Federal judge blocks Cleveland voucher program

Tuesday, August 24, 1999

Only months after the Ohio Supreme Court stated that Cleveland’s voucher program did not offend the First Amendment, a federal judge has barred the state-funded program from operating because it may violate the separation of church and state.

The Cleveland Pilot Scholarship Program was passed by the Ohio Legislature in 1995 and offered state funds to enable low-income parents to send their children to private schools, secular or sectarian. Lawmakers said they created the program to help students escape the city’s struggling public schools. The city voucher program was quickly challenged, however, by several civil rights groups as a violation of the establishment clause of the First Amendment. The groups, including People for the American Way and the state affiliate of the American Civil Liberties Union, represented Cleveland parents who were concerned about funding religious schools with tax dollars.

In May the Ohio Supreme Court invalidated the voucher program, saying it ran afoul of a state constitutional prohibition against bills containing more than one subject. The voucher program had been attached as a rider to a 1995 appropriations bill. The court, however, unanimously said the program did not violate the separation of church and state. In late June the Legislature re-enacted the same program, calling it the 1999 Ohio Pilot Project Scholarship Program, and the same civil rights groups promptly filed a federal lawsuit and asked for a preliminary injunction to stop it.

This afternoon, U.S. District Judge Solomon Oliver granted the injunction, saying he did “not find the Supreme Court of Ohio’s opinion persuasive on the Establishment Clause issue.” Students in Cleveland will not be able to use the vouchers to attend any private schools until Oliver issues a final ruling in the case. About 4,000 students have requested vouchers. School starts tomorrow (Aug. 25).

Oliver also agreed with the civil rights groups’ assertion that a 1973 U.S. Supreme Court ruling in Committee for Public Education v. Nyquist is analogous to and controls the outcome of the Cleveland voucher case.

In Nyquist, the high court invalidated on establishment-clause grounds a New York state law that provided tuition reimbursements to poor parents whose children attended private schools. The court concluded, in part, that the law would advance the interests of religion, because the overwhelming majority of schools participating in the program were sectarian.

Oliver said that the Supreme Court in Nyquist found the New York reimbursement program to have the effect of advancing religion “because the program provided unrestricted grants to parents as tuition reimbursement for their children to attend nonpublic schools, the bulk of which is concededly sectarian in orientation.” He then concluded that in Cleveland similar circumstances exist.

“In this case, Defendants concede that the overwhelming majority of schools from which a student may choose are sectarian and that no adjacent public school has chosen to participate in the Program,” Oliver wrote. “Also, as in Nyquist, the funds received by a school are not restricted to use for secular educational purposes. In all pertinent respects, the (Cleveland) Program looks like Nyquist and would appear to be controlled by the precedent.”

In granting the injunction, Oliver wrote that the civil rights groups “have a very substantial chance of succeeding on the merits,” because “the Cleveland Program has the primary effect of advancing religion.” Oliver noted frequently throughout the injunction order that the Cleveland schools that participate in the voucher program are “overwhelmingly sectarian.”

Oliver cited a private school’s parent handbook that said “a child needs to hear and learn the word of God constantly, and this can be done only when the entire curriculum and the life of the school is grounded in the word of God and dedicated to the purpose of showing the love of the Savior to a world which without Him, would be lost forever.”

The Institute for Justice, a libertarian law firm that has argued in favor of the Cleveland voucher program, announced late yesterday that it had filed an appeal to the 6th U.S. Circuit Court of Appeals seeking to have Oliver’s injunction overturned.

“This a potential loss for every student and family in Cleveland,” Clint Bolick, the group’s litigation director, said in a prepared statement. “We will not let this decision stand without a fight.”