n a 5-2 decision announced this past Wednesday, Ohio's Supreme Court ruled that a school voucher program in Cleveland violated the state's "one-subject rule," but found that voucher did not infringe on the constitutional requirement of separation of church and state. According to the Cleveland Plain Dealer newspaper, the ruling leaves "the door open for legislators to create an acceptable program." The court postponed imposition of its decision until June 30, well after the current school term expires; this also gives Gov. Bob Taft and legislators time to devise a new way of salvaging the voucher program.

   The Ohio program was the first state voucher experiment in the nation; now in its third year, it covers over 3,600 students from kindergarten through the fifth grade by providing parents with up to $2,250 per year for tuition at private schools. Critics say that this allows parents to send children to sectarian, religious schools using tax money.

   The high court questioned whether or not the program had been implemented property when it was established through an amendment to the 1995 state budget. In his majority opinion, Justice John Paul E. Pfeifer declared, "There is a blatant disunity between the school voucher program and the other items contained in the (state budget bill)... Further, we have been given no rational reason for their combination, which strongly suggests that the inclusion of vouchers in the bill was for tactical reasons." Under the Ohio constitution, any piece of legislation is limited to only one subject; the voucher amendment was attached improperly to an omnibus bill.

   But the justices rejected arguments that the voucher program violated the separation of church and state required by both the Federal and Ohio State Constitutions. "We conclude that the school voucher program has a secular legislative purpose, does not have the primary effect of advancing religion, and does not excessively entangle government with religion...Whatever 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..."

   Wednesday's decision raises questions for some, though, that the program can be salvaged. Portage County State Sen. Leigh Herington argued that support for vouchers has eroded in the face of practical implementation, and declared "Everybody would have to admit that the Cleveland voucher program has not distinguished itself. We can't even get a handle on whether this program is academically successful." Cincinnati attorney Donald Mooney Jr. who successfully argued the case on behalf of the American Federation of Teachers, noted the mixed evaluations of the program, as well as a 1998 audit that found $2 million in "questionable" expenses. The latter included a whopping $1.4 million for taxi fares to transport students to the private schools.

   Unfortunately, the dissenting justices bypassed First Amendment objections, and excoriated their fellow jurists for interfering in the legislative process.

This latest ruling means that state supreme courts across the country have split 2-1 in favor of voucher programs, and the use of government money to pay tuition at parochial and other sectarian schools. Wisconsin's high court upheld a Milwaukee voucher program in 1998, while in April of this year Maine's Supreme Judicial Court declared that voucher expenditures at Roman Catholic schools were an impermissible establishment of religion. If Federal courts become further involved in the voucher controversy and reach conflicting decisions, the U.S. Supreme Court may be forced to take up the issue; since the Ohio case was interpreted through the state constitution, it cannot be appealed directly to the nation's highest court, though. Other programs in Minnesota and Arizona could be challenged though; and a legal contest is expected over a new Florida voucher system recently enacted by that state's legislature which takes effect next year.

[text only]