OHIO VOUCHERS OVERTURNED!

Cleveland's School Voucher Program Violates Church-State Separation, Federal Apellate Court Rules

At Calvary Center Academy in Cleveland, the day begins with a mandatory pledge to the flag. But unlike their public school counterparts, students at the fundamentalist-oriented institution promise loyalty to a "Christian flag," and their pledge, while similar in cadence to what million of public school students recite every day, has a definite sectarian spin.

"I pledge allegiance to the Christian flag," the students chant in unison, "and to the Savior for whose Kingdom it stands, One Savior, crucified, risen and coming again, with life and liberty for all who believe."

For the past several years, taxpayers in Ohio have been supporting Calvary Academy -- alongside dozens of other private, sectarian schools -- thanks to a voucher program approved by state lawmakers in 1995.

But the days of Ohio taxpayers being forced to subsidize religion may soon be coming to an end. On Dec. 11, the U.S. 6th Circuit Court of Appeals, by a 2-1 vote, struck down Cleveland's school voucher plan, holding that tax aid to religious schools violates the constitutional separation of church and state.

"To approve this program," the court majority ruled, "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."

Judges Eric Clay and Eugene Siler Jr. added, "This scheme involves the grant of state aid directly and predominantly to the coffers of the private, religious schools, and it is unquestioned that these institutions incorporate religious concepts, motives, and themes into all facets of their educational planning."

Americans United for Separation of Church and State, which helped bring the lawsuit challenging the program, described the decision as a monumental victory for public schools and church-state separation.

"This is a great early holiday present for America's public schools and our constitutional principles" said Barry W. Lynn, executive director of Americans United. "This means that taxpayer money will not be diverted from public schools to private religious schools."

A coalition of education and civil liberties groups challenged the 5-year-old Cleveland voucher program in federal court in July 1999, after Ohio's Supreme Court ruled that the program did not violate the state constitution. Last year, U.S. District Court Judge Solomon Oliver came to the opposite conclusion, holding that public funding of religious education runs afoul of the First Amendment's separation of church and state. The Dec. 11 ruling affirms that decision. (For more info about the Ohio voucher program and the politics behind it, see "Cleveland Rocks" and "Outrage in Ohio," February 2000 Church & State.)

In its ruling in the Simmons-Harris v. Zelman case, the 6th Circuit Court asserted that Cleveland's voucher program "clearly has the impermissible effect of promoting sectarian schools." During the 1999-2000 school year, the judges noted, 3,761 students were enrolled in the program, and 96 percent of them were attending religious schools. The court also noted that during that same school year, 82 percent of the participating schools were sectarian.

The appellate majority based its opinion on Committee for Public Education v. Nyquist, a 1973 Supreme Court ruling striking down a New York law that gave tuition reimbursements to low-income parents who sent their children to religious schools. The majority acknowledged that the Supreme Court has since approved certain types of indirect aid to religious schools but asserted that the central finding in Nyquist has never been overturned.

The appellate court decision left voucher advocates fuming. Coming just a little over a month after voters crushed voucher referenda in Michigan and California, the ruling by the federal appeals court was the latest setback in a string of recent defeats for movement loyalists. (Last year, another federal appellate court struck down a voucher-like program in Maine. The supreme courts of Vermont, Maine and Puerto Rico and a state court in Pennsylvania have also declared voucher programs unconstitutional.)

Clint Bolick, of the Washington-based Institute for Justice, a group that helped argue the Cleveland case on behalf of vouchers, vowed to take the matter to the U.S. Supreme Court. "This is the test case that everyone has been waiting for," Bolick told reporters.

Lynn said Americans United will monitor further developments. "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. "This could be the most important case about public schools and church-state separation in decades."