U.S.

School Vouchers Flunk Out In Court

By CBSNews.com staff CBSNews.com staff

December 11, 2000 / 3:32 PM EST / CBS

A federal appeals court on Monday rejected a Cleveland school voucher program, ruling it violates the Constitution's separation of church and state.

The program had operated for more than four years in Cleveland.

Monday's ruling drew immediate praise from the National Education Association, which calls itself the nation's oldest and largest organization committed to advancing the cause of public education.

"Children and taxpayers would be much better served by proven education reforms that serve all children," says Bob Chase, president of the NEA, which represents some 2.5 million teachers and other education professionals. "Now is the time to focus on improving opportunity for all students, rather than being engaged in divisive and counterproductive battles."

Chase says the Cleveland program itself has proved his case, as "voucher students at some of the newly established private schools in Cleveland are achieving at significantly lower levels than public school students in all subjects."

Both sides predict that the issue will go to the U.S. Supreme Court in what could be a test case over whether tax money can be used to send students to private schools.

A three-judge panel of the 6th U.S. Circuit Court of Appeals voted 2-1 to uphold a lower court judge's December 1999 decision that the voucher program was unconstitutional because most of the 56 schools that received voucher money had a religious affiliation.

Appeals Judges Eric Clay and Eugene Siler Jr. upheld U.S. District Judge Solomon Oliver's ruling. Oliver had ruled that the program "has the effect of advancing religion through government-supported religious indoctrination."

Judge James Ryan concurred with parts of the decision.

Clint Bolick of the Institute for Justice, a Washington-based organization that argued in support of the voucher program, said he will urge the U.S. Supreme Court to hear the case. Bolick said he hopes the high court agrees to hear the case as soon as possible to resolve the issue for the 4,000 students in Ohio's experimental program.

"This is the test case that everyone's been waiting for," said Bolick, who has argued other court cases in support of government-funded, school choice programs. "I can't imagine that the Supreme Court would allow 4,000 kids to be just yanked out of the only good schools they've ever attended."

Cleveland's voucher program gives needy families with children in kindergarten through sixth grade up to $2,500 in tuition vouchers. The state authorized the program as an experiment beginning in September 1996.

Ohio Attorney General Betty Montgomery declined to comment on Monday's ruling, saying that her staff was reviewing it.

Advocates of the program argued that it gives low-income parents an alternative to the Cleveland public schools. Opponents said it is an illegal use of public money.

"This means that taxpayer money will not be diverted for use by priate, religious schools," said Barry Lynn, executive director of Americans United for Separation of Church and State, which part of a coalition that sued to challenge the Cleveland program.

Bolick said the U.S. Supreme Court should have additional motivation to hear the dispute because state and federal courts have reached conflicting conclusions.

The Supreme Court had passed up opportunities to consider cases from Wisconsin and Maine.

The high court let stand a voucher program that includes religious schools in Milwaukee, and did not take up a challenge to a 1999 federal appeals court ruling allowing Maine to subsidize children who attend only nonreligious private schools.

Fights over tuition vouchers also have been waged in many state legislatures, and in the courts of Arizona, New Jersey, Ohio, Pennsylvania and Vermont.