Fight for vouchers continues

Posted: Wednesday, December 13, 2000

WASHINGTON -- School vouchers have taken hits at the ballot box, in legislatures and before the courts.

Hit again on Monday, supporters vow to keep up the fight, plotting a challenge to a federal ruling against a Cleveland voucher program. They are considering what could be their best hope: Another Supreme Court hearing on government aid for religious schools.

''We've been waiting a long time for a Supreme Court case and this looks like this is it,'' said Clint Bolick, a lawyer for the parents of 4,000 children attending Cleveland's private and church schools with state-issued tuition vouchers.

On Monday, the 6th U.S. Circuit Court of Appeals in Cincinnati struck down the Cleveland program, which provides $2,500 to help low-income families pay tuition for schools outside the city's troubled district.

The program had survived an earlier constitutional challenge in the Ohio Supreme Court, but opponents then took their case to the federal courts.

As in Ohio, lower courts across the country have divided over whether spending tax money on religious education is an unconstitutional violation of the separation between church and state.

The U.S. Supreme Court has narrowed -- but not overturned -- its landmark 1973 decision striking down vouchers.

It has allowed pro-voucher decisions from lower courts to stand, and in June, it ruled that the government may provide computers to religious schools.

Voucher supporters, while disappointed by Monday's ruling in Ohio, hope this case will provide a vehicle for the high court to squarely take on the issue of direct government support for religious schools.

Vouchers have sparked debate across the country. Twenty-one states are now considering vouchers, and a host of states have considered -- and rejected -- ballot initiatives creating programs.

All eyes are now on court battles in three pioneering states -- Ohio, Wisconsin and Florida. But so far, the U.S. Supreme Court has stayed out of the fray -- declining to review a Milwaukee program or a voucher fight from Maine.

Supporters had no immediate game plan to convince the high court to take the Cleveland case. But both sides of the debate believe the Cleveland case is ripe enough for justices who have nibbled on the issue of state support for church schools.

For one, the Cleveland case has two obviously conflicting rulings the court could clear up with a decision: The state supreme court approved of the program, but the federal court struck it down.

And unlike other school-choice cases punted by the high court, the Cleveland case affects real people -- something the court looks for in considering what cases to take.

In this case, thousands of school children will lose their vouchers and possibly be forced to change schools if the court does not step in.

So far, the flurry of federal and state rulings has brought little consensus on the matter. Rulings have flip-flopped in Ohio and Florida. And in Maine and Vermont, state and federal appeals courts have rejected attempts to expand small voucher programs to include religious schools.

The U.S. Supreme Court, for its part, has gone along with programs that indirectly help religious schools by helping to pay for computers and teachers, though it has not given its blessing to direct aid.

No one agrees on how far the high court will go.

''This is an area where evolution takes place in steps, not leaps,'' said Bolick, the pro-voucher attorney with the Institute for Justice who argued the Cleveland case.

''The court now has issued six consecutive rulings upholding indirect aid, so we're feeling hopeful. Maybe we can make this the lucky seven.''

But it's not apparent that there's consensus on the court to overhaul decades of precedent, said Bob Chanin who is advising the National Education Association, a teachers' union that bitterly opposes vouchers.

''Everyone knows the court is badly split on this issue,'' he said. ''What we're talking about is basically an overhaul of a landmark ruling.''

Some opponents hope the lower court rulings like Monday's in Ohio are enough to derail vouchers on their own. They send a signal that state voucher laws ''would only bring about litigation that they would lose,'' said Phil Baum, executive director of the American Jewish Congress.

Ohio authorized the program, which is open to elementary school children, as an experiment in 1996, and the bulk of school are affiliated with local houses of worship.

Clevelander Roberta Kitchen said eliminating religious schools from the program would negate the whole idea of offering her the same choice as more-affluent families. Her legal ward, Toshika Bacon, is a fourth-grader at St. John Nottingham school, a Lutheran school.

''The morals and character building that are taught there are just as important and I appreciate that,'' she said. ''If this is going to be a choice, I think I should be able to choose the school that would best fit the needs of my children.''

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