Vouchers Ruled Constitutional in Ohio

Published July 1, 1999

In another victory for school choice, the Ohio Supreme Court has ruled without dissent that the state’s use of publicly funded vouchers to educate low-income children at private or religious schools does not violate provisions for the separation of church and state in either the Ohio Constitution or the U.S. Constitution.

“This ruling decisively demonstrates that parental choice is constitutional,” declared Clint Bolick, litigation director for the Institute for Justice, the Washington_based public interest firm that defended the program on behalf of parents and children. “Once again, the kids won and the special_interest groups lost.”

Nevertheless, the Ohio court invalidated the Cleveland program’s operation, finding that state legislators had violated the state constitution in the way they had originally approved the measure. As a result, the voucher program must be reauthorized by the legislature to survive beyond the court-ordered termination date of June 30.

In a 5-2 decision, the court found that legislators had created the voucher program in June 1995 as “little more than a rider attached to an appropriations bill,” apparently for “tactical reasons.” Since the state constitution requires that “[n]o bill shall contain more than one subject, which shall be clearly expressed in its title,” the court struck the voucher provision from the appropriations bill as a violation of the one-subject rule. “The one-subject rule is part of our Constitution and therefore must be enforced,” said Justice Paul Pfeifer, writing for the majority.

As a result of the May 27 ruling, Ohio lawmakers who want the Cleveland Scholarship and Tutoring Program to continue will have to introduce new voucher legislation and secure its passage by the state legislature by June 30. Getting the Governor to sign the final bill won’t be a problem, but it is less likely that the reauthorization legislation can be kept free of killer amendments. (See related article, “Ohio Lawmakers Play Games With Voucher Families.”)

“I have supported the Cleveland Scholarship Program as a pilot project and do not believe it should be terminated due to a procedural flaw in legislation,” said Ohio Governor Robert Taft, a Republican.

The program allows some 3,700 low-income students to use $2,250 vouchers to pay for tuition at a public or private school. Most of these children, through their parents, have elected to enroll at sectarian schools. Lawmakers are free to reauthorize the voucher program because the state Supreme Court ruled that its constitutionality is not in question: It does not violate the provision in the U.S. Constitution’s First Amendment that prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” The Ohio General Assembly is similarly proscribed by its state constitution.

In rendering its decision on the Establishment Clause issue, the Court applied the three-prong test developed by the U.S. Supreme Court in Lemon v. Kurtzman (1971), which separately examines the purpose, the effect, and the operation of a statute to determine if it violates the Establishment Clause. A statute satisfies the Lemon test when:

  • It has a secular legislative purpose.
  • Its primary effect neither advances nor inhibits religion.
  • Its operation does not excessively entangle government with religion.

The Court ruled that the Cleveland voucher program simply provided scholarships to certain children to allow them to attend an alternative school. Some of these schools are sectarian, but “funds cannot reach a sectarian school unless the parents of a student decide, independently of the government, to send their child to that sectarian school,” wrote Pfeifer. The program’s “benefits are available irrespective of the type of alternative school the eligible students attend,” he added. Whatever link is established between government and religion arises 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 primary beneficiaries of the School Voucher Program are children, not sectarian schools,” the Court declared. The tax dollars for the voucher program do not go directly from the state government to religious schools. Instead, “aid provided by the state is received from the parents and students who make independent decisions to participate in the School Voucher Program and independent decisions as to which registered nonpublic school to attend.”

“In sum, there is no credible evidence in the record that the primary effect of the School Voucher Program is to advance religion,” the Court concluded, ruling that the program satisfied the three prongs of the Lemon test and hence did not violate the First Amendment’s Establishment Clause.

For more information …

The Ohio Supreme Court decision, Simmons-Harris v. Goff (1999), is available through PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot icon, and search for old documents #2184818 and #2184819.