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ERLC endorses brief defending voucher program to high court

WASHINGTON (BP)–The Southern Baptist Ethics & Religious Liberty Commission has signed on to a brief for the U.S. Supreme Court defending an education-choice program that permits vouchers to be used at religious schools.

The friend-of-the-court brief says the Cleveland, Ohio, program is neutral and therefore does not violate the First Amendment’s ban on government establishment of religion. Because the recipients, rather than the government, choose where to redeem the vouchers, the program is constitutional, even though a large majority of parents have directed the benefits to be used at religious schools, the brief argues.

The Supreme Court’s announcement in late September it would rule on the Cleveland voucher program set the stage for a decision that could have a dramatic, long-term impact on public education in this country. A favorable ruling for the Cleveland plan is likely to clear the way for the spread of voucher programs in other faltering school districts.

Oral arguments in the case, Zelman v. Simmons-Harris, have not been scheduled but will be held in February at the earliest. A ruling is expected before the court concludes its term next summer.

The Cleveland Scholarship and Tutoring Program, which was established by the Ohio legislature, allows a family to use a voucher of $2,250 in state funds for tuition cost at the private or public school of its choice. Priority is given to low-income families. More than 4,000 students use the vouchers in more than 50 private schools, most of them religious ones.

Last December, a panel of the Sixth Circuit voted 2-1 to affirm a federal judge’s opinion the program violates the separation of church and state, because most of the schools in which vouchers are used are religious ones. In February, the full appeals court declined to reconsider the panel’s ruling but later allowed the program to continue while the opinion was appealed to the Supreme Court.

Lawyers for the Christian Legal Society wrote the brief joined in by the Ethics & Religious Liberty Commission. The Family Research Council and National Association of Evangelicals also signed on to the brief.

The ERLC signed on to the brief because it sees the case as one of “pure government religious discrimination,” said Richard Land, the entity’s president.

“We’re not taking the position as a commission on whether or not vouchers should be offered,” Land said. “We’re saying that if vouchers are offered, you can’t declare the program unconstitutional because the parents chose, in their monetarily enhanced decision-making, to place their children in a religious school of their choice.”

Land said, “We believe the establishment clause of the Constitution requires that government programs be neutral concerning religion, and this Ohio pilot scholarship program that was declared unconstitutional is, contrary to the appeals court decision, neutral. The beneficiaries are defined without regard to religion, and the beneficiaries have numerous options.”

The ERLC president cited the numerous choices parents have in redeeming the vouchers: Religious or secular private schools, charter schools and public schools in adjacent districts that choose to participate. They also may keep their children in the public schools they would normally attend and use the vouchers to pay for tutors. No suburban public schools, however, opted to be included in the program.

“To say, as the appeals court did, that the program is unconstitutional because the parents exercising their own choices chose in significant numbers to use the money to put their children in religious schools is rank discrimination against the religious choices of the parents,” Land said.

According to a recently released study, Cleveland has the lowest overall graduation rate for high schools among the 50 largest districts in the country. It also has the lowest rate for black and Hispanic students, according to the survey released Nov. 13 by the Manhattan Institute and the Black Alliance for Educational Options.

In their brief, the CLS, ERLC, FRC and NAE contend the court doctrine that government should not fund religion is not the controlling factor in the case. “To the extent that a particular case appears to pit the no-funding and neutrality doctrines against one another, the substantive neutrality principle is the key to resolving the apparent conflict,” the brief says. “Under that principle, the purpose of the religion clauses is to minimize government influence on religious choices. … [The] existence of independent private choices dictates the program not be invalidated under the no-funding doctrine.

“To suggest that the government must structure aid programs to deter beneficiaries from making religious choices contradicts the fundamental establishment clause principle of maximizing religious liberty,” the brief says.

Southern Baptists traditionally have expressed opposition to school-choice programs, but that stance has undergone some change in recent years. Messengers to the 1991 and 1996 Southern Baptist Convention meetings approved resolutions on parental choice in education. While neither specifically endorsed vouchers, both supported the concept of school choice. The 1991 resolution affirmed education-choice initiatives “fully in keeping with First Amendment protections of religious liberty and prohibitions against any governmental establishment of religion.” The 1996 resolution encouraged legislators to “develop the means and methods of returning educational and funding choices to parents.”

Land said, “I think it’s fair to say that in our assignment to call Southern Baptists to be where we think Southern Baptists ought to be on these issues, the commission does argue and has argued that vouchers are constitutional. … They can be a very effective and significant tool in bringing about desperately needed reforms in public education by enabling vastly larger numbers of parents to no longer be a monetarily captive audience to a system that’s not doing the job of educating children in many places. However, in our public policy role, as we have often clarified, there is not yet sufficient consensus among Southern Baptists that vouchers are indeed something that government should do.

“We think vouchers are a good idea, but we’re not going out representing that Southern Baptists have taken that position,” Land said. “We’re saying Southern Baptists don’t want parents to be discriminated against based on their religious choices.”

In 1996, the ERLC signed on to a CLS brief in a case before the Wisconsin Supreme Court regarding Milwaukee’s voucher program. The brief in that case argued the government cannot discriminate against religious schools when other private schools are permitted in such a program. In 1998, the U.S. Supreme Court allowed the state high court’s ruling affirming the program to stand when it refused to review the case.

The Baptist Joint Committee on Public Affairs, which represented the Southern Baptist Convention in Washington until the early 1990s, has consistently spoken against vouchers and continues to do so. When it was announced the high court would review the Cleveland case, BJC Executive Director Brent Walker said “it is time for the Supreme Court to declare [vouchers] to be unconstitutional.”

The BJC no longer is funded by the Southern Baptist Convention but receives contributions from a variety of Baptist organizations, including some state conventions and churches affiliated with the SBC.