"On the surface, this may appear to be a loss. But in fact it
is a great victory," stated Chaim Dovid Zwiebel, executive
vice president for Government and Public Affairs for Agudas
Yisroel of America, in reaction to the Supreme Court of
Ohio's ruling to strike down the state's pilot school voucher
program for needy students in Cleveland.
The court determined that the program, which was enacted as
part of a larger legislative package, violated the Ohio state
constitution's requirement that all legislative enactments
must deal with one subject only. At the same time, however,
the court stated that the program did not violate the "church-
state" provisions of the federal or state constitutions -- a
pronouncement that has broad implications for future voucher
legislation in Ohio and across the country.
In making its church-state determination, the Ohio Supreme
Court rejected the earlier conclusion of the Ohio Court of
Appeals that the program amounted to an unconstitutional
"establishment of religion."
Instead, the court adopted the analysis urged in the
amicus curiae brief submitted by a number of Orthodox
Jewish groups, including Agudas Yisroel, that the benefit to
religion resulted from the voucher program was sufficiently
indirect as to avoid the constitutional problem.
"It's back to the drawing board in Ohio in terms of getting
new voucher legislation passed," said Mr. Zwiebel. "That is
unfortunate. But the larger picture is brighter than ever,
with more and more courts rejecting the notion that the
constitution prohibits giving parents greater educational
options."
The Ohio Supreme Court's analysis of the church-state issues
dovetails with that of the Wisconsin Supreme Court last year,
which upheld the constitutionality of that state's voucher
program.
Abba Cohen, director and counsel for Agudas Yisroel's
Washington Office, called upon Congress and legislative
bodies across the country to advance voucher legislation in
light of the new legal developments. "Two State Supreme
Courts," he said, "Wisconsin and Ohio, have now clearly
indicated that properly designed school voucher programs fall
fully within constitutional parameters. Legislators and
policy-makers around the country will surely take note of
these decisions, and of the recent studies showing the
educational efficacy of expanding parental choice."
In a related matter, significant in its own right and with
potential far-reaching implications in other contexts as
well, the United States Supreme Court has been formally asked
to weigh conflicting appellate court decisions regarding the
ability of children attending religious schools to receive
certain federal educational benefits.
The petition was made by a group of parochial school students
in Louisiana, in the wake of a ruling by the Fifth Circuit
Court of Appeals that the provision of certain benefits to
religious schools under "Title VI" of the federal Elementary
and Secondary Education Act is unconstitutional.
Specifically, the court held that religious schools could not
use the Title VI program (formerly known as "Chapter 2") to
obtain books for their school libraries, computers for their
classrooms, or any other "educational or instructional
equipment."
The Fifth Circuit's ruling is in direct conflict with a 1995
ruling by another federal court, which upheld the
constitutionality of these benefits to religious schools,
premised on the fact that the benefits of the federal program
are secular in nature and open to both religious and non-
religious schools, and that adequate safeguards ensure that
they would not be diverted to sectarian purposes.
The Supreme Court turns down most petitions asking it to
review lower court decisions.
However, according to attorneys for Agudas Yisroel, who have
been working with the parties to the Louisiana case, the
contradictory rulings make it far more likely that the High
Court will accept the petition.
Another reason the Supreme Court may well enter the arena is
the Clinton Administration's forceful position on the issue.
U.S. Secretary of Education Richard Riley directed the
Department of Education to support the Louisiana parents by
filing a brief backing their constitutional arguments and
joining their request that the High Court address the
issue.
"We are particularly grateful," said Abba Cohen, director and
counsel for Aguda Yisroel's Washington Office, "that
Secretary of Education Riley has seen fit to endorse the
constitutionality of the Title VI program and to put the
administration's weight behind the nonpublic school parents'
request."
Mr. Cohen, along with the organization's executive vice
president for government and public affairs David Zwiebel,
had been invited to a high level meeting about the case with
leading White House, Department of Education and Department
of Justice officials. The Agudas Yisroel attorneys impressed
upon the government representatives the importance of the
issue to the nonpublic school community. "It has been
estimated that over a million American schoolchildren
attending religious schools currently benefit from Title VI,"
notes Mr. Cohen.
"Certainly among the Jewish schools, this has been one of the
most useful and popular of all the government assistance
programs."
