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Cleveland case could be definitive high court word on vouchers

WASHINGTON (CNN) -- The U.S. Supreme Court has never had to rule on the constitutionality of programs to send children from failing public schools to private schools with government funds -- but a Cleveland case could be the voucher test the justices can't avoid.

Last year, Cleveland provided up to $2,250 in tuition aid for more than 3,700 students. More than 90 percent of that went to religious schools, presumably because they're cheaper.

Bolick
Clint Bolick  

"The Ohio Supreme Court upheld the Cleveland program on First Amendment grounds," said Clint Bolick, of the conservative Institute for Justice. "The Sixth Circuit struck it down on First Amendment grounds. There's only one court in the land that can resolve that conflict and that's the U.S. Supreme Court.

The Sixth U.S. Circuit Court of Appeals found the Ohio program "is designed in a manner calculated to attract religious institutions." Critics contend aid funneled to religious schools violates the constitutional separation of church and state.

"Yes, most of these kids are attending religious schools," Bolick said. "But the reality is if they were not attending religious schools they would not be getting a basic education at all in the Cleveland public schools."

Nevertheless, the flow of government funds to religious schools could be a legal stumbling block to voucher programs.

"If the program is gerrymandered in a way that it pushes people to use it at religious schools, then it would be subject to constitutional attack," said Walter Dellinger, a former Democratic solicitor general.

Dellinger
Walter Dellinger  

Tuesday, President Bush avoided the word "vouchers" when he submitted his education bill to Congress. But during the campaign, he argued that schools whose students do not show acceptable rates of improvement after three years could have much of their federal money distributed to parents in the form of payments to be used to transfer students to private schools or more successful local schools.

Some voucher programs have survived First Amendment challenges. A program in Milwaukee, Wisconsin, program has been in effect since 1990 and now serves 8,000 students. The U.S. Supreme Court declined to hear a challenge to the Milwaukee program.

Voucher supporters find optimistic clues in last year's Supreme Court ruling in a Louisiana case allowing federal funds to provide computers and other technology to parochial schools. Justice Clarence Thomas said the court based its ruling on "the principle of neutrality, upholding aid that is offered to a broad range of groups...without regard to their religion."

Such aid is also more likely to be constitutional when it goes to parents who can choose their children's schools, not when the aid goes directly to those schools.


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Tuesday, January 23, 2001


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