Federal judge strikes down Cleveland voucher program

Tuesday, December 21, 1999

A federal judge says the Cleveland school voucher program is unconstitutional, declaring that it overwhelmingly benefits religious schools in the area, not poor students.

Last August, U.S. District Judge Solomon Oliver issued a preliminary injunction against the Cleveland Pilot Scholarship Program, which would have given about 4,000 poor families funds to send their children to private schools, including religious ones. A group of parents and the Ohio superintendent of public education appealed the judge's ruling, arguing that the program had a secular purpose and did not amount to government approval of religious schools in violation of the establishment clause.

In a 63-page opinion released yesterday, Oliver noted that 82% of the private schools that have participated in the voucher program are sectarian. He said “it can generally be said that a central part of each school's program is instruction in the theology or doctrine of a particular faith and that religion and religious doctrine are an integral part of the entire school experience.”

Oliver then cited the mission statements and educational philosophies of several of the religious schools and said the voucher program included no safeguards to ensure that voucher students would not be indoctrinated.

The judge noted that St. Mark Lutheran School advises potential students that “it is highly inconsistent for any parents to send a child to this school if they are not a Christian and/or are not interested in learning about Jesus Christ, are not living a Christian life or willing to learn how to lead such a life, and are not a supporting part of a Christian congregation through worship and sharing of time and talents.”

Saint Patrick School's mission, in part, is “to live and teach the Gospel message.” Some of the school's objectives include spreading the Gospel and providing instruction in “religious truths and values in such a way that they become an integrated part of the school program.”

In 1973, the U.S. Supreme Court invalidated a New York law that provided for partial tuition reimbursements to low-income parents whose children attended secondary public or private schools. In Committee v. Nyquist, the high court ruled that the tuition scholarship program benefited sectarian schools, even though the state funds were sent directly to the parents, and therefore violated the establishment clause of the First Amendment.

Oliver said the Cleveland vouchers, like the tuition grants in New York, “are unrestricted and can be used for any purpose a school finds necessary.”

“Taken together, the fact that the voucher program overwhelmingly benefits sectarian schools and that the grants provided under the program are not restricted to supporting only secular functions of a participating school's educational program make it indistinguishable for Establishment Clause purposes from the tuition reimbursement program in Nyquist,” Oliver wrote.

Ohio attorneys argued that Nyquist differed from the Cleveland situation, because parents received the vouchers and then ultimately chose whether the aid would flow to religious schools.

Oliver disagreed with the state's contention, saying that Ohio was directly aiding and advancing religious education in Cleveland.

“Even though parents must endorse their checks to the schools, the aid is given directly to participating schools,” Oliver wrote. “It can be fairly said that because the Program does not make aid available generally without regard to the nature of the institution benefited, the voucher program results in government-sponsored religious indoctrination.”

Oliver also said that the Cleveland voucher program could not be described as a government program that remained neutral toward religion.

“Because of the overwhelmingly large number of religious versus nonreligious schools participating in the voucher program, beneficiaries cannot make a genuine, independent choice of what school to attend,” Oliver wrote. “A program that is so skewed toward religion necessarily results in indoctrination attributable to the government and provides financial incentives to attend religious schools.”

Matthew Berry, a staff attorney for the Institute for Justice, a D.C.-based libertarian law firm that is representing a group of Cleveland voucher parents, said the case would be appealed to the 6th U.S. Circuit Court of Appeals.

“First, this decision was completely expected,” Berry said. “We now look forward to the appeal, where we believe Oliver's ruling will be overturned. His central point is that parents don't have a genuine choice of schools because over 80 percent are religious. The main flaw with that reasoning is that Cleveland parents have a wide array of choices, including charter, magnet and traditional public schools. The judge's fatal flaw was ignoring all the choices outside the voucher program.”