Ohio Supreme Court hears oral arguments in Cleveland voucher case

Tuesday, September 29, 1998

Rev. Larry Mays...
Rev. Larry Mays, of the People For The American Way Foundation, gestures as Democratic secretary of state candidate Charleta Tavares joins him in an anti-school vouchers rally, on the grounds of the Ohio Statehouse, in Columbus, Ohio.

Since 1995 the Ohio Pilot Scholarship Program has provided state funds to enable poor Cleveland students to attend private religious schools. A group of state taxpayers, however, wants that to stop.

The taxpayers have asked the Supreme Court of Ohio to uphold a 1997 state appellate court decision that found the program in violation of the First Amendment and parts of the Ohio Constitution. If the state's high court does so, the program would cease.

Represented by a cadre of civil rights and education attorneys from Washington, D.C., the taxpayers argued yesterday before the seven-member Ohio Supreme Court that the state court of appeals had correctly ruled that the scholarship program violated the principle of separation of church and state embodied in both the First Amendment and the state constitution.

State attorneys and the Institute for Justice, a libertarian law firm based in Washington, argued that the program, which offers vouchers worth up to $2,500 to qualifying parents, does not violate the separation of church and state. Instead, state attorneys maintained that the program is an attempt to give Cleveland students an alternative to the city's failing public schools.

“The scholarship program is a forward-looking experiment in school-choice legislation designed to assess the benefits of empowering poor, principally minority families with the same right that wealthier families have long enjoyed – the right to send their children to the school of their choice,” the state argued in its brief to the high court.

Elliot Mincberg, executive vice president and legal director of People for the American Way, one of the civil rights groups representing opponents of the voucher program, said he hoped the Ohio Supreme Court would stand by the lower court's ruling.

Mincberg said that the Ohio Supreme Court should not be swayed by the finding of the Wisconsin Supreme Court that a Milwaukee voucher plan, very similar to Cleveland's, did not violate religious-liberty principles of the First Amendment.

“We think the Wisconsin decision was an aberration, and putting it aside, courts have consistently ruled that voucher programs violate the religious-liberty clauses of federal and state constitutions,” Mincberg said.

Mincberg also termed “illusory” the state's argument that the voucher program merely offers more choice to poor Cleveland students.

Noting language from last year's appellate court ruling, Mincberg said that so far the overwhelming majority of Cleveland private schools participating in the scholarship program are private and sectarian.

“While the scholarship program facially suggests neutrality, we cannot ignore the fact that not a single public school chose to participate in the program for the 1996-97 school year,” Judge John C. Young wrote for the appellate court. “The lack of opportunity to apply scholarship aid toward a secular education, when coupled with the well-documented failings of the Cleveland City School System, creates a strong incentive for students to undertake sectarian education.”

Additionally, most of Cleveland's sectarian private schools are operated by the Diocese of Cleveland, the civil rights groups noted in their brief to the Ohio Supreme Court. The diocese lists among its “Goals for Catholic Schools in the Diocese of Cleveland” the objectives “to communicate the gospel message of Jesus,” and “to provide instruction in religious truths and values in such a way that they become an integrated part of the school program,” the civil rights groups' brief stated.

State attorneys, however, have argued that the voucher program is neutral and does not advance religion because it also provides tutorial grants to parents who choose to keep their children in the city schools. According to state attorneys, the voucher program's two distinct governmental benefits, one targeting primarily religious schools and the other flowing primarily to secular schools, make the program permissible under the establishment clause.

Young did not buy the state's argument.

“There is in fact no precedent for the state's position that a governmental benefit which has the primary effect of advancing religion can be made neutral by the application of a second distinct governmental benefit which flows primarily to secular institutions,” Young wrote. Moreover, Young said that “given the well documented educational failure of the Cleveland City School District, it cannot be seriously argued that sending a child to a private sectarian school at state expense, and providing a child attending a Cleveland City School District school with tutoring at state expense, are even remotely equivalent benefits.”

Mincberg said he would not predict when the Ohio Supreme Court would decide the case. He added that he hoped it would be during this school year.

Mincberg's group is also involved in the appeal of the Wisconsin Supreme Court decision to the U.S. Supreme Court.