- The Washington Times - Tuesday, December 12, 2000

A federal appeals court yesterday struck down the Cleveland school-voucher program as unconstitutional, saying it violates the separation of church and state.

The much-awaited ruling from the U.S. District Court of Appeals sets the stage for what many believe will be a school-choice showdown before the U.S. Supreme Court.

In a decision hailed by voucher opponents and denounced by choice supporters, a three-judge panel from the 6th Circuit voted 2-1 to uphold a decision by U.S. District Judge Solomon Oliver, a Clinton appointee, who ruled in December 1999 that the Cleveland Scholarship Program was unconstitutional because most of the 56 schools that participate in the program had religious affiliations.

State Attorney General Betty Montgomery said no immediate decision has been made on an appeal. She said the Ohio Supreme Court has upheld the state's argument that parents have a choice in how to use the vouchers and therefore there is no "constitutional entanglement."

About 4,000 low-income Cleveland students take part in the program, which allows them to use publicly funded scholarships known as vouchers to pay for tuition at private schools selected by their parents.

"This is the U.S. Supreme Court test case we've been waiting for to remove the constitutional cloud from school choice once and for all," said Clint Bolick, vice president and litigation director at the Institute for Justice in Washington, who represented Ohio voucher families in the case.

"This decision is a disaster for every schoolchild in America, but it will be short-lived," Mr. Bolick predicted. "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."

Appeals Judges Eric Clay and Eugene Siler Jr. voted to uphold the ruling by Judge Oliver, who said the program "has the effect of advancing religion through government-supported religious indoctrination."

In the majority ruling, the appeals court said: "To approve this program would approve the actual diversion of government aid to religious institutions in endorsement of religious education, something 'in tension' with the precedents of the Supreme Court."

The third judge in the case, James Ryan, dissented, saying that Supreme Court precedent makes it "unmistakably clear that the voucher program passes constitutional muster."

Voucher critics were quick to praise the federal court's decision, noting that it establishes a scenario where the Supreme Court will likely agree to take the case.

"This is a great early Christmas present for America's public schools and our constitutional principles," said Barry W. Lynn, executive director of Americans United for Separation of Church and State. "This means that taxpayer money will not be diverted from public schools to private religious schools."

An appeal of the Simmons-Harris v. Zelman ruling would give the U.S. Supreme Court an opportunity to directly address the voucher issue for the first time, setting up a "historic showdown," said Mr. Lynn.

This will be the most important case about public schools and church-state separation in decades, he said.

Bob Chase, president of the National Education Association, which has vehemently opposed vouchers and spent millions to defeat them, said in a statement that the Ohio program has a poor track record on student achievement. He also noted that the "troubled two-year program has also suffered from financial abuse and mismanagement."

"Children and taxpayers would be much better served by proven education reforms that serve all children," said Mr. Chase.

Anne Bryant, executive director of the National School Boards Association, said the Ohio ruling should help stem the spread of vouchers into other states.

"Public money should be reserved for public schools, where the majority of America's children are educated well," said Mrs. Bryant.

Jeanne Allen, president of the Center for Education Reform in Washington, called the court's decision a "devastating blow" for youngsters and families in Ohio.

"The program is a lifeline for thousands of disadvantaged young people in Cleveland," said Mrs. Allen. "It is their best hope for educational opportunities and serves as a bold example of reform for other states and cities."

Mrs. Allen noted that federal and state governments already provide billions of dollars in support to religiously affiliated organizations such as hospitals, universities and social-service providers. The government also provides vouchers for low-income parents to help fund day care at private and parochial facilities.

"Thousands of students in higher education use federally funded Pell grants, national direct student loans and GI benefits to attend religious colleges and universities," she said. "In Florida alone, the Department of Children and Family Services will spend $46 million for social work performed by Catholic, Baptist, Jewish, Lutheran and other faith-based organizations.

"The state also funds religious institutions to administer juvenile justice programs," Mrs. Allen noted.

Over the past few years, lower courts across the country have split in their support or dismissal of voucher programs, increasing the odds that the Supreme Court will intervene, said Mr. Bolick.

He hopes that the high court will take up the case "before their current term ends in June."

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