Proponents of school vouchers claim victory in Ohio court ruling

WASHINGTON, June 2 (JTA) — School voucher proponents are claiming victory in an Ohio Supreme Court ruling that upholds the controversial practice of giving low-income students taxpayer-funded scholarships to use at parochial schools. Although the court last Friday struck down a Cleveland voucher program because of a technicality, it ruled that the program does not violate the separation of church and state, clearing the way for the state to try again. The decision came even as a federal appeals court ruled that a voucher program in Maine was unconstitutional. But supporters of vouchers in the Jewish community nonetheless pointed to what they said was a major breakthrough in Ohio. The ruling “continues to build momentum for school choice initiatives,” said Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, adding that it “is only going to encourage people because they see” that voucher programs are constitutional if they are structured properly.” In contrast, Marc Stern, co-director of the American Jewish Congress’s legal department, said the ruling comes as a disappointment. “It may mean for the moment they can’t have a voucher plan in Ohio, but substantively it’s a defeat,” he said. The debate over school vouchers has sharply divided the Jewish community. Most Jewish organizations oppose vouchers, saying they violate the separation of church and state while undermining public education. But others, mostly Orthodox and politically conservative Jews, favor the idea, arguing that vouchers are needed to provide better access to a quality Jewish education. The Cleveland program, one of several pilot voucher programs around the country, provides tuition vouchers for some 4,000 low-income students to attend the private schools of their choice, including religious schools. Milwaukee has the largest such program, with as many as 15,000 students receiving aid. The Wisconsin Supreme Court last year upheld the program, saying it “has a secular purpose” and “will not have the primary effect of advancing religion.” Florida, meanwhile, approved the nation’s first statewide voucher program last month, raising hopes among voucher advocates for the expansion of vouchers around the country. But while voucher proponents have reveled in recent victories, the invalidation of Maine’s voucher program has clouded the legal picture. The program, struck down on May 27 by the First U.S. Circuit Court of Appeals, provided reimbursements to students attending private or parochial schools outside of their school districts because their towns do not have public high schools. The ruling marks the highest-level court decision to date on vouchers. “Writ simple, the state cannot be in the business of directly supporting religious schools,” Chief Judge Juan Torruella wrote in the court’s opinion, adding: “Creating such a breach in the wall separating the state from secular establishments is a task best left for the Supreme Court to undertake.” The Supreme Court, however, decided not to enter into the voucher fray last year when it left intact the Wisconsin Supreme Court’s decision upholding vouchers. Some legal analysts have speculated that the justices may have decided to duck the issue in order to wait for a greater body of lower court decisions to build up before weighing in. Litigation over voucher programs is also pending in Arizona, New Jersey, Pennsylvania and Vermont. Despite the Maine ruling, David Zwiebel, executive vice president for government and public affairs for Agudath Israel of America, an Orthodox group, said he hopes the decisions by two state supreme courts upholding vouchers can begin to turn the voucher debate away from constitutional concerns. “The more we have courts clarifying that this is not unconstitutional, the more we’ll be able to hone in on the public policy issues, which is really the debate that should be taking place,” he said. The technicality on which the Ohio Supreme Court struck down the voucher program was based on the Ohio Constitution’s “single-subject rule,” which requires that each piece of legislation only address one issue. The 1995 legislation that created the voucher program was included in the state’s general spending bill for that year. Because of the contentiousness surrounding the issue, the court ruled, vouchers needed to be the subject of a stand-alone bill. At the same time, the court concluded that the program did not breach the separation of church and state because it “has a secular legislative purpose, does not have the primary effect of advancing religion, and does not excessively entangle government with religion.” Ohio Gov. Bob Taft said he would support reinstating the program, which would involve lawmakers drafting new legislation to abide by the court’s ruling. Voucher opponents, led by the Ohio Education Association and the Ohio Federation of Teachers, have vowed to fight any attempt to revive the program in the legislature.