and “constitutes an endorsement of religion” in violation of the First Amendment.
While the court’s decision was hailed by voucher opponents such as the National Education Association and American Jewish Congress, many voucher advocates viewed it as inconsistent with recent U.S. Supreme Court rulings on indirect aid. Jan LaRue, director of legal studies at the Family Research Council, said the opinion was “full of holes,” including the court’s assertion that the vouchers were “direct” aid.
“The money goes directly to the parents, not the school,” LaRue said, citing many other examples of indirect government funding to religiously affiliated organizations and social service providers. He said Supreme Court Justice Thurgood Marshall’s majority opinion in Witters (1986) explains why indirect government assistance for private education is constitutional.
“[T]he fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the State,” Marshall wrote.
According to Buckeye Institute President David Owsiany, the U.S. Supreme Court has held that aid is constitutional as long as it is allocated on the basis of neutral criteria and is available to students at both secular and religious schools. The Cleveland Scholarship Program meets those requirements, he said.
The Ohio Pilot Project Scholarship Program, as it is formally known, was approved by the state General Assembly in 1995 in response to a court-ordered takeover of the Cleveland City School District due to mismanagement by the local school board. The program provides poverty-level students the opportunity to obtain special tutoring while remaining in the Cleveland public schools. Alternatively, students may attend another school–public or private–that is willing to cap tuition at $2,500 a year per student.
The city’s public schools currently spend over $10,000 a year per student, but the district meets none of the state’s 18 academic standards.
For the 1999-2000 school year, 56 schools–46 of them church-affiliated–participated in the voucher program. Although Cleveland’s suburban public schools were invited to participate, none chose to do so, and so no alternative public schools were available to voucher students. Of the 3,761 students enrolled in the program, 96 percent enrolled in sectarian schools.
The lack of alternative secular schools, public or private, for voucher students troubled the Sixth Circuit Appeals Court, which regarded such a limited choice as having the “impermissible effect” of promoting religious schools. The court reasoned that the low value of the voucher–only a quarter to a half of the per-pupil cost at public and private secular schools–worked in favor of religious schools because they “often have lower overhead costs, supplemental income from private donations, and consequently lower tuition needs.”
David Zanotti, chairman of the School Choice Committee, agreed with the court that the value of the scholarship is too low. Zanotti did not, however, agree with the rest of the court’s decision. He and other business, community, political, and religious leaders want to expand educational opportunities for all Ohio children through parental choice.
“The $2,250 scholarship is not competitive with per-pupil expenditures in public, nonsectarian, or charter schools, which spend two to four times that amount,” said Zanotti, noting the need for more alternative schools. “Without a more equitable funding plan there will never be enough seats available for all the children who desire a better education.”
Heading for the High Court
The case is likely to be heard by the U.S. Supreme Court before any changes are made to the voucher program. That’s because the Appeals Court ruling is in direct conflict with a 1999 decision of the Ohio Supreme Court, which found the program constitutional because “[t]he primary beneficiaries of the School Voucher Program are children, not sectarian schools.” The Appeals Court, by contrast, declared: “This scheme involves the grant of state aid directly and predominantly to the coffers of the private, religious schools.”
The Ohio Supreme Court’s 1999 opinion ruled that the program simply provided scholarships to certain children to allow them to attend an alternative school. “[F]unds cannot reach a sectarian school unless the parents of a student decide, independently of the government, to send their child to that sectarian school,” said the court, noting that any link between government and religion would arise only as a result of the “genuinely independent and private choices” of parents, “who act for themselves and their children, not for the government.”
The U.S. Supreme Court already has intervened in the case, acting in November 1999 to stay an injunction that would have halted operation of the voucher program. While such a stay provides no indication as to how the Court ultimately might rule, it is worth noting what Justice Antonin Scalia said in the Court’s more recent ruling to stay the Presidential election recount in Florida.
“[T]he issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success,” Scalia wrote.
The Supreme Court typically takes a case when lower courts reach opposite conclusions, which they have done in this case, noted Clint Bolick, litigation director for the Institute for Justice, the Washington, DC-based public interest law firm that is defending school choice programs across the nation and representing families in defense of the Cleveland program. Bolick and other Institute lawyers have argued the case for school vouchers and education tax credits in court challenges in Arizona, Florida, Illinois, Maine, Ohio, and Wisconsin.
“This is the U.S. Supreme Court test case we’ve been waiting for to remove the constitutional cloud from school choice once and for all,” said Bolick.
George Clowes is former Heartland senior fellow addressing education policy. He served as founding managing editor of School Reform News between November 1996 and January 2005.
