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'Scholarship' Aid To Ohio Religious Schools Violates Church-State Separation, Federal Court Rules

At St. Rocco School in Cleveland, Ohio, the Roman Catholic faith touches everything.

As the school's handbook explains, an "integral part of the school program is instruction in religious truths and values. These values permeates [sic] the whole atmosphere of the school."

All students, whether Catholic or not, must participate in mass, daily religious classes and other religious activities and must receive a religion grade. Both students and their parents "are expected and obligated to attend and participate in the week-end liturgy." Parents are asked to help their children practice specific prayers at each grade level. They learn the "Sign of the Cross" and the "Hail Mary" in kindergarten. The "Our Father" and "Glory Be to the Father" comes in first grade.

Students at St. Rocco's are even expected to join and contribute to the Society for the Propagation of the Faith.

Despite St. Rocco's uncompromising religiosity, it and 45 other private religious schools in Cleveland, receive millions of tax dollars through the state's school voucher program.

That may change, however, if a federal court judge has his way.

On Dec. 20, Judge Solomon Oliver Jr. struck down Ohio's 4-year-old voucher plan, ruling that it violated the constitutional separation of church and state. Oliver concluded that the program transgressed the First Amendment because it results in government-sponsored religious indoctrination and gives parents an incentive to send their children to religious schools.

"(T)his court concludes that the Voucher Program is not neutral," Oliver ruled in Simmons-Harris v. Zelman. "Because of the overwhelmingly large number of religious versus nonreligious schools participating in the Voucher Program, beneficiaries cannot make a genuine, independent choice of what school to attend. A program that is so skewed toward religion necessarily results in indoctrination attributable to the government and provides financial incentives to attend religious schools. For both these reasons, the court finds the Program to be in violation of the Establishment Clause."

Oliver, appointed to the federal bench by President Bill Clinton in 1994, also emphasized the importance of church-state separation as a principle worth defending.

"In promulgating the First Amendment, the framers of the Bill of Rights sought to protect the colonists' right to be free from government inculcation of the theologies and doctrines of a faith to which they did not subscribe," Oliver wrote. For support, he quoted generously from James Madison's Memorial and Remonstrance and Thomas Jefferson's Virginia Statute for Religious Liberty, which Oliver explained, "spoke out against the dangers of requiring citizens to support a faith which was not their own."

The history of the "Ohio Pilot Project Scholarship Program" is a long and tortuous one. The Ohio legislature originally passed the plan in 1995, issuing vouchers of up to $2,500 for Cleveland students to attend private schools, including religious schools. A legal challenge was promptly filed in state court, leading to the program eventually being struck down by the Ohio Supreme Court in May 1997. However, the justices ruled against the program on a procedural technicality and said it did not violate church-state separation.

The Ohio legislature then scrambled to quickly pass the voucher program again, paying careful attention to procedural rules laid out by the state Supreme Court. This prompted a federal legal challenge by education and civil liberties groups including the Ohio Education Association, the American Civil Liberties Union and Americans United for Separation of Church and State.

Americans United and its allies charged that the voucher scheme clearly resulted in taxpayer aid to religion. Of the 56 private schools participating in the voucher program, 46 offer religious instruction. As a result, 96 percent of the students who receive vouchers attend religious schools.

To highlight the religious nature of the private schools receiving public funds under the voucher program, Oliver's 61-page ruling pointed to St. Rocco and the mission statements of several other participating private schools.

St. Patrick School, for example, summarizes its educational philosophy with: "Catholic education begins with faith that God, in creating, gifted us with life. He became one of us in His Son Jesus, and in the person of His Spirit awaits our response to His unconditional overture of love.... It is from this perspective that the educational ministry of the Catholic community flows." The same school lists as its number one objective of education, "To communicate the gospel message of Jesus"

Oliver's ruling also quoted the handbook at St. Mark Lutheran School, which not only requires participation in daily religion classes, but also explains that it is "highly inconsistent for any parents to send a child to this school if they are not a Christian and/or not interested in learning about Jesus Christ."

After noting these and several other examples, Oliver explained that "it can generally be said that a central part of each school's program is instruction in the theology or doctrine of a particular faith and that religion and religious doctrines are an integral part of the entire school experience."

Oliver's decision is the first direct federal court ruling on a state program granting voucher aid to religious schools, making it extremely important in the broader argument over education reform. (The U.S. 1st Circuit Court of Appeals ruled last summer against parochial school tuition subsidies in a Maine case, but the controversy arose out of a complaint from parents demanding public funds for private religious education, as opposed to a traditional voucher plan.)

"Judge Oliver's decision is a powerful rebuke to those who believe the government can force taxpayers to support churches or church schools," said Barry W. Lynn, executive director of Americans United. "The message from the courts is clear: It's time to quit wasting time with these unconstitutional schemes and find real ways to improve public education."

However, Clint Bolick, litigation director at the Institute for Justice and one of the nation's leading pro-voucher advocates, described the ruling as "preposterous" and told reporters that the appeal process would begin immediately. (The Cleveland program, funded at $11.2 million this year, will continue to operate, pending an appeal of the ruling to the 6th Circuit Court of Appeals.)

One thing both sides appear to agree on is that this case may ultimately be resolved by the U. S. Supreme Court.

"The Ohio voucher case, more so than any case to date, is ready for review by the Supreme Court," said Americans United Legal Director Steven Green. "I believe this is now on a fast track to the justices."

While Oliver's decision was a devastating defeat for voucher supporters, this was but one of multiple defeats during this winter of their discontent.

The Supreme Court delivered more bad news to supporters of school vouchers when it announced Dec. 13 that it would not hear an appeal of a religious school aid case from Vermont, thereby letting stand a state supreme court ruling that supported church-state separation.

In Vermont, state law permits local districts that do not have their own public schools to provide tuition for families to go elsewhere. However, to avoid First Amendment difficulties, the law allows only public and nonsectarian private schools to participate in the funding. Religious schools are excluded from the program

The Chittenden School District, whose population is too small to necessitate a public high school, adopted a policy in December 1995 that permitted public funding of religious school tuition in spite of the state law's prohibition. Subsidies were specifically approved for students at Mount Saint Joseph Academy, a private Catholic high school in Rutland. After the state refused to authorize the payments, the local board filed suit.

A state superior court sided with the state in June 1997, ruling that the town could not use vouchers for religious schools. On June 11, 1999, the Vermont Supreme Court issued a unanimous ruling that said the use of tax dollars to pay for religious school tuition violates the state constitutional provision barring tax support of religion.

Vermont Supreme Court Justice John Dooley, writing for the majority, noted that Chapter 1, Article 3 of the Vermont Constitution states that no one can be "compelled to...support any place of worship," and that the language used by Thomas Jefferson to create a "wall of separation between church and state" is "essentially the same as that in Article 3 of our constitution."

The U.S. Supreme Court's decision not to hear the Vermont controversy came just one month after the high court announced it would not hear an appeal of a similar religious school aid case from Maine. In both instances, the justices denied the appeals without comment.

Fresh from their setbacks at the Supreme Court, voucher advocates also lost at the state level when a Pennsylvania appellate court struck down a voucher program created by a school district in a Philadelphia suburb.

In March 1998, the Southeast Delco School Board voted unanimously to create a "school choice" scheme at the local level. Under the plan, parents with children in private schools in the county would receive $250 for each child attending a private kindergarten, $500 for each child in grades one through eight and $1,000 for children in grades nine through twelve. The board estimated the project would cost taxpayers at least $1.2 million annually.

Despite political support from Pennsylvania Gov. Tom Ridge (R) and the Roman Catholic Archdiocese of Philadelphia, and legal support from Bolick and Institute for Justice, the controversial plan was challenged in court before a dollar could be spent in implementation.

Delaware County Judge Joseph F. Battle struck down the program Oct. 14 before the case had even gone to trial, ruling that the school board had overstepped its statutory authority. Battle, however, did not rule on the issue of whether the public financing of religious school tuition would violate the separation of church and state.

On Dec. 23, the seven judges on Pennsylvania's Commonwealth Court (the state appellate court) issued a unanimous ruling in support of the same conclusion.

Writing for the majority in Giacomucci v. Southeast Delco School District, Judge Rochelle S. Friedman agreed that the school district's action goes beyond the Pennsylvania school code, which sets guidelines on how school districts can govern.

"Clearly, [the school code] authorizes school districts to spend money to build, maintain and equip schools and to educate public school children," Friedman said. "It is, however, far too great a leap of logic to conclude that...the General Assembly also intended school districts to provide financial incentives to students choosing not to attend its schools...."

Like the lower court, the state appellate court dealt only with the issue of whether the county had the authority to create the voucher program, not whether the vouchers themselves are unconstitutional.

Members of the Southeast Delco board told reporters after the defeat that they were not planning to appeal.

"Eventually the Supreme Court will have to decide the issue of whether Americans can be taxed to support private religious education," concluded AU's Lynn. "With all of this activity in lower courts, I think we're getting a lot closer to a definitive ruling that will answer the question once and for all."