- The Washington Times - Tuesday, January 16, 2001

School vouchers hit a judicial land mine last month in the U.S. 6th Circuit Court of Appeals. A divided 2-1 panel majority in Simmons-Harris vs. Zelman (Dec. 11, 2000) held Cleveland's pilot program to broaden the educational choices for low-income families heretical to the church-state separation required by the First Amendment. The anti-religious reasoning of the majority would shipwreck President-elect George W. Bush's school voucher agenda. It is more to be marveled at than imitated.

Some public school districts are stunning success stories, but many are dismaying failures like Cleveland's that cry out for new ideas, including competitive alternatives. Its voucher scheme was born of a federal district court order placing the local school board under state supervision because of mismanagement. In response, the Ohio General Assembly in 1995 enacted the Ohio Pilot Project Scholarship Program confined to state managed school districts like Cleveland's that had flunked their educational tasks.

The program's scholarships are two-tiered: payments of 90 percent of tuition for low-income families, with a yearly cap of $2,500 for participating schools; and payments of 75 percent of tuition for other families with an annual ceiling of $1,875. The scholarship sums were vastly lower than the average per capita cost of a public school student, and thus did not subsidize private schools at the expense of their public school competitors.

Eligibility for the program was restricted to private schools located within the Cleveland school district and public schools in adjacent districts. Discrimination based on race, religion or ethnicity was prohibited. For the 1999-2000 school year, 3,761 students enrolled in the program, 60 percent were from families in poverty, and 96 percent attended sectarian schools, a substantial percentage jump from a low point of 78 percent in an earlier year. The sectarian institutions typically interweave religion with secular instruction. The Parent Handbook of one participating school sermonized that, "The one cardinal objective of education to which all others point is to develop devotion to God as our Creator, Redeemer and Sanctifier."

Writing for the panel majority, Circuit Judge Eric L. Clay began by hotly denying that subterranean views about school policy would be smuggled into his constitutional appraisal: "We recognize the significance that this issue holds for many members of our society. The issue of school vouchers has been the subject of intense political and public commentary, discussion and attention in recent years, and we would be remiss if we failed to acknowledge the seriousness of the concerns this case has raised. We do not, however, have the luxury of responding to advents in educational policy with academic discourse on practical solutions to the problem of failing schools." But as Queen Gertrude retorted in "Hamlet," "The lady doth protest too much, me thinks."

The First Amendment prohibits any law respecting an establishment of religion. Chiaroscuro precedents of the U.S. Supreme Court exonerate a law from establishment clause condemnation if it sports a secular purpose and its principal or primary effect neither advances nor thwarts religion. Cleveland's voucher program indisputably advanced the secular goal of expanding and upgrading educational alternatives for elementary or secondary school students who had previously been languishing in substandard public schools. No religious discrimination in students election was permitted. Participating schools were required to satisfy the secular achievement standards for public schools and secular teacher credentialing requirements. Moreover, public schools in adjacent school districts were eligible for the vouchers. There was no evidence that scholarship amounts or the eligibility rules had been Jesuitically inspired to allure parents toward sectarian schools.

Judge Clay pontificated, nevertheless, that the principal effect of the voucher scheme was forbidden religious promotion or indoctrination because the overwhelming majority of participating parents had chosen to enroll their children in sectarian institutions. But marginal seems the more apt constitutional characterization of the vouchers, like the federally funded GI scholarship program for veterans that entitled them to enroll at either secular or sectarian colleges or universities. Similarly, suppose a Social Security recipient donates his monthly check to his church, mosque or synagogue. The payment in such cases advances religion, but the Social Security program itself satisfies the establishment clause. The latter restricts government, not private choices favoring religion over non-religion with no artificial government skewing toward the former.

Cleveland's voucher program advances religion only if parents choose a sectarian over a secular institution, either public or private. Furthermore, the financial eligibility rules for participating schools in effect discourage, not encourage, a flight to private schools from free public schools. Scholarships are below full tuition costs, and much less than the per capita public school spending of more than $7,000. They are available only in underachieving school districts subject to state supervision or management. Indeed, only 3,701 students had enrolled in the program during the last school year, a tiny fraction of total enrollment.

The trial court made no finding, moreover, that private school enrollment had climbed after the inauguration of Cleveland's vouchers. Judge Clay's insistence that its primary effect was inculcation of religion was thus naked speculation indicative of hostility.

The Simmons-Harris case is destined for the Supreme Court. Shouldn't it instruct that so long as state laws seek secular objectives in religiously neutral ways and are not subterfuges for government-sponsored proselytization, then the establishment clause is undisturbed?

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