Supreme Test

Supreme Court Agrees To Hear Landmark Ohio Voucher Case Challenging Voucher Subsidies For Religious Schools

Cleveland mom Dorris Simmons-Harris didn't start out to make legal history. She was just looking for a fair shake for her son.

The year was 1995, and Ohio legislators had just enacted a voucher bill aimed at Cleveland residents. The lawmakers talked a good line, telling parents of inner-city children attending troubled public schools that they would receive an education at religious and other private schools at state expense.

Simmons-Harris was skeptical and believed that her son, who suffers from a learning disability, would not be welcomed with open arms at the private schools that were suddenly being showered with tax dollars.

"I was discussing with some friends of mine about the voucher [program], how it doesn't help all children," Simmons-Harris said. "Special-needs children are left behind."

Simmons-Harris was especially angry because the voucher program would siphon money away from already strapped public schools. "The public schools need that money," she said.

But Simmons-Harris did more than just gripe. She agreed to serve as lead plaintiff in a lawsuit designed to end the program as an unconstitutional violation of separation of church and state, and now she will make legal history. On Sept. 25, the U.S. Supreme Court announced it will hear Simmons-Harris' case.

Legal observers say the Zelman v. Simmons-Harris decision could be a blockbuster. For the first time, the high court has agreed to face the issue of vouchers head on. The repercussions from the court's ruling could be wide-ranging, either slamming the door on vouchers for good or opening up a new era of government-funded religion in the United States.

Just minutes after the high court announcement, Americans United Executive Director Barry W. Lynn told reporters, "This is probably the most important church-state case in the last half-century. It will be a historic showdown over government funding of religion."

Lynn added that Americans United, which helped bring the challenge to the Ohio plan, will urge the justices to strike down the voucher scheme. "Voucher programs force taxpayers to put money in the collection plates of churches," he said. "The court should never permit this to happen. The justices should uphold church-state separation and rule forcefully against this reckless scheme."

Legal observers agree that the dispute bears close watching. "Aside from threatening the continued viability of our public schools, a pro-voucher decision by the Supreme Court would give a significant practical and legal boost to the 'faith-based initiatives' being proposed," said Ayesha Khan, Americans United legal director. "Such a decision would blow a hole through the wall that separates church and state."

Steven K. Green, former legal director for Americans United and a leading national authority on the church-state implications of vouchers, concurs. "This case is likely the most important private school funding case in more than 50 years," he said. "It could authorize massive funding of religious and parochial schools through the side door. Other funding programs the court has upheld were at least somewhat limited in their amounts and uses. Voucher funds, on the other hand, pay for entire educational costs for the children and sometimes more and can be used for any activity including worship, catechism, or the purchase of Bibles."

The high court's action comes amidst ongoing national controversy over vouchers. Other than Ohio, only Wisconsin and Florida have programs, and neither is truly statewide. The Wisconsin program is limited to Milwaukee, and Florida's plan, while theoretically statewide, currently operates only in Pensacola.

Legislators in several states considered voucher bills last year, and although recent public opinion polls show support for the concept slipping, proposals appear regularly in states like Pennsylvania, New York, Indiana, New Mexico, California, Texas, Louisiana, Arkansas, Michigan, Virginia and others.

Members of Congress have proposed federal voucher bills as well, often labeling them "experiments" and limiting them to low-income populations. President George W. Bush included a voucher proposal in his education package this year but withdrew it in the face of expected opposition in Congress.

Observers on both sides of the question agree that the high court's action comes at a time when the question of government funding of religion may be at a constitutional crossroads. If the court approves vouchers, it will likely spark an outbreak of new legislative proposals in the states and Congress. If vouchers are struck down, it will be a significant perhaps even fatal blow to the private school "choice" movement.

What makes the Ohio case so compelling is that the facts are crystal clear and not in dispute. The vast majority of private schools participating in the program are religious and maintain sectarian policies.

The student handbook of one Roman Catholic institution taking part in the voucher plan, St. Patrick School, is upfront about the fact that religion comes first. The handbook lists the school's first objective of education as "To communicate the gospel message of Jesus." Other education goals at the school include "To provide students with opportunity for growth in prayer" and "To provide instruction in religious truths and values in such a way that [students] become an integrated part of the school program."

At another voucher school, St. Mark Lutheran School, all students are required to take part in daily worship and weekly chapel services. The school handbook says the institution's "primary on our Lord and Savior, Jesus Christ" and warns parents it would be "highly inconsistent for any parents to send a child to this school if they are not a Christian and/or are not interested in learning about Jesus Christ."

For years Americans United and its allies in the public education and civil liberties communities have argued that schools maintaining sectarian and discriminatory policies such as these should be ineligible for taxpayer funding. Legislators in many states agreed and repeatedly voted down voucher proposals.

That changed in 1995 when the Ohio legislature enacted Cleveland's voucher program, which lawmakers called the "Ohio Pilot Project Scholarship Program." The controversial law allowed for vouchers of up to $2,250 for Cleveland students to attend religious and other private schools as well as suburban public schools. (No public schools have agreed to participate.)

The program was aggressively pushed by then-Gov. George Voinovich (now a U.S. senator). During his tenure as Ohio governor, Voinovich worked to funnel other types of tax assistance to private, mostly Catholic schools, such as Internet wiring and technology aid. He apparently saw the voucher program as the culmination of these efforts to assist private education and worked behind the scenes with the state's powerful Roman Catholic hierarchy to get the plan through the legislature. (See "Outrage in Ohio," February 2000 Church & State.)

Currently, 56 private schools participate in the Ohio voucher program. Forty-six of them are religious in nature. During the 1999-2000 school year, 3,761 students were enrolled in the program, and 96 percent of them were attending religious schools. The program was funded at $11.2 million in 2000.

Although often touted as aid to parents, the Ohio plan is essentially a subsidy to private usually religious schools. The checks are made out to parents but sent to the religious schools, where the parents redeem them by signing the check, which then goes into the school treasury. Opponents, arguing that this mechanism amounts to little more than government funding of religion, first challenged the program in state court, citing provisions of the Ohio Constitution that bar state aid to religious institutions.

The state court lawsuit, Simmons-Harris v. Goff, was filed Jan. 10, 1996. Sponsoring organizations included Americans United for Separation of Church and State, the American Civil Liberties Union, the National Education Association and People For the American Way.

The anti-voucher coalition pointed to Ohio's Constitution, which clearly states that taxpayers cannot be forced to support religious institutions. Article I, Sect. 7 asserts, "No person shall be compelled to attend, erect or support any place of worship, or maintain any form of worship against his consent...."

In addition, Article VI, Sect. 2 establishes a school trust fund, but limits funding to an "efficient system of common schools throughout the state" and specifically forbids allocating tax money to religious schools.

Despite these provisions, on July 31, 1996, a state judge upheld the Cleveland voucher program. On appeal, the Ohio 10th Appellate District Court overruled and struck down the plan on May 1, 1997. However, proponents appealed to the Ohio Supreme Court.

On May 27, 1999, the Ohio high court struck the program down on a technicality, holding that the legislature had authorized it in an unconstitutional manner. But the court went on to declare that the program does not violate the church-state separation provisions of the Ohio Constitution. Lawmakers in Ohio quickly reauthorized the program to address the Ohio Supreme Court's concerns, and it was soon up and running again.

Having exhausted appeals in the state courts, Americans United and its allies filed a new lawsuit against the plan in federal court. At about the same time, the American Federation of Teachers (AFT) and the Ohio Federation of Teachers filed a separate lawsuit in federal court.

The two cases raised many of the same issues. The AFT case, for example, featured as one of its plaintiffs Cleveland mother Deidra Pearson, who, like Dorris Simmons-Harris, was unimpressed with claims that religious and other private schools would educate children better.

Pearson had actually used a voucher to enroll her son, Austin, in a participating private school. But his grades declined, and the school seemed unresponsive. Frustrated, Pearson pulled Austin out of the private school and returned him to the public system. The boy, now attending Giddings Elementary in Cleveland, earns mostly A's and B's.

Pearson told the Cleveland Plain Dealer recently that the experience made her a believer in the value of the public schools.

"I have been able to come to the school at any time to visit the classroom, and with a welcoming smile from the teacher," she said.

The federal court consolidated the two cases, and on Dec. 20, 1999, U.S. District Judge Solomon Oliver held that the program favors religion and thus violates the U.S. Constitution's First Amendment. In his ruling, Oliver wrote, "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."

The following year the U.S. 6th Circuit Court of Appeals upheld Oliver's ruling. Voting 2-1 on Dec. 11, 2000, the court held that the plan runs afoul of Supreme Court precedents barring public aid to religious schools.

"To approve this program," observed the court, "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 program has continued to run while the final appeal to the Supreme Court was pursued.)

Ohio officials lined up big legal guns in the effort to keep the plan alive. As the case progressed through the federal courts, the state attorney general's office hired Kenneth Starr, the controversial ex-Whitewater prosecutor, to oversee its legal efforts and help prepare briefs.

Starr will apparently not argue the case on Ohio's behalf before the Supreme Court. In August, the Cleveland Plain Dealer reported that the case has been assigned to Assistant Attorney General Judith French. French, 39, has argued at the Supreme Court only once before, and her selection angered Clint Bolick of the Institute for Justice, a Washington, D.C., group that intervened in the case on behalf of pro-voucher parents in Cleveland.

Bolick, calling French a "rookie" and "unacceptable," said her appointment could jeopardize the case. He demanded that Starr argue before the Supreme Court.

Ohio Attorney General Betty Montgomery quickly returned fire, accusing Bolick of wanting the limelight for himself. Montgomery called Bolick "unprofessional" and asserted that he opposes French because she is not a graduate of an Ivy League school and "she's a girl." Retorted Montgomery, "If he wants to argue this case, then he should run and become the attorney general of the state of Ohio. It is the state's case."

Internal bickering did not slow down the final appeal. Having lost at the 6th Circuit, Ohio officials and voucher enthusiasts decided to go to the U.S. Supreme Court. Their pitch to the high court received a boost when the Bush administration, in an unusual move, weighed in with a legal brief asking the justices to take the case and approve vouchers.

Attorneys general for six states also filed a joint brief asking the court to take the case and approve vouchers Florida, Alabama, Delaware, Mississippi, Nebraska and South Carolina.

Voucher supporters believe the high court is ready to overturn existing precedent and permit government subsidies to religious education, pointing to a case from last term, Mitchell v. Helms, in which the justices ruled 6-3 in favor of a federally funded program that requires public schools to "lend" computers and other equipment to private religious schools.

The decision in Mitchell is further evidence that the Supreme Court has clearly stepped away from the separationist line it took in the late 1940s, articulated in the case Everson v. Board of Education. In Everson, a 5-4 majority upheld a New Jersey law that gave state-funded transportation subsidies to religious schools. But all nine justices affirmed the importance of church-state separation.

Observed the court, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

Despite that ringing language, later courts soon began approving various breaches. Throughout the 1980s, Presidents Ronald Reagan and George Bush attempted to stack the court with justices hostile to church-state separation. They soon began approving various forms of "indirect" aid to religious schools.

A faction on the court wants to go much farther. In the Mitchell ruling, the high court's ultra-conservative bloc made it clear that they believe parochial schools can receive government support under programs that are allegedly neutral that is, not aimed specifically at religion. The four, Clarence Thomas (who wrote the opinion), Antonin Scalia, Anthony M. Kennedy and Chief Justice William H. Rehnquist, went so far as to assert that denying religious schools this aid was a form of discrimination.

But Thomas was unable to fashion together a five-justice majority for this radical view. Justices Sandra Day O'Connor and Stephen Breyer, upheld the religious school aid but took a much narrower approach than the Thomas-led faction, expressing concerns about more direct forms of government subsidies to religion.

(The three remaining justices, David Souter, Ruth Bader Ginsburg and John Paul Stevens, argued that the federal computer and equipment "loan" program violates the First Amendment.)

With O'Connor and Breyer tagged as pivotal swing voters, both sides are likely to pitch their arguments to them. Both proponents and opponents of vouchers can point to language in O'Connor's concurrence in Helms that seems to support their view.

Voucher advocates note that O'Connor wrote that tax aid can go to religious schools if it got there as a result of being "wholly dependent on the student's private decision." Groups opposing vouchers point out a passage in the opinion in which O'Connor expresses concern about government aid that reaches "the coffers of religious schools."

"Justice O'Connor has a history of saying one thing, but ruling the other way," noted Green, now at law professor at Willamette School of Law in Salem, Oregon. "However, we have a good chance of securing her vote. She has continued to state her opposition to programs that do no more than funnel public money to religious institutions. In Helms she used the term 'true private choice,' indicating that parents would need to have a high degree of independent choice over how and where public funds are to be spent. The Cleveland program provides parents with no choices other than religious schools while it directs the funds be spent on private school tuition. That is not 'true private choice.'"

Voucher advocates hailed the court's decision to hear the Simmons-Harris case, and some did not hesitate to predict victory. "The court is going to have to decide the issue squarely," Jay Sekulow, top attorney for TV preacher Pat Robertson's American Center for Law and Justice, told the conservative Cybercast News Service Sept. 26. "I think that it's going to be a close case, [and] I think our side is going to prevail."

Religious Right organizations are eager to see the high court uphold vouchers. The day the court announced that it would hear the case, Richard Land, head of the Southern Baptist Convention's Washington, D.C., lobbying office, issued a statement calling the action "an opportunity to jettison damaging previous court doctrine and to affirm religious freedom."

Land labeled court rulings striking down vouchers a form of "pure, unadulterated anti-religious bigotry." He called on "people of faith" to "begin praying now for the nine justices of the Supreme Court that God will give them wisdom and courage and insight."

Others in the Religious Right hope vouchers will spell the end of public education. Robertson has pushed vouchers for years, and in his 1993 book The Turning Tide made it clear that he doesn't care if they harm public schools. Wrote Robertson, "They say vouchers would spell the end of public schools in America. To which we say, So what? For all we've been getting for our tax dollars out of the public schools, they should have disappeared years ago."

Leaders of the Roman Catholic Church are also hoping for a high court blessing of vouchers. Although most U.S. Catholics now send their children to public schools, the church hierarchy sees voucher plans as a lifeline that will bail out struggling Catholic schools in urban areas and relieve the church of a major financial burden. They see the wall of separation between church and state as an obstacle to that plan.

In 1993, Philadelphia Cardinal Anthony Bevilacqua told Christian Perspectives, a magazine published by the Rev. Jerry Falwell's Liberty University, that it was important to get a voucher test case before the Supreme Court to remove doubts about the plan's constitutionality.

"If we can get it [a voucher plan] through in one state, then that's the foot in the door," Bevilacqua said. "That's what I want. I want to see it passed in one state and let it go through the courts to remove that notion of separation of church and state."

What if the Supreme Court upholds vouchers? AU's Lynn says that action would shift the battle from courtrooms to state legislatures and the U.S. Congress. A high court blessing of vouchers, Lynn said, would not mean that states are obligated to enact such plans, and AU would continue to vigorously resist them wherever they are proposed.

Lynn noted that Americans United has public opinion on its side. Voters in California and Michigan trounced voucher referenda at the polls in November of 2000, turning them down by 2-1 margins, and in a recent poll conducted by Gallup for Phi Delta Kappa, Americans opposed vouchers 62 percent to 34 percent. A separate question asked respondents to choose between vouchers and reforming the public school system. Americans backed public school reform 72 percent to 24 percent.

That same poll also shows that most Americans believe that if private religious schools accept tax aid through vouchers and other vehicles, they ought to be closely regulated by the government. Eighty-two percent of respondents agreed that religious schools taking vouchers should be as accountable as public schools, while only 16 percent disagreed.

Lynn said the importance of this last point should not be overlooked. "Voucher proponents may believe that a Supreme Court ruling in their favor is the end of the debate," he said, "but they are wrong. It will be the beginning. Once these subsidies are extended, the nation will move on to questions of regulation and accountability."

Continued Lynn, "The government regulates what it funds. Vouchers will inevitably open the door to extensive regulation of private religious schools. In time, I firmly believe many operators of private schools will come to rue the day they ever heard the word 'voucher.'"

Lynn also noted that if the high court strikes down vouchers, proponents of the concept, which include the Roman Catholic hierarchy, some Christian fundamentalist leaders, libertarian activists and others, are unlikely to give up. They will instead craft new proposals to try to get around a court ban.

Concluded Lynn, "I promise Americans United members this: Win or lose at the Supreme Court, we're in this battle for the long haul and will continue to vigorously oppose any and all proposals that threaten the separation of church and state."