The ruling by U.S. District Judge Solomon Oliver Jr. once again creates uncertainty for the thousands of parents who send their children to voucher schools. But although he made permanent his order to shut down the program, he stayed it pending appeal, so students can remain in their current schools.
Oliver said there has been no attempt to guarantee that state aid only supports secular educational functions of the participating schools. He also said parents of students in the program do not have a true choice between sending their children to a sectarian or non-sectarian school.
"Thus, the program has the effect of advancing religion through government-supported religious indoctrination," Oliver said.
A trial had originally been scheduled to start Dec. 13 but Oliver decided to rule on the case based on the written arguments before him.
Oliver's decision was not a surprise. The judge had said in an earlier ruling that voucher opponents had a strong argument that the program is unconstitutional because it appears to have the "primary effect of advancing religion." Most of the participating 56 voucher schools are religious institutions.
The experimental program gives needy children the opportunity to attend private schools in Cleveland. More than 4,000 students from kindergarten through sixth grade receive up to $2,500 in tuition vouchers.
Oliver halted the program just before the start of this school year, saying it couldn't resume until he determined its constitutionality. But he changed the ruling to allow only students who participated in the past to continue getting funding.
Oliver was later overruled by the U.S. Supreme Court, which said the program could remain intact while the lower courts ruled on it.
This is the second time the voucher program has been found unconstitutional.
Voucher opponents filed a similar lawsuit on the state level shortly after the Legislature started the program in 1995 in response to concern from Cleveland residents and public officials about the quality of education at the city's public schools.
The lawsuit worked its way up to the Ohio Supreme Court, which ruled in May that the program doesn't violate the legal separation of church and state but is still unconstitutional because of the way the Legislature created it.
The court said that by including the program in the 1995 general spending bill, lawmakers violated the Ohio Constitution's rule that requires the Legislature to address only one issue in each bill.
In July, lawmakers revived the program by approving funding for it within a two-year education budget signed by Gov. Bob Taft, a voucher supporter.
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