School vouchers grounded: Ohio appellate court says Cleveland 'pilot scholarship' program won't fly.

Supporters of the Ohio "Pilot Scholarship Program" called it an "educational choice" measure, intended to rents a wide array of options regarding their children's schooling. But a state appellate court has found that the program produced very little choice, and instead subsidized religious schools and steered parents toward them.

"The lack of public school participation in the scholarship program, together with the high percentage of participating private schools which are sectarian, renders these choices meaningless," held the Ohio 10th Appellate District Court. "The only real choice available to most parents is between sending their child to a sectarian school and having their child remain in the troubled Cleveland City School District. Such a choice can hardly be characterized as `genuine and independent."'

In a sharp blow to the religious school voucher movement, a three-judge state appellate panel on May 1 struck down Ohio's private school voucher program, the only operating program in the country that pays for tuition at elementary and secondary religious schools. The plan, the court said, violates the church-state separation provisions of both the U.S. and Ohio constitutions by using tax dollars to fund religious instruction.

The pilot program, enacted at the behest of Gov. George Voinovich and pro-private school forces in the state legislature, allowed inner-city Cleveland parents to transfer their children to "alternative schools," including suburban public schools as well as religious and other private schools. Up to $2,500 in tax funds could be used to pay for tuition for 2,000 students selected by lottery.

A second part of the program allowed public school parents to apply for $500 grants to pay for tutorial assistance for their children.

In the 1996-97 school year 53 private schools registered with the state to participate in the voucher plan. Eighty percent were religious in character, with most affiliated with the Roman Catholic Church. No suburban public schools signed up.

The voucher program was challenged in court in January, 1996, by taxpayers and public and private school parents with support from civil liberties and public education groups. One lawsuit was filed on behalf of taxpayers and public and private school parents by Americans United for Separation of Church and State and other organizations. A second challenge was filed by the teachers' unions. (The cases were later combined into a single legal action.)

Last July Judge Lisa L. Sadler of the Franklin County Common Pleas Court upheld the constitutionality of the voucher scheme. Sadler, a Voinovich appointee, said the program did not aid religion. The state appellate court, however, strongly disagreed.

Judge John C. Young, writing for the unanimous panel, held that the program steers aid to sectarian schools, resulting in what amounts to a direct government subsidy."

The court examined the program under the Supreme Court's traditional three-prong test for church-state cases and found that it failed the second prong barring government actions that have a primary effect that advance religion. To meet the "effects" standard, the Ohio judges said a program must be neutral toward religion and extend no direct or substantial aid to religious institutions. The Cleveland voucher pilot, the panel held, failed on both counts.

Unlike tax deductions or other "indirect" aid to religious education that have met Supreme Court muster, the appellate judges found that the Cleveland scheme is clearly skewed toward religious schools. Because no suburban public schools signed up for the program, parents had no opportunity to use their vouchers for secular public education. Furthermore, the court noted, the $2,500 private school scholarships are five times as large as the $500 tutoring grants, thus giving parents a great incentive to enroll their children in religious schools.

Judge Young and his colleagues also found that the program provided a windfall of tax aid to religious schools. Under the plan, the state government sends checks for tuition to participating schools, and parents go to the schools to sign over the checks to religious school officials. Such a tax subsidy to religion, the panel ruled, clearly violates the church-state provisions of the First Amendment.

"Because the scholarship program provides direct and substantial, non-neutral government aid to sectarian schools we hold that it has the primary effect of advancing religion in violation of the Establishment Clause," Young observed. He added that the church-state separation language of the Ohio Constitution is violated as well.

The Simmons-Harris v. Golf decision was a setback to Gov. Voinovich and his allies in the religious school voucher movement, and they vowed an appeal to the state Supreme Court.

Supporters of public schools and church-state separation were delighted. Said Americans United Executive Director Barry W. Lynn, "This is a tremendously important decision for all Americans. It reemphasizes that we cannot be taxed to support churches or church schools."

Coming on the heels of an adverse decision in the Wisconsin courts earlier this year, the Ohio ruling has the religious school voucher movement on the defensive in the judiciary. But it remains powerful on Capitol Hill and in many state legislatures.

Influential members of Congress -- from House Speaker Newt Gingrich and Senate Majority Leader Trent Lott to several committee chairs -- remain ardent boosters of vouchers and other forms of aid to private schools. At the Council for American Private Education's legislative conference in March, U.S. Rep. Frank Riggs (R-Calif.) vowed to press for tuition tax credits for private elementary and secondary education when President Bill Clinton's "Hope Scholarship" college aid proposal comes up in the House.

Riggs, chairman of the House Subcommittee on Early Childhood, Youth and Families, said he also will push for a large-scale voucher experiment that includes religious and other private schools.

Although inner-city parents have often been recruited to serve as the front people for voucher schemes, the driving forces behind the movement are right-wing politicians and the religious school interest groups that stand to gain most from a tax subsidy. The Roman Catholic bishops and fundamentalist Protestant clergy aligned with the Religious Right are the two religious communities with the largest private school systems, and they provide the most grassroots political clout for the voucher crusade.

The U.S. Catholic Conference (USCC), the bishops' lobbying arm, operates an Office for Catholic School Parent Associations in Washington, D.C. Established in 1994, the office organizes parochial school patrons and staff to put pressure on state legislatures for tax support. Raymond Burnell, a former lobbyist and Catholic school principal, was recently named to lead the effort, replacing Kenneth Dupre.

Some observers think the support of the Catholic bishops is key to advancing the issue. Michael Ferguson of the Catholic Campaign for America said voucher measures have made their greatest strides in states where the local bishops have aggressively pressed for aid.

The most recent prelate to do so is Bishop James T. McHugh of Camden, N.J. According to the National Catholic Reporter, McHugh issued a May I appeal to his flock to apply "renewed and sustained effort" in favor of vouchers. Urging Catholics to "become politically active by contacting legislators and candidates for public office at every level to assure their support for a voucher program," the bishop said, "The continued growth of Catholic population in South Jersey calls for new parishes and new elementary schools as soon as possible and new high schools in the not too distant future."

However, some Catholics resent such efforts to turn their church into a self-interested political machine. They believe the hierarchy spends far too much time seeking tax aid for its own parochial schools and no time at all lobbying on behalf of public schools, where most children -- both Catholic and non-Catholic -- get an education.

A recent article in the National Catholic Reporter charged that the bishops, despite their professed commitment to social justice, have been completely absent from the drive to win fairer financial support for public schools in the inner cities and other impoverished neighborhoods.

"A survey of Catholic conferences in 10 states where the battle over educational justice has been the most acute, involving both litigation and political controversy, shows that not one has ever issued a position paper or made a public statement on behalf of a more equitable distribution of resources," the newspaper said. "Neither these state conferences nor the USCC has ever filed an amicus curiae brief on behalf of a lawsuit seeking equity; the USCC did file, however, an enthusiastic brief, accompanied by a four-page news release, on behalf of the Wisconsin voucher program."

Notre Dame University professor Jay Dolan told the Reporter, "Since public schools serve the vast majority of children, the failure of the church to speak out on their behalf should give all of us pause."