Ohio asks federal court to dismiss challenge to Cleveland voucher program

Wednesday, August 11, 1999

Ohio's attorney general is seeking the dismissal of a federal lawsuit challenging Cleveland's embattled voucher program on First Amendment grounds.

In late May the Ohio Supreme Court invalidated the 1995 Pilot Project Scholarship Program on grounds that it violated state constitutional law. The voucher program provided state funds to Cleveland parents enabling them to send their children to private schools, including religious ones. Although it had been challenged as a violation of the separation of church and state, the Ohio Supreme Court ruled only that the program could not continue because it violated a state constitutional provision barring bills that contain more than one subject. The 1995 voucher program had been passed within a massive state appropriations bill.

At the urging of Gov. Bob Taft, the Legislature enacted a new voucher plan on June 29, called the 1999 Ohio Pilot Project Scholarship Program. It is identical to the Cleveland voucher program of 1995. People for the American Way, a national civil rights group, and various education groups representing Ohio taxpayers sued the state Department of Education in federal court on July 20 seeking a declaration that the voucher program violates the establishment clause of the First Amendment. They also sought an injunction barring the program from operating during litigation.

U.S. District Judge Solomon Oliver is to preside over hearings on Aug. 13 regarding People for the American Way's request for a preliminary injunction. On Aug. 9, however, Ohio Attorney General Betty D. Montgomery filed a 57-page motion asking Oliver to dismiss the challenge to the new voucher program.

Montgomery argues that the voucher program does not violate the separation of church and state because it does not intend to provide benefits to sectarian institutions. Instead, she said, the program is intended “to give low-income children in a severely distressed school district the option to attend private schools.” The attorney general also argued that the establishment-clause challenge to the new voucher program “lacks merit as a matter of law because the Ohio pilot scholarship program is a neutral and nondiscriminatory form of financial aid to families, which permits them to exercise the private choice to use the scholarships equally at religious or non-religious schools, and which thus satisfies the principles of establishment clause law laid down in a line of Supreme Court cases.”

Moreover, it would be unlawful not permit religious schools to participate in the voucher program, Montgomery argued.

“The essential thesis of the State's defense is that, far from being unconstitutional to include religious and non-religious schools equally according the same strictly secular eligibility requirements, it would be unconstitutional for the State to exclude religious private schools from the scholarship program solely on the ground that these schools incorporate religion into their curriculum,” Montgomery wrote. “Such an exclusion would be content-based discrimination in violation of the Free Speech Clause of the First Amendment, depriving the religious schools and the families they serve of their equal right to pursue topics of theology and spirituality, as their intellects and consciences so dictate.”

Elliot Mincberg, an executive vice president and legal director for People for the American Way, contends that Ohio's new voucher program runs afoul of U.S. Supreme Court precedent and therefore must be invalidated.

Mincberg cited as precedent the Supreme Court's ruling in Committee for Public Education v. Nyquist in 1973. In that case, the high court struck down a New York state program that provided tuition reimbursements to poor parents whose children attended private schools, the majority of which were sectarian. The court ruled that the state program had the primary effect of advancing religion.

“Our concern is that the Ohio Supreme Court made a clear and fatal error by disregarding the Supreme Court's Nyquist decision, even though lower courts in the state agreed that Nyquist should control,” Mincberg said. “The vast majority of private schools in the Cleveland area are religious; the deck is stacked in favor of and is pushing people toward religious schools.”

In Montgomery's answer to People for the American Way's lawsuit, she acknowledged that a “large percentage” of the voucher program's funds would flow to religious schools. Montgomery nonetheless argues that those funds are not intended to advance nor endorse religion, but are part of a secular state initiative to improve secondary education.

Calling the Cleveland public schools “deeply troubled,” Montgomery claimed “the only motivation for the pilot program is to test the purely secular policy idea, much debated in the last decade, that providing private-school scholarships to urban students will both improve their educational opportunities and help to improve the education available in the local public schools.”