Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

16 Kislev 5761 - December 13, 2000 | Mordecai Plaut, director Published Weekly








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U.S. Court Stops Use of Educational Vouchers in Ohio; Agudath Israel Responds
by Yated Ne'eman Staff

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 religious schools.

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 involved.

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 short-lived."

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 vouchers.

"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 trapped.

"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 voucher programs.

"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."


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