In a decision that has a big impact on the efforts of the
American Jewish community to pass legislation allowing
parents the use of vouchers to decide how to educate their
children, a federal appeals court declared a Cleveland
school voucher program unconstitutional on Monday. Their
decision confirms a lower court ruling that using public
funds to pay for thousands of children to attend parochial
schools breaches the First Amendment's requirement of
separation between church and state.
In the United States, there is universal free education run
and paid for by local governments. Many parents are not
satisfied with the public education. Some of these educate
their children at home, some send their children to private,
nonsectarian schools, and some send their children to
Considered as a single group, the religious schools
constitute the largest segment of private education. Of
these, the largest segment is Catholic schools. Jewish
religious schools are also a significant segment. In
addition there are numerous other private religious schools.
The religious Jewish community has been intensely interested
in the issue, but it is by no means the only community
The 2-to-1 court decision will send the case to the United
States Supreme Court for a final decision on one of the most
contentious issues in education politics today. A month ago
voters in Michigan and California roundly rejected school
voucher programs in ballot initiatives.
"We certainly hope everyone will get the message," said
Robert H. Chanin, general counsel for the National Education
Association, the nation's largest teacher's union, who
argued the case for a group of parents and teachers
challenging the vouchers. "The message is, let's focus on
improving the public schools and stop playing around with
vouchers as a panacea."
Judge Eric L. Clay of the United States Court of Appeals for
the Sixth Circuit said the Cleveland program did not present
parents participating in the program with a real set of
options, because few non-religious private schools and no
suburban public schools had opened their doors to those
receiving the vouchers. In the last school year, 96 percent
of the 3,761 voucher students attended sectarian schools,
receiving up to $2,500 each to offset tuition.
"This scheme involves the grant of state aid directly and
predominantly to the coffers of private, religious schools,
and it is unquestioned that these institutions incorporate
religious concepts, motives and themes into all facets of
their educational planning," wrote Judge Clay.
"There is no neutral aid when that aid principally flows to
religious institutions," the decision said, "nor is there
truly `private choice' when the available choices resulting
from the program are predominantly religious."
Voucher supporters said they would appeal the ruling. The
high court has hinted recently at an openness to vouchers
with several decisions allowing public money to be used in
parochial schools for such non-religious purposes as
textbooks, transportation and teachers' aides.
"The day of reckoning is drawing closer," said Clint Bolick,
a lawyer for the Washington-based Institute for Justice,
which helped defend the voucher program. "This decision is a
disaster for every school child in America, but it will be
Students in the Cleveland program will probably be allowed
to finish the year at their current schools, lawyers for
both sides said. The Supreme Court has already intervened
once in the case to allow voucher recipients to remain in
parochial schools pending the appeal.
Cleveland's voucher program, which gives precedence to low-
income families, has been in litigation since it began in
1995 and has long been seen by both sides as the likely test
case bound for the Supreme Court.
The controversy over vouchers takes place on several fronts.
A coalition of corporate philanthropists and impoverished
parents back vouchers as a free-market solution to what they
call the failure of inner-city schools. Teachers' unions
oppose vouchers since they, and many educators, believe they
would drain resources from the schools.
Religious Jews are very interested in obtaining vouchers to
help them pay for the private education that they use. They
have long argued that the state may pay for the general
education that it requires every child to receive without
violating the constitutionally mandated separation between
church and state.
In the wake of yesterday's federal appeals court decision
declaring Cleveland's limited school voucher program unconstitutional, Chaim
Dovid Zwiebel, Agudath Israel of America's executive vice-president for
government and public affairs, had the following comment:
"It is nothing short of appalling to read some of the grotesque reactions to
this 2-1 ruling emanating from some of the ideological opponents of school
"To say, for example, as the executive director of Americans United for
Separation of Church and State did, that the court's ruling is "an early
[holiday] present for America's public schools" is to mock the thousands of
poor families in Cleveland who have used the voucher program to escape a
failing public school system that holds out little hope for helping their
children break the cycle of poverty and dependency in which they feel
"To say, as the executive director of the American Jewish Congress did, that
the 2-1 ruling is "a decisive rebuttal to those who believe that vouchers
are compatible with religious liberty" is to ignore the strength of the
dissenting judge's position, and the fact that other courts around the
country that have considered the issue have upheld the constitutionality of
"It is also to ignore the plain language of the two-judge majority opinion
itself, which makes clear that the constitutional flaw the judges discerned
in this case mandates specifically to the design of the Ohio program, not to
voucher programs generally. Far from being "a signal to localities
considering implementing vouchers that to do so would only bring about
litigation that they would lose," the decision is a signal that a properly
tailored voucher plan that offered parents a full range of options would
easily pass constitutional muster.
"Those who are committed to do all in their power to preserve the public
school monopoly and to prevent parents from having meaningful educational
options will surely have reason to be pleased with the outcome of this
case - though we suspect that the Supreme Court will render that pleasure
short-lived. We ask only that they temper public expression of their
pleasure with a modicum of sympathy for the parents and children who are
devastated by the ruling, and with a modicum of humility regarding just how
conclusive and far-reaching the ruling may be."