Ohio Court Calls Voucher Plan Constitutional But Illegal -- 05/28/1999

Ohio Court Calls Voucher Plan Constitutional But Illegal

28 May, 1999

By Justin Torres
CNS Senior Staff Writer

(CNS) – In a decision hailed by both school vouchers supporters and opponents, the Ohio Supreme Court has struck down a Cleveland school choice program on technical grounds, but has affirmed that the program does not violate the establishment of religion clause of the Constitution.

The state Supreme Court, in a 5-2 decision, struck down a Cleveland program that provided school vouchers to underprivileged students in city schools on grounds that it violated the "single subject" provision of Ohio law that requires bills introduced in the state legislature to deal with only one topic.

The vouchers program had been passed as part of a larger appropriations bill.

However, Justice Paul Pfeiffer, ruling that the program did not violate the First Amendment, wrote for the majority, "[w]hatever 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."

School vouchers opponents such as Carole Shields, president of the People for The American Way, ignored the constitutional comments by the court and said that the decision "sends a message that vouchers are the wrong answer for education."

Shields added that for voucher opponents, "the message is that we must roll up our sleeves and do whatever it takes to strengthen public education."

However, Dr. Chester Finn, John M. Olin Fellow at the Manhattan Institute and president of the Thomas B. Fordham Foundation, and an expert in education policy, told CNS that Shield's interpretation of the ruling "a description of the cloud that willfully ignores the silver lining. . . . This is a Pyrrhic victory for them at best–they won this battle but they may very well have lost the war."

"If I were a parent in Cleveland, I'd be disconsolate over this decision," Finn added, "but on a national level, this is definitely a win" for vouchers.

Presently, the issue returns to the state legislature, which will have the opportunity to reenact the legislation in a separate bill. Ohio governor Robert Taft indicated in a release yesterday that he would support such legislation.

Brandon Lynaugh, spokesperson for the Buckeye Institute, an Ohio public policy institute in Dayton, told CNS that a battle over repassing the legislation was sure to ensue.

"The governor and the legislature have no choice–they have to go back and revisit the issue, especially since the wording of the decision upheld the constitutionality of the program" said Lynaugh.

"But it is opening up the wound again, and allows organizations and teacher's unions another shot at derailing this legislation."

Repeated calls to the Ohio Education Association were not returned, but Americans United for Separation of Church and State, which filed an amicus brief in the case, told reporters the decision was "half right" and vowed to "battle this thing in the legislature."

Nationwide, vouchers programs in various forms have been upheld by the courts in Arizona and Wisconsin, and rejected in Maine.

Also recently, Florida Governor Jeb Bush pushed the first statewide vouchers programs in the nation through the Florida legislature–though a similar program died in a special legislative session in New Mexico.

Overall, said Samuel Casey Carter, a Bradley fellow in education at the Heritage Foundation, vouchers are gaining momentum nationwide.

"The First Amendment question has been resolved," Carter told CNS. "It's now for the school choice movement to win its legislative fights on the state level."

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