Wednesday, June 21, 2000

Voucher appeal could be decisive

Case heard here might go to top

By James Pilcher
The Cincinnati Enquirer

        Both sides arguing the Cleveland school voucher case before a federal appeals court Tuesday hope the U.S. Supreme Court uses the case to settle the issue once and for all.

        The appeal was argued Tuesday before a three-judge panel of the the 6th U.S. Circuit Court of Appeals in Cincinnati. A federal judge has ruled the program unconstitutional.

        “This case might be the best candidate,” said Marianna Brown Bettman, a former Ohio Appeals Court judge who is now a law professor at the University of Cincinnati. “This has a lot of the fundamental issues in it, and the issue of vouchers has been simmering in the lower courts for awhile.”

        Lawyers for participating families contended before the court Tuesday that the state's school voucher program is legal because parents can choose between religious and secular schools.

        “The parents have complete choice, because they're in the driver's seat,” said Edward B. Foley, a lawyer from the Ohio Attorney General's Office.

        Voucher opponents say the program violates the Constitution by allowing the use of public money to support religious schools.

        “Government money is not supposed to go to support sectarian institutions,” Marvin E. Frankel, a lawyer for opponents, told the appeals court.

        Appeals Judges Eugene Siler Jr., Eric Clay and James Ryan did not say when they will rule.

        With differing forms of voucher systems popping up all over the country, a ruling by the Supreme Court in the Cleveland case could settle the issue for the entire country.

        “You've got judges looking at how the policy should work and other judges looking at the reality of the system,” said Dr. Brown Bettman. “Establishment-clause jurisprudence is messy ... and someone needs to settle it.”

        A decision in favor of the Cleveland program could open the possibility of such a voucher system in the Cincinnati area.

        “If this is upheld, I would expect that similar voucher programs would spread to other urban areas where we have pockets of significant problems and low-income minority children not getting an adequate education,” said David Young, general counsel for the Columbus-based Catholic Council of Ohio, which supports vouchers, as does the Archdiocese of Cincinnati.

Vouchers in action
        The Cleveland voucher program involves about 3,600 students, and allocates up to $2,250 per child in state-funded tuition payments for low-income parents to send their children to private schools.

        The U.S. Supreme Court has already weighed in on the case, ruling 5-4 in November that new students could enroll in the program and that it could continue as the case proceeds through the courts.

        The pilot program was created by Ohio lawmakers concerned with the quality of education in Cleveland public schools.

        As Tuesday's arguments were finishing inside the courtroom, nearly 100 pro-voucher supporters held a rally in Fountain Square, drawing participants from states such as Colorado, New Mexico and Wisconsin.

        “If we don't have a choice, then the public education system is nothing but a monopoly,” said Tony Kaloger, a 39-year-old illus trator from Cleveland who has two children in the voucher program and who attended Tuesday's arguments. “But the government is dead set on breaking up Microsoft. We don't like the double standard set here and want to do with our tax dollars what we will.”

        The Supreme Court has declined to hear voucher cases from Wisconsin, Maine and Vermont. A Florida case has been appealled to the state Supreme Court, so the U.S. Supreme Court is expected to stay out.

        That leaves the Cleveland suit as the only active voucher case in the federal system, giving both sides hope that the case will make it to Washington.

        “We think this case possibly has national significance,” said Susan Mitchell, president of the Milwaukee-based American Education Reform Foundation, who was present at both the courthouse and the rally. “The hopes of 8,000 kids in that city (Milwaukee) and families in other states who want the power to choose the schools best for their kids may well rest with this case.”

        Chris Link, executive director of the American Civil Liberties Union of Ohio, said that she would like to see the issue resolved, but said the court could wait for a case other than Cleveland's.

        “There are a lot of idiosyncrasies in this case, especially since it is a pilot project, and I'm sure the court wants a clean example that would cover all the bases,” said Ms. Link, whose organization is part of a coalition suing the state over the system. “But they've got to resolve it eventually, and it might as well be now. If they don't, they'll be causing chaos in the country's education system until it is decided once and for all.”

        The Associated Press contributed to this report.



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