The Constitutionality of School Vouchers
September 17, 2002
The public schools of Cleveland, Ohio, consistently rank
among the worst in the nation. The majority of Cleveland’s 75,000 children
attend inner-city schools. Most are minority students from low-income
families. In 1995, a Federal District Court declared the situation confronting
the Cleveland school district a “crisis of magnitude” and placed the entire
district under state control. According to a 1996 Audit Report, the district
failed to meet any of the 18 state standards for minimal acceptable
performance. Only one in 10 ninth graders could pass a basic proficiency
examination and students at all levels performed at a dismal rate compared with
students in other Ohio public schools. More than two-thirds of high school
students either dropped or failed out before graduation. Of those students who
managed to reach their senior year, one of every four still failed to graduate.
Of the students who did graduate, few could read, write or compute at levels
comparable to their counterparts in other cities. It is this crisis that gave
birth to Ohio’s Pilot Scholarship Program (Program).
Ohio’s Program
In operation since the 1996-97 school year, the Program
provides financial assistance to families in any Ohio school district that is
being supervised and operated by the state superintendent pursuant to a federal
court order. Cleveland is the only Ohio school district to fall within this
category.
During the 1999-2000 school year, 56 private schools
participated in the Program, of which 46 (or 82%) had a religious affiliation.
Consequently, in 1999 a group of Ohio taxpayers commenced an action in the
United States District Court, seeking to enjoin the program on the grounds that
it violated the Establishment Clause of the United States Constitution.
The United States Supreme Court was asked to decide whether
the state of Ohio’s Program, designed to provide educational choices to families
with children who reside in the Cleveland City school district, offended the
Establishment Clause. Noting that Ohio’s Program was enacted for a valid
secular purpose, the Court reviewed its earlier decisions, which have drawn a
distinction between government programs that provide aid directly to religious
schools and programs of true private choice, in which government aid reaches
religious schools only as a result of the genuine and independent choices of
private individuals.
Three times the Court has been presented with “true private
choice” cases, and on each occasion the Court rejected the Establishment Clause
challenge. In those cases, the Court held that if a program is enacted with a
secular purpose, and provides assistance directly to a broad class of citizens
who, in turn, direct government aid to religious schools wholly as a result of
their own genuine and independent private choice, the program is not readily
subject to challenge under the Establishment Clause. Any incidental advancement
of religion or the perceived endorsement of a religious message is reasonably
attributable to the individual recipient and not the government, whose
involvement ends with the disbursement of benefits to the individual.
According to the Court, Ohio’s program does not coerce
parents into sending their children to religious schools. Instead, it provides
parents with an option to obtain a Program scholarship and then empowers parents
with a choice of whether to spend the scholarship at a religious school.
Because the Program was designed as a part of the state’s general undertaking to
provide educational opportunities to children of Cleveland’s failed school
district, it is neutral in all respects toward religion. The Program extends
assistance directly to a class of persons defined without regard to religion.
Moreover, all schools within the Cleveland district, whether religious or
nonreligious, may participate, including public schools adjacent to Cleveland.
The Program’s benefits are available to participating families on neutral terms
without reference to religion; the Program’s only preference is for low-income
families, who receive greater assistance and priority in admission at
participating schools.
Voucher advocates celebrated the Court’s decision and some
even commented that the decision removed the major legal hurdles to such
programs.
Florida’s Program
However, within two months of the Court’s decision a state
judge struck down Florida’s school voucher program. The court held that the
Florida constitution clearly and unambiguously prohibits public money from
flowing to church schools or other sectarian institutions.
Like Florida, many state constitutions contain stricter,
more specific prohibitions about transfer of government money to religious
organizations. Consequently, the legal battle over the use of public money to
pay for students to attend church-affiliated schools is far from over as it
proceeds under state constitutional scrutiny.
For more information, contact Herlande Rosemonde, toll free
at 888-688-8500, or via e-mail at hrosemon@hklaw.com.
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