Cleveland program could lead to definitive Supreme Court precedent on school vouchers

The idea of school vouchers has been controversial since its conception in the mid-twentieth century by economist Milton Friedman.1 Friedman proposed vouchers as a way of applying the market economy theory to the public school system. It was thought that giving parents the power to choose where their

children would attend school would make schools more competitive and force them to improve or risk losing their respective student populations. School vouchers, and the issues they bring to the table, have been met with criticism and praise over the past decades and have been a topic of heated debate in many political arguments. For example, the issue of school vouchers was one that differentiated the Republican and Democratic platforms in the 2000 Presidential election, with former Texas Governor (now President) George W. Bush favoring school vouchers, and former Vice President Al Gore opposing them.

One of the main controversies surrounding school vouchers is whether they should be used to pay for student tuition at religious and sectarian schools, if the parents so choose. Parties opposed to such programs claim that this would be a blatant violation of the Establishment Clause of the United States Constitution. Voucher programs that have allowed parents to use government-- distributed funds to pay for their child to attend a religious school have been upheld by the Wisconsin Supreme Court, which ruled that the voucher program did not violate the Establishment Clause.2 This case was appealed to the U.S. Supreme Court but they decided not to hear the case.3 In October 2000, the First District Court of Appeal of Florida ruled that a program allowing school vouchers to be used to pay for the tuition at religious schools did not violate the Florida Constitution. The Court did not, however, rule whether or not the program was in violation of the Establishment Clause.4

This chalk talk will focus on the December 2000 decision of the Sixth Circuit Court of Appeals that declared a controversial school voucher program operating in the Cleveland, Ohio school system unconstitutional as a violation of the Establishment Clause.5 Some commentators believe that this case will be heard by the U.S. Supreme Court, and that the Court will delineate guidelines for the future use of school vouchers. Section I of this chalk talk describes the Cleveland school voucher program and the analysis the Sixth Circuit used in its decision to deem this program unconstitutional. Section II analyzes the dissenting opinion. Section III discusses why this program was correctly deemed to be unconstitutional. Finally, Section IV provides a conclusion and briefly discusses the possible future of school vouchers under the newly-elected administration of George W. Bush.

I. The Cleveland Program and Why It was Deemed Unconstitutional

In 1995, the Ohio General Assembly passed the Ohio Pilot Project Scholarship Program (hereafter "the voucher program" or "the program"). This program was enacted in response to an order by the U.S. District Court that placed the Cleveland School District under the control of the State Superintendent of Public Instruction after it was deemed to be mismanaged by the local school board. The program covered any school district turned over to the State Superintendent.6 The program gave scholarships to children living in such districts that were under state control after local mismanagement. Payments were made to the families based on their income. The program gave preference to lower-income families which were deemed to be those who with an income less than 200% of the poverty line.' "The program requires participating private schools to cap tuition at $2,500 per student per year and pays 90% of whatever tuition the school actually charges for low income families; for other families, the State pays 75% of the school's tuition, up to a maximum of $1,875."6 Each payment consisted of a check made out to the parents but sent to the private school. The parents were then required to go and endorse the check over to the respective school.

In order to participate in the voucher program, schools had to register with the program and meet its eligibility requirements, which included nondiscriminatory placement and a prohibition on teaching hatred of or biases against any religious, racial or an ethnic group.' Public schools in adjacent districts to the district involved in the voucher program could also be included for purposes of the scholarships. In those cases, the check was made out to the respective school district rather than to the parents.

The Sixth Circuit in its holding relied on statistics from the 1999-2000 academic year. For that period, 3,761 students were enrolled in the program and 60 percent of these children were from families at or below the poverty level. 3,632 of these students were enrolled in sectarian schools. During that school year, 82 percent of the schools that were registered as part of the program were religious schools. The court pointed out that monies given by the program to such schools could be used for whatever purpose the school chose, with no restrictions.10

In its opinion, the Sixth Circuit initially acknowledged that the U.S. Supreme Court has been flexible in reviewing cases under the Establishment Clause that involve public education. Since 1971, the Court has applied the famous threepronged Lemon test in Establishment Clause cases. According to this test, the Establishment Clause is violated by legislative government support of religiously affiliated activities if (1) the statute has no secular purpose, (2) the principal purpose or effect of the statute advances or inhibits religion, or (3) the statute fosters an excessive entanglement of the government with religion.11

The Sixth Circuit instead relied on the post-Lemon case of Committee for Public Education and Religious Liberty v. Nyquist in its ruling that the Cleveland school voucher program was in violation of the Establishment Clause.12 Nyquist involved a New York state law that, in part, provided tuition reimbursement grants to low-income parents whose children attended private schools. The Court in Nyquist deemed the tuition grants to be unconstitutional as there was no guarantee that the state aid would be used for secular and nonideological purposes.13 The grants in Nyquist were distinguished from the aid provided in Everson v. Board of Education14 and Board of Education v. Allen,15 where school transportation and secular textbooks were provided to parochial schools, as these were neutral toward religion and were provided to all children, whereas the grants in Nyquist were given to parents of children in private schools who already had the right to have their children attend public schools.16

Like the tuition grants in Nyquist, there was no guarantee that the state funds in the Cleveland program would flow to sectarian institutions for secular educational purposes only. This was a major issue for the court since the majority of the schools participating in the Cleveland program were sectarian schools.

The Sixth Circuit also claimed that the program was unconstitutional on the grounds that it lacked a sense of neutrality. Parents were limited as to where they could use their vouchers as only certain schools participated in the program. The court claimed that there was also an inherent bias in the program in the tuition cap that is required of any school that wishes to participate. The tuition cap disadvantages private, nonreligious schools which usually have less extra income from donations and higher additional costs than religious schools.17 The majority found clear evidence to support this theory in the fact that 82 percent of the participating schools were sectarian. While there were no public schools in adjacent districts that attempted to participate in this program, the court believed there was little chance of this in the future either as there appeared to be financial disadvantage to doing so.18

Based on this reasoning, the Sixth Circuit deemed the program unconstitutional, in violation of the Establishment Clause. The main reasoning behind this decision was that (1) the program did not adequately guarantee that the state funds would be used for a nonreligious purpose and (2) the rights of the parents to make distinctly independent choices of where to send their children to school were limited by the fact that the program only considered certain schools with, as the court viewed it, a bias towards more financially successful religious schools.

II. The Dissenting Opinion in Simmons-Harris v. Zelman

Circuit Judge Ryan, who wrote a dissenting opinion in this case, strongly disagreed with the reasoning used by the majority to reach their decision. Firstly, he argued that the factual scenarios in the tuition grants involved in Nyquist and the Ohio program were very different, and that it was inappropriate for the majority to rely on the Nyquist case.19

Ryan also argued that the majority opinion ignored more recent Supreme Court precedent regarding the relationship between the Establishment Clause and government funding that ultimately went toward religious-based educational institutions. Ryan relied on Agostini v. Felton, in which the Court applied the Lemon test more flexibly.20 The Agostini case involved a New York program that sent public school teachers into parochial schools to provide secular education to eligible, disadvantaged children. In Agostini, the Court took the Lemon test and reshaped it into a two-pronged test that stated that the Establishment Clause is not violated if (1) the statute in question has a secular purpose and (2) it does not have the effect of government advancing or inhibiting religion. This second prong was then said to be comprised of three parts and the Court should look at a statute to determine "(1) whether the aid results in governmental indoctrination; (2) whether the aid program defines its recipients by reference to religion; and (3)whether the aid creates an excessive entanglement between government and religion."21 A major new development in the Agostini case was that direct funds that ultimately went to religious schools based on the private, independent choice of the parent did not equate with governmental advancement of religion.22 The Court held that this program did not violate the Establishment Clause as the children that received the benefits did so without regard as to whether they attended a public or private school. Furthermore, if the funds ultimately went to a religious school, it was only because of the private, individual choices of the parents.

Relying on the precedent set by Agostini, Ryan maintained that the Ohio program was neutral as to public, private, and religious schools and since the parents had an independent, private choice as to where to send their children to school in the voucher program, there was no resulting government indoctrination. Judge Ryan also examined whether the program defined its recipients by reference to religion. He found that it did not, noting that the program specifically stated that participating schools could not base admission on such factors as race and religion. In Agostini, the Court held that if the program provided financial incentives for parents to pick religious alternatives as opposed to nonreligious alternatives, it could be said to define recipients by reference to religion. This was not the case if the criteria for allocating aid was based on neutral elements that neither favor nor disfavor religion.23 Ryan firmly stated the Ohio program met this test since the aid could be used to attend either private schools, religious or not, or public schools in adjacent districts. He also noted that the number of religious schools actually participating in the program was inconsequential.24

III. Why This Program Appears Unconstitutional

While both the majority and the dissent raise valid points, it is this author's opinion that the Ohio voucher problem violates the Establishment Clause. While this program does appear to take a facially neutral stance, it appears to contain an inherent bias against some schools that might not participate due to the tuition cap. This requirement would obviously deter schools from participating in the program, when they could easily receive higher tuition payments from wealthier parents. It seems naive to think that private schools, who more than likely will have long waiting lists of prospective students to begin with, would lower the usual tuition prices to accommodate extra students, merely for philanthropic reasons. As long as there is a tuition cap in place for the program, there cannot be a clear view that this program was not only facially, but inherently neutral.

In Agostini, which provided that direct aid flowing to a religious school would not be held to violate the Establishment Clause if it was the result of a private, individual choice, the governmental program must include a "genuine choice from among a range of alternatives that indicate complete neutrality on the part of the government as to where the recipient parents may choose to spend the government-aid funds."25 It is this author's opinion that the sense of complete neutrality on the part of the government is not present in the Ohio program because of the tuition cap and the program eligibility requirements. These are two ways in which the government detracted from the neutrality of the statute. The fact of whether the schools chose to participate seems irrelevant as the policy seems to be biased at the outset. Hence, relying on case precedent, if the policy is not completely neutral from the start, choices made by the parents cannot be deemed to be wholly independent and private and thus funds that go to religious institutions via these decisions cannot withstand Establishment Clause violation claims.26 Unless there can be more clear and convincing evidence that this program is completely neutral in regard to the criteria for schools to participate, it seems to be incompatible with the Establishment Clause.

IV. Conclusion

While some school voucher programs have withstood recent litigation in the states of Wisconsin" and Florida,28 they have also been voted down in recent ballot initiatives in the states of California and Michigan.29 While school vouchers were an integral part of the Bush platform in the 2000 Election,30 it appears that President Bush is looking to defer this part of his new education plan in order to get it passed more quickly by the Democrats in Congress, who are largely opposed to the idea of school vouchers.31

The future of the Cleveland program still remains uncertain. On February 28, 2001, the Sixth Circuit denied a suggestion to have the case reheard by the entire court, as it was originally only heard by a 3-judge panel. It is likely that the defendants in this case will also appeal to the United States Supreme Court. While this author believes that this program as it is currently written is in violation of the Establishment Clause based on prior Establishment Clause jurisprudence, it is uncertain how this case would be resolved in a subsequent appeal. However, one thing is certain: school vouchers will continue to be a controversial topic for years to come.

ANDREW WEISENBERGER

FOOTNOTE

1. MILTON FRIEDMAN, ECONOMICS AND THE PUBLIC INTEREST 123 (Robert A. Solow ed., 1955), cited in Jarod Bona, School Vouchers, 37 HARV. J. ON LEGIS. 607, 608 (2000).

2. Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998). 3. Jackson v. Benson, 525 U.S. 997 (1998).

4. Bush v. Holmes, 767 So.2d 668 (Fla. Dist. Ct. App. 2000). 5. Simmons-Harris v. Zelman, 234 F.3d 945(6th Cir. 2000).

FOOTNOTE

6. See id., referring to Ohio Rev. Code 3313.975(A). 7. See id., referring to Ohio Rev. Code 3313.978(A).

8. Id., referring to Ohio Rev. Code 3313.976(A)(8), 3313.978(A). 9. See id., referring to Ohio Rev. Code 3313.976(A)(1),(3),(6).

FOOTNOTE

10. See Simmons-Harris, 243 EM at 945. Prior to this case being decided in federal court, one of the plaintiffs brought a suit in Ohio state court and, on appeal, the Ohio Supreme Court ruled that the 1995 voucher legislation violated the Ohio Constitution but not the U.S. Constitution. The Ohio Legislature quickly modifed and re-enacted the law. The new legislation is virtually the same as the 1995 legislation. The lawsuit here was initiated under the newly-drafted program. See Simmons-Harris v. Goff, 711 N.E.2d (Ohio 1999).

FOOTNOTE

11. Lemon v. Kurtzman, 403 U.S. 602 (1971).

12. Committee for Public Educ. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973). 13. See id. at 780-783.

14. Everson v. Board of Educ., 330 U.S. 1 (1947). 15. Roard of Educ. v. Allen. 392 iJ.S. 236 (1968).

FOOTNOTE

16. See Nyquist, 413 U.S. 756,782, n.38 (1973).

17. See Simmm-Harriis v. Zelman, 234 F.3d 945, citing Martha Minow, Reforming School Reform, 68 FORHAM L. REV. 257, 262 (1999)

18. see id.

FOOTNOTE

19. See Simmons-Harris v. Zelman, 234 F.3d 945 (61 Cir. 2000) (Ryan, J., dissenting).

20. Agostini v. Felton, 521 U.S. 203 (1997).

21. Id. at 234.

22. See id., discussing Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Department of Services for Blind, 474 U.S. 481 (1986), Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

FOOTNOTE

23. See id. at 231.

24. See Simmons-Harris, 234 F.3d 945, relying on Mitchell v. Helms, 530 U.S. 793 (2000); Agostini, 521 U.S. 203, 229 (1997).

25. Simmons-Harris v. Zelman, 234 RM 945 (6th Cir.)(Ryan, J. dissenting).

FOOTNOTE

26. See Agostini v. Felton, 521 U.S. 203 (1997).

27. See Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).

28. See Bush v. Holmes, 767 So.2d 668 (Fla. Dist. Ct. App. 2000).

29. See Jodi Wilgoren, Ruling Avoids Use of Vouchers in Ohio Schools, N.Y. TIMES, Dec. 12, 2000.

30. See Jean-Paul Jassy and Jeffrey H. Blum, The First Amendment: Gore Versus Bush,18 COMMUNICATION LAWYER 1 (2000).

31. See Dan Balz, Bush Protects His Right Plank; President Winning Favor Courting Conservatives, WASH. POST, Feb. 12, 2001.