As controversy swirled around New York City Mayor Rudolph W.
Giuliani's proposed new school voucher plan, the city's Board
of Education--in whose hands the fate of the proposal rests--
received a legal memo from Agudas Yisroel of America
rebutting the assertion that the program would violate
constitutional prohibitions against the funding of religious
schools.
Mayor Giuliani used his "State of the City" address this past
January to announce his plan to establish a pilot project of
educational vouchers in one of the city's 32 local school
districts.
Although he has not as yet revealed details of his plan, the
Mayor has indicated that the experimental project would be
modeled on a program in Milwaukee, Wisconsin. That plan uses
tax dollars to provide needy parents with educational
vouchers to enroll their children in any school of their
choice--including religious schools.
When the Milwaukee plan was initially established, opponents
mounted a legal challenge and persuaded a lower Wisconsin
court that allowing religious schools to participate in the
voucher program was unconstitutional.
However, this past summer, the Wisconsin Supreme Court
overturned the lower court decision and reinstated the
voucher program, emphasizing the law's secular purpose as
well as its religious neutrality. The U.S. Supreme Court
declined to review the decision, thereby ensuring that the
Milwaukee program will stand.
Now, as Mayor Giuliani seeks to create a similar pilot
project in New York City, opponents contend that the proposal
would violate the strictly worded "church-state" section of
the New York State constitution--which, unlike its
counterpart in Wisconsin, prohibits even the "indirect"
funding of religious schools.
This prohibition is being cited by many as an insurmountable
barrier to the Mayor's voucher proposal.
Not so, says Agudas Yisroel in its legal memo to the
Board.
As explained by the memo's author--Agudas Yisroel's Vice
President for Government and Public Affairs, Chaim Dovid
Zwiebel--the argument that the New York State constitution
would preclude an educational voucher program is based on an
outdated and faulty premise.
"It is true," asserts the Orthodox group's attorney, "that in
1938, New York's highest court, the Court of Appeals
interpreted the state constitutional prohibition against
`indirect' funding extremely broadly, to prohibit even the
most attenuated forms of public assistance to religious
schools.
"However, the 1938 ruling was explicitly repudiated and
superseded in 1967, when the Court of Appeals held that
indirect funding of religious schools is prohibited only if
the specific purpose of the funding is to benefit those
schools.
"Since the intended purpose of Mayor Giuliani's voucher
proposal is not to assist religious schools but to expand the
range of educational options available to needy parents, the
state constitution would not bar the initiative."
According to news reports, three of the seven members of the
Board of Education support the voucher proposal; three
oppose; and one--Queens representative Terri Thomson--is
undecided.
The chief Executive of the Board, Chancellor Rudy Crew, has
announced his strong opposition to the proposal, threatening
at first to resign over the issue but then withdrawing his
threat when Mayor Giuliani agreed to hold back on his call
for immediate Board approval of the plan.
If the Board of Education ultimately adopts the Mayor's
proposal, opponents have announced that they would seek a
court injunction to prevent the voucher plan from going
forward.
Should that happen, says Mr. Zwiebel, "we have every
intention of getting involved in the court battle."
