City’s school vouchers don’t offend First Amendment, Ohio high court rules

Thursday, May 27, 1999

The Cleveland school voucher program — in effect since 1995 — does not violate the First Amendment's principle of separation of church and state, Ohio's high court has declared.

The ruling is the third state supreme court decision to announce that voucher programs, which provide tax dollars to students to attend private schools, including religious, do not subvert the separation of church and state.

In June 1998 the Wisconsin Supreme Court upheld in Jackson v. Benson Milwaukee's parental-choice program against church-state challenges. Subsequently, the U.S. Supreme Court denied a request to review the ruling. In January of this year, the Supreme Court of Arizona ruled in Kotterman v. Killian that tax-supported voucher programs do not promote religious education.

The Maine Judicial Supreme Court, however, ruled this April in Bagley v. Raymond School Department that the state's school-choice program did not have to include funds for religious schools. That ruling, however, did not make any conclusions as to whether a voucher program, which would offer funds to private religious schools, would violate the separation of church and state.

Although the justices unanimously agreed that the Cleveland voucher program does not offend the separation of church and state, a majority ruled that it did violate a state constitutional provision that states “no bill shall contain more than one subject, which shall be clearly expressed in its title.”

The Cleveland School Voucher Program was contained in a general state appropriations bill consisting of more than 1,000 pages, that passed in 1995. “The School Voucher Program, which is leading-edge legislation, was in essence little more than a rider attached to an appropriations, bill,” wrote Justice Paul E. Pfeifer. “The danger of riders is particularly evident when a bill as important and likely of passage as an appropriations bill is at issue. We conclude that creation of a substantive program in a general appropriations bill violates the one-subject rule. Accordingly, the School Voucher Program must be stricken from” the 1995 appropriations bill.

Eugene Volokh, a constitutional law scholar and professor at UCLA law school, said the Cleveland school voucher program was invalidated on a narrow state-law technical ground “that the Ohio legislature can promptly repair.”

Despite the technical setback for Ohio's voucher program, the high court overruled two lower state court decisions that found the program violated church-state separation.

Like the Wisconsin high court, the Ohio Supreme Court in Simmons-Harris v. Goff ruled that Cleveland's voucher program was created for secular reasons, does not advance religion, and could not unconstitutionally entangle church and government.

“It can be argued that the government and religion are linked in this case because the School Voucher Program results in money flowing from the government to sectarian schools,” Pfeifer wrote for the majority. “We reject the argument, primarily because 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.”

Pfeifer instead called the Cleveland program a “general government program” that makes its benefits “available irrespective of the type of alternative school the eligible students attend.

“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,” Pfeifer said.

The majority concluded that the primary beneficiaries of the vouchers were children, not religious institutions.

“The 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,” Pfeifer wrote. “Given the indirect nature of the aid, the resulting relationship between the nonpublic sectarian schools and the state is attenuated. In sum, there is no credible evidence in the record that the primary effect of the School Voucher Program is to advance religion.”

People for the American Way, a Washington, D.C.-based nonprofit group that argued against the Cleveland voucher program, attempted to paint the Ohio Supreme Court ruling as a victory for public schools.

“This ruling sends a message that vouchers are the wrong answer for education,” Carol Shields, the group's president said in a prepared statement. “For public education supporters, the message is that we must roll up our sleeves and do whatever it takes to strengthen public education.”

Matthew Berry, a staff attorney for the Institute for Justice, a libertarian law firm that argued before the Ohio courts in favor of the Cleveland vouchers, said that despite the spin by People for the American Way, the decision was a resounding victory for vouchers.

“We now have three state supreme court decisions which declare that school choice is constitutional,” Berry said. “The decision goes a long way in removing the constitutional cloud over school choice. Not a single Ohio court justice wrote that the voucher program violated the establishment clause of either the federal or state constitutions.”

Elliot Mincberg, an executive vice president and legal director for People for the American Way, said that a lower state court decision in Pennsylvania and Maine's Supreme Court ruling have found vouchers to violate the separation of church and state.

“I disagree with the analysis of the Ohio Supreme Court,” he said. “I prefer Maine's ruling. Eventually the U.S. Supreme Court will have to resolve this issue.”

Like Volokh, Berry said the Ohio legislature could and should reenact the voucher program. First he noted the Ohio ruling stayed its decision until the end of June so as not to disrupt the voucher students. “For the program to continue, we need the state to reenact the program in a stand-alone bill and then have the governor sign it,” Berry said. “The Legislature is still in session,” he said, adding, “the political stars would seem to be in our favor.”

Berry, moreover, said that there would be tremendous pressure on lawmakers to save the voucher program. “If not, there will be 3,000 kids thrown out of their schools and forced back into the Cleveland schools, where a child has more of chance of being a victim of violent crime than of graduating the 12th grade with proficient reading skills,” he said.

Eric Treene, director of litigation for the Becket Fund, a Washington, D.C.-based religious liberty group, also lauded the Ohio court ruling as victory for school choice.

“Certainly this is a resounding victory for parents making religious choices,” Treene said. “The court correctly focused on the individuals' being able to make religious choices.” Treene said that the religious-liberty clauses of the First Amendment “stand for barring government from making religious decisions, but protecting the individual religious decisions.”