News: Rights Watch
Vouchers on Trial

One court rules they're unconstitutional in Cleveland, while a Florida court gives the OK for now.

In one of the most important voucher rulings to date, a federal appeals court has declared that the Cleveland voucher program violates the U.S. Constitution. The U.S. Court of Appeals for the Sixth Circuit ruled on December 11 that the use of taxpayer money to fund religious education breaches the wall of separation between church and state.

"This scheme," the court said, "involves the grant of state aid directly and predominantly to the coffers of private religious schools."

"We certainly hope everyone will get the message," says Robert Chanin, NEA general counsel and the attorney who argued the case in court. "And the message is 'Let's focus on improving the public schools and stop playing around with vouchers as a panacea.'"

Cleveland-area vouchers are worth up to $2,250, depending on family income. For the 1999-2000 school year, 3,761 students received vouchers. Those students have been allowed to continue in the program during the appeal.

On paper, the voucher students were free to attend either public or private schools. But in fact, fully 96 percent of the students used the vouchers to attend pervasively sectarian schools.

And the court was deeply concerned that public money was being spent to subsidize religious indoctrination.

As an example, the court cited one voucher school that requires its students to "pledge allegiance to the Christian flag and to the Savior for whose Kingdom it stands...."

In declaring the program unconstitutional, the Sixth Circuit relied on a 1973 U.S. Supreme Court decision known as Nyquist that struck down a similar voucher plan from New York.

The court's 2-1 decision provoked a particularly vociferous dissent from Judge James Ryan. The Reagan appointee accused the two judges in the majority of "nativist bigotry" and claimed that their "antireligious" ruling will result in "sentencing nearly 4,000 poverty-level, mostly minority, children to return to the indisputably failed Cleveland public schools."

The two judges in the majority dismissed the dissent's allegations as nothing more than "gratuitous insults" that "should not be taken seriously."

Ohio state officials recently asked the entire appeals court to rehear the case, but a decision is not expected for several months. Lawyers on both sides agree that the case likely will wind up before the U.S. Supreme Court, where the outcome is anyone's guess.

Meanwhile, a Florida appeals court last October upheld that state's voucher program, although the court sidestepped the question whether the program violates the federal Constitution's prohibition of public funding for religious education.

The lower court had ruled that the state can't "pay for private education" because the state constitution requires the state to maintain a "high quality system of free public schools." The appeals court reversed the decision.

Under the Florida plan, students who attend public schools designated by the state as "failing schools" twice in a four-year period are eligible for vouchers.

But only 52 students are currently participating in the program. No new students were added this year because none of the public schools that previously received failing grades got an "F" again this year.

An appeal in the case is now pending before the Florida Supreme Court.

Between the defeat of voucher ballot initiatives in California and Michigan last November and the Sixth Circuit's important ruling, voucher proponents have taken it on the chin of late.

Undaunted, they apparently have now taken aim at the federal treasury.

President George W. Bush has already vowed to push for legislation that lets parents use "their share of federal funding" to pay for private schooling.

Watch this space for an update.

--Michael D. Simpson
NEA Office of General Counsel

The Ohio decision is posted at http://pacer.ca6.uscourts.gov/cgi-
bin/getopn.pl?OPINION=00a0411p.06. The Florida decision is posted at http://www.1dca.org/opinion/10-03-2000/00-1121.htm.

Courts uphold affirmative action in student admissions

Efforts to promote student diversity through affirmative action got a big boost last December when two federal courts ruled that the practice is lawful.

Significantly, both decisions relied on the U.S. Supreme Court's 1978 ruling Regents of the Univ. of California v. Bakke in holding that an applicant's race can be one factor--among others--considered by institutions of higher education in making admissions decisions.

Affirmative action opponents had argued that Bakke has been overturned, but these courts disagreed.

• In Washington, the U.S. Court of Appeals for the Ninth Circuit upheld the University of Washington Law School's affirmative action program, declaring that "the attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education." (The university abandoned the challenged policy, however, after Washington voters passed a ballot initiative banning racial preferences in public education.)

• In Michigan, federal judge Patrick Duggan declared that the University of Michigan's affirmative action admissions policy is legal under Bakke, citing "solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body." Lawyers for the plaintiffs have already announced that they will appeal.

• But in Georgia, a federal district court last year struck down the University of Georgia's affirmative action program. That decision has been appealed to a federal appeals court, setting up a possible showdown before the U.S. Supreme Court over whether Bakke is still the law of the land.