[1]WASHINGTON (BP)–Courts recently rejected the inclusion of religious schools in voucher-type programs in both Maine and Ohio, but the victory in the Ohio Supreme Court for education-choice foes may prove to be a hollow one.
The United States First Circuit Court of Appeals in Boston, Mass., ruled Maine could not pay for students who live in rural areas without public schools to attend religious schools outside their district even though it will pay for those students to attend public or non-religious private schools.
That June 1 opinion was released only five days after Ohio’s high court declared the state’s Cleveland-based voucher program unconstitutional. The court said, however, the legislation enacting the program did not violate church-state separation but the state’s rule against more than one subject in a law.
The Ohio decision gave voucher advocates hope of enacting education choice as a separate bill before the next school year begins.
In addition, the rulings provided more court history for a question that appears destined to be confronted soon by the U.S. Supreme Court. State supreme courts in Arizona and Wisconsin have both upheld school-choice programs. The fate of a Vermont voucher plan similar to the one rejected in Maine is awaiting a decision by the state supreme court. Florida adopted a voucher program this spring.
“We remain optimistic,” said Dick Komer, senior litigation attorney with the Institute for Justice, which has defended the Arizona, Ohio and Wisconsin programs and will also defend the Florida legislation in court. “There’s an unbroken string of cases” where the Supreme Court has issued decisions “sympathetic to school choice,” Komer said.
While public support for education choice has grown in recent years, it remains a controversial issue in America and, to at least some extent, in the Southern Baptist Convention.
The SBC’s Ethics & Religious Liberty Commission signed onto a friend-of-the-court brief before the Wisconsin Supreme Court supporting the inclusion of religious schools in Milwaukee’s voucher program when other private schools are participants. The brief, written by the Christian Legal Society, argued exclusion of religious schools, when other private ones are included, constitutes government discrimination against religion, while inclusion of religious schools would not violate church-state separation.
The Baptist Joint Committee for Public Affairs, which was the SBC’s church-state representative in Washington prior to the 1990s, maintains its longstanding opposition to vouchers for religious schools as a violation of the First Amendment’s ban on establishment of religion.
The rulings in Maine and Ohio dealt with different situations. Before 1981, Maine allowed tuition for students in rural areas without public schools to be paid to whatever schools they chose to attend elsewhere — public, nonreligious private or religious private. The check was made out to the school.
In the majority opinion, the court said “the state cannot be in the business of directly supporting religious schools.” Strict separationists hailed the decision. Barry Lynn, executive director of Americans United for Separation of Church and State, called the school-choice issue a “whole new ball game now.”
“This is the highest court ever to hear a voucher case, and the justices found vouchers unconstitutional,” Lynn said in a written release. “It is a monumental ruling in the battle over taxpayer support of religious schools.”
The Institute for Justice’s Komer, however, said he thinks plans like those in Maine and Vermont are easier to defend under the U.S. Constitution than those in Wisconsin and Ohio. There “is absolutely no argument to be made … that the program creates any kind of incentive for the family to choose a religious school,” since everyone is leaving the district and each student’s tuition is being paid, Komer said. “All we’re asking is religious schools be put on equal footing.”
The Ohio law provided for a program in Cleveland that allowed about 3,000 students from low-income families to receive vouchers of $2,250 to be used at the school chosen by their parents.
The voucher program did not violate the U.S. Supreme Court’s three-part Lemon test, the Ohio high court decided.
“We conclude that the school voucher program has a secular legislative purpose, does not have the primary effect of advancing religion, and does not excessively entangle government with religion,” the opinion said, according to The Cleveland Plain Dealer. “Whatever link between government and religion is created by the school voucher program is indirect, depending only on the ‘genuinely independent and private choices’ of individual parents, who act for themselves and their children, not for the government.” The program, however, was invalid under Ohio law because it was approved as part of a budget bill, the court ruled.
“This ruling decisively demonstrates that parental choice is constitutional,” said Clinton Bolick, litigation director at the Institute for Justice, in a written statement. “Once again, the kids won, and the special-interest groups lost.”
While he was glad the court struck down the law, AU’s Lynn criticized the opinion. “Anyone concerned with church-state separation should be disappointed and alarmed. The U.S. Supreme Court will eventually have to clarify the law on this important matter.”
In November, the U.S. high court allowed the Wisconsin voucher law to stand by refusing to review the state supreme court’s decision.