Cleveland’s School Voucher Program: The Politics and the Law

A legal challenge to the Cleveland school voucher program is currently pending before the Ohio Supreme Court. This article attempts to clarify issues involved in this legal challenge, and to voucher programs generally.

Cleveland, like most major cities in America, suffers from a failing public education system. Despite spending $6,195 per pupil in 1995—sixteen percent more than the state average—the Cleveland City School District’s (CCSD) performance was abysmal. The dropout rate was more than twice the state average; only nine percent of Cleveland ninth graders passed a basic proficiency test; students were statistically more likely to become victims of crime than to graduate on time with basic proficiency. The district’s debt-to-revenue ratio was a crippling twenty-five percent, making it the hands-down debt leader in the state. The Auditor of the State of Ohio declared that "the educational delivery system is not accomplishing its purpose," and a federal judge ordered the state superintendent of education to assume control of CCSD’s finances and administration. In short, Cleveland spent a tremendous amount of money on public education, yet failed to produce educated students.

To address this crisis, the legislature chose to take drastic action: it enacted a school choice program. The program grants parents selected by lottery a maximum of $2,250 to send their K-3 child to their choice of approved private schools within the Cleveland district, or to participating public schools in adjacent districts. The program also provides that an equal number of $500 grants for tutoring service be offered to public school students within the district.

The response was overwhelming. The state received over 6,400 applications, and granted almost 2,000 scholarships. Over fifty private schools registered to participate in the program, including Protestant, Catholic, Muslim, and non-sectarian schools, however no adjacent public schools chose to participate.

The initial results of the Cleveland experiment are promising. A study conducted by Professors Jay P. Greene of the University of Texas at Austin, William G. Howell of Stanford University, and Paul E. Peterson of Harvard University analyzed parent satisfaction and student performance in the first year of the program, comparing students who received scholarships to those who applied for scholarships but did not enroll in the program. Voucher parents were more satisfied than public school parents in every category, including academic quality, safety, discipline, class size, and the teaching of moral values. In standardized tests, voucher students decreased five percentile points in verbal skills compared to the national norm, but increased a dynamic fifteen percentile points in math and five percentile points in reading. In comparison to Cleveland public schools, voucher schools educated poorer children, cost the taxpayers less money, offered a safer learning environment, and achieve
d quantifiable academic improvement.

The results reported by professors Green, Howell, and Peterson almost did not come to pass. Before the state fully implemented the program, taxpayers and a teachers union filed a legal challenge claiming the use of public funds for sectarian education violated the religion clauses of the state and federal constitutions. On July 31, 1996, Judge Lisa Sadler of the Franklin County, Ohio Court of Common Pleas ruled the program constitutional. On appeal, however, a three judge panel ruled the program unconstitutional. The case is currently on appeal before the Ohio Supreme Court, and will almost certainly be appealed to the U.S. Supreme Court. Whether at the Ohio or U.S. Supreme Court, the case promises to set a major precedent on the constitutionality of school choice programs that include sectarian schools.

Like most major lawsuits, the Cleveland case brings together a variety of interest groups, including the ACLU, People for the American Way, and Americans United for the Separation of Church and State. Of the groups involved in the case, however, none has had more influence than the teachers unions. The Ohio Federation of Teachers (OFT) is a named plaintiff in the case; OFT’s national parent organization, the American Federation of Teachers, produced a skewed study attempting to malign the effectiveness of the Cleveland voucher program; an attorney from the Ohio Education Association (OEA) is serving as counsel in the case; and attorneys from the National Education Association (NEA) are providing significant legal assistance. This does not account for union activity aimed at preventing the passage of the voucher program in the first place.

Cleveland’s story is just one of many. Unions have mounted similar opposition to school choice programs and initiatives across the nation. The only other city to experiment with school choice—Milwaukee—has been deluged by union cash and lawyers opposing the program. In California, unions increased dues to collect the more than $20 million used to defeat a state school choice initiative. Unions lobbied extensively and successfully to defeat D.C. voucher legislation before Congress, despite D.C. public schools’ frequent and extended closures due to unsafe conditions, failure to teach basic skills, pervasive mismanagement and lack of supervision exemplified by fourth graders performing group sex acts on school property, and operating costs exceeding $9,000 per pupil per year.

Given the grave state of education in America’s largest cities, why do unions vehemently oppose school choice? The answer is not found in their legal briefs, which argue against public funds for sectarian institutions. Union opposition to private vouchers in New Jersey make this clear. Rather, the answer arises from NLRB v. Catholic Bishop of Chicago, a 1979 case in which the Supreme Court declared that schools operated by churches to teach both religious and secular subjects are not within the jurisdiction of the National Labor Relations Act. Accordingly, church-run schools need not recognize unions as exclusive bargaining agents for their teachers.

Teachers unions receive significant benefits from exclusive bargaining status. Thirty-four states allow "union shops," under which teachers are required to pay union dues as a term of employment. Teachers’ unions flourish from such practices, both in membership and revenues. The National Education Association (NEA) is the largest labor union in the United States with 2.3 million members, and the American Federation of Teachers (AFT) boasts 940,000 members. Myron Lieberman of Bowling Green State University estimates that local, state, and national teachers unions collect $1.3 billion in dues annually, not including money controlled by their political action committees.

If school choice proposals are implemented and upheld by the courts, membership and dues would necessarily decline as students and teachers shift to sectarian schools that are virtually immune to unionization. Union opposition to school choice is simply an effort to maintain a collective bargaining monopoly, even if that monopoly comes at the expense of children’s education.

While there are other less significant claims raised in the lawsuit, the core legal question is whether the Cleveland program violates the religion clauses of the Ohio and U.S. Constitutions. Both the trial and appellate courts declared the religion provisions of the Ohio Constitution to be coextensive to those in the U.S. Constitution, thus limiting necessary inquiry to the U.S. Constitution. Due to the supremacy of the U.S. Constitution, I will focus on its requirements, however, I note that a careful reading of Article I, Section 7 of the Ohio Constitution suggests an affirmative duty on the part of the state assembly to encourage sectarian education.

The religion clause of the First Amendment to the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

This brief section of the First Amendment contains the core of the Constitution’s explicit guarantees of religious freedom: freedom to practice the religion of one’s own choosing, and freedom from government establishment of religion. It is from the phrase, "Congress shall make no law respecting an establishment of religion," commonly referred to as the Establishment Clause, that the legal basis for the separation of church and state is found, and it is this phrase that is source of the legal controversy in the Cleveland case.

Despite the apparent clarity of the phrase, the Establishment Clause continues to be one of the most fervently debated sections of the Constitution. While there is general agreement that the government may not create a formal establishment by recognizing a state church, taxing citizens to support churches, or requiring church membership, broad consensus ends there. Views on the Establishment Clause range from strict separationists, who believe that even incidental aid to or recognition of religion by government violates the Establishment Clause, to accommodationists, who believe that government should act according to the religious character of the people, and that non-preferential aid to religion does not constitute an establishment of religion.

The current debate over the Establishment Clause is relatively new. It was not until 1947 in the case of Everson v. Board of Education that the U.S. Supreme Court incorporated, or applied the Establishment Clause to the states through the Fourteenth Amendment. Prior to Everson, the Establishment Clause only applied—as the clause explicitly says—to Congress. Everson also marked the first major attempt by the Court to define what the Establishment Clause means. The Court declared that beyond merely prohibiting state churches, the clause means that "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

The question begged by Everson and its progeny, and the core question in a legal analysis of school vouchers, is whether neutral aid to religion is permissible. In an era of expansive government programs, are religious institutions and individuals foreclosed from participation in general programs or receipt of general benefits simply because of religious character?

A series of recent U.S. Supreme Court decisions indicate that the neutral allocation of benefits to religious individuals or institutions can withstand judicial scrutiny. In Witters v. Washington Dept. of Services For Blind (1986), the Supreme Court declared that a student’s use a general state education subsidy for the blind to attend Bible college did not violate the Establishment Clause. The Court continued this neutral benefits reasoning in Zobrest v. Catalina School District (1993), in which it found that a deaf student could not be denied access to a program providing government funded interpreters based upon the student’s attendance at a parochial school. In Rosenberger v. The Rector and Visitors of the University of Virginia (1995), the Court ruled that a student group could not be excluded from a general student activity fund solely because of the group’s religious viewpoint. Finally, in the 1997 case of Agostini v. Felton, the Supreme Court o
verruled a previous decision, finding that a general remedial education program is permissible on sectarian school campuses. In so doing, the Court declared its departure from the rule "that all government aid that directly aids the educational function of religious schools is invalid."

While these cases provide promise for the legal prospects of voucher programs, they should not be mistaken for acceptance of all neutral aid programs by the Court. The Court still contends that the permissibility of neutral aid to sectarian institutions hinges upon the nature of the aid, particularly whether the aid is direct or indirect. Fundamental to the direct versus indirect question is whether the beneficiary of the program is an institution or an individual. Simply assuring that an individual receives the check is not sufficient, however. The Court also requires that the individual have genuine, independent choice.

The appellate court found the Cleveland voucher program favored sectarian education, and therefore failed to pass constitutional muster. Specifically, the Court questioned whether the program allowed genuine, independent choice, based upon the lack of participation by adjacent public school systems, the sectarian status of the majority of the private schools, the comparatively lower value of the tutorial grants, and the abysmal state of Cleveland public education, all of which contributed to an improper incentive for religious education.

The facts, however, contradict this conclusion. Financially, voucher parents must still contribute ten percent of the value of the private education from their own pockets or by performing service at the schools. Public schools, by contrast, offer free education. While the majority of the schools participating are sectarian, a significant number of students—approximately 450—chose to attend non-sectarian private schools, indicating that significant non-sectarian options existed. While the tutorial grants are only worth about $500, the total taxpayer funded benefit given to public school students receiving such grants totals almost $6,700. The maximum a voucher child can receive, however, is only $2,250. Finally, the argument that poor educational conditions at Cleveland public schools prohibit the utilization of vouchers because rational parents will choose to send their children to better schools that might be sectarian defies logic. The sectarian schools are included in the progr
am because they perform a vital, secular function: basic education. Parents may choose to send their children to religious schools because they rationally believe the religious schools better perform this secular function without raising the specter constitutional injury.

The Cleveland voucher program meets the requirements enumerated by the Court for neutral aid to sectarian institutions. First, the program is neutral: it allows parents to use vouchers for any private schools or adjacent public schools registered for the program without regard to the sectarian or secular status of the institution. The purpose of the program is not to promote religion, but rather to promote the secular interest of educating the children of Cleveland. Second, the state does not grant aid directly to sectarian institutions, but rather gives a voucher to parents, who sign the voucher over to the school of their choice. In this respect, the program is analogous to the program upheld in Witters, because no funds reach sectarian institutions but for the choice of individuals. Third, the parents have genuine independent choice. They are free to stay in Cleveland public schools, to use their voucher for non-sectarian or sectarian private schools (or adjacent public
schools, should any choose to participate), or to apply for a public school tutorial grant.

The public education system in America is in real trouble. America’s major cities pay too much to produce children who are poorly educated. The Cleveland voucher program is a reasonable attempt to solve this crisis. The vouchers allow the poorest children in the inner-city an opportunity to receive a good education, and permit parents the opportunity to send their children to schools that teach the sort of moral and religious values that have too long been absent in our public schools. This voluntary choice does not violate the Constitution’s Establishment Clause, because the program is neutral and indirect: any benefit flowing to religious institutions arises from genuinely individual choice. While vouchers may not be a panacea for the problems of inner-city education, they are a definite improvement over the degenerating status quo.

Robert Alt works in the Government Reform Project at The Heritage Foundation, and is an Adjunct Fellow at the Ashbrook Center.