UPHOLDING THE WALL.

Religious School Vouchers Violate Church-State Separation, Federal Appeals Court Rules In Maine Case

After a legal setback at the Wisconsin Supreme Court and a legislative defeat in Florida, opponents of religious school voucher subsidies have been looking for a decisive victory to help stem the tide of a voucher movement that appeared to be gathering momentum.

On May 27 they got one, and it couldn't have been much bigger.

The U.S. 1st Circuit Court of Appeals, the highest federal court ever to rule on a voucher case, delivered a tremendous victory for church-state separationists when it ruled unanimously that taxpayers cannot be forced to finance private religious school tuition. The decision is certain to have a beneficial impact on the nationwide voucher debate.

Despite significant success at the federal level, however, news from state courts continued to be mixed. While the Supreme Court of Vermont issued a strong decision against public funding of religious schools, the Ohio Supreme Court ruled that religious school vouchers do not violate church-state separation.

This trio of judicial actions continues to bring public attention to the biggest controversy in education reform in recent memory and helps set the stage for an eventual challenge to vouchers at the U.S. Supreme Court.

Of the three decisions, the ruling with the most importance came from the 1st Circuit. The Strout v. Albanese case dealt with a lawsuit filed in Maine by parents seeking public funds for their children's private religious school tuition.

To assist families in more rural parts of the state where there are no public schools, the Maine legislature passed a law in 1981 that authorized the use of public funds to pay private school tuition for students in these areas. Religious schools were excluded from the program on the advice of the attorney general.

Several parents in Lewiston, who sent their children to St. Dominic's Regional High School, a Roman Catholic school, asked the state to reimburse their tuition expenses. When the state refused, the parents sought and received legal assistance from TV preacher Pat Robertson's American Center for Law and Justice (ACLJ) and filed suit. They alleged the state's exclusion of private religious schools amounted to a violation of their First Amendment rights.

Hearing Strout on appeal, a three-judge panel of the 1st Circuit ruled unanimously that parents could not demand public funds for religious education.

"Writ simple, the state cannot be in the business of directly supporting religious schools," observed Chief Judge Juan Torruella, writing for the court.

The judges emphasized the importance of church-state separation, referring to it as a "paramount principle and goal in the minds of some of the most influential Framers" of the Constitution.

"The historic barrier that has existed between church and state throughout the life of the Republic has up to the present acted as an insurmountable impediment to the direct payments or subsidies by the state to sectarian institutions, particularly in the context of primary and secondary schools," the court held.

Voucher opponents nationwide were understandably elated with the Strout decision. Americans United for Separation of Church and State, one of the groups that defended the Maine law, praised the federal court and heralded the ruling as a huge victory.

"This is the highest court ever to hear a voucher case, and the justices found public support of religious schools unconstitutional," said Americans United Executive Director Barry W. Lynn. "It is a monumental ruling in the battle against taxpayer support of religious schools."

Voucher boosters were predictably disgruntled. Jay Sekulow, chief legal counsel of Robertson's ACLJ, has already announced his intention to appeal the ruling to the U.S. Supreme Court.

Church-state separationists received additional good news two weeks later when the Vermont Supreme Court ruled unanimously that voucher-style tuition payments to private religious schools violate the state constitution.

Vermont, like Maine, has a state law that instructs districts that do not have their own public schools to provide tuition for families to attend other public or non-religious private schools. Religious schools are excluded from the program out of deference to church-state separation, as in the program in Maine.

In December 1995 the Chittenden School District, which does not have a public high school, adopted a policy that permitted public funding of religious school tuition. Subsidies were approved for students at Mount Saint Joseph Academy, a private Catholic high school in Rutland. The state then withheld funding to the school district, sparking a lawsuit.

In Chittenden Town School District v. Vermont Department of Education, the state Supreme Court unanimously held that the use of public money to pay for religious school tuition violates the state constitutional provision barring tax support of religion.

"We deem it highly relevant that, in the absence of any kind of regulatory process, the tuition payment system adopted by the Chittenden Town School

District can, and presumably will, expend public money on religious education...." Justice John Dooley wrote. "Apparently, the public and private sources of revenue are commingled so that each supports religious education."

Chapter 1, Article 3 of the Vermont Constitution states that no one can be "compelled to ... support any place of worship." Justice Dooley said the language used by Thomas Jefferson to create a "wall of separation between church and state" is "essentially the same as that in Article 3 of our constitution."

Though justices in Vermont concluded that taxpayer support of religious schools violates their state constitution, the same cannot be said of their counterparts in Ohio.

The Ohio Supreme Court ruled May 27 that a state voucher program in Cleveland granting low-income students up to $2,500 for tuition at religious schools does not violate church-state separation.

"Whatever link between government and religion is created by the School Voucher Program is indirect, depending only on the `genuinely independent and private choices' of individual parents, who act for themselves and their children, not for the government," wrote Justice Paul E. Pfeifer.

However, despite ruling that vouchers are consistent with church-state separation, the Ohio court nevertheless struck down the voucher program for violating a state constitutional provision barring legislative actions involving more than one subject.

The matter then returned to the Ohio legislature, where it was quickly reapproved. Gov. Bob Taft (R) signed the bill into law June 29.

Americans United and allied groups are preparing a new legal challenge to the voucher program, this time taking the case to federal instead of state court.

Observers on both sides of the voucher debate appear to agree that ultimately the U.S Supreme Court will have to settle the conflict with an authoritative ruling.