Voucher opponents contend that voucher programs threaten students’ religious liberty and violate the separation of church and state. The face value of vouchers—a maximum of $2,250 per student—has attracted mainly religious schools, whose tuition rates are often kept low by subsidies from churches or other institutions. As a result, voucher parents’ choices are limited largely to religious schools, and Ohio taxpayers, in effect, are subsidizing religion. During the 1996-97 school year, 77 percent of voucher students attended 46 religious schools, 35 of which were Catholic.62 By 2000, more than 80 percent of private schools accepting voucher students were religious, and approximately 96 percent of all vouchers were routed to these schools.63 By the end of the 1998-99 school year, the city’s Catholic schools had received $3.3 million for voucher students, even as their overall enrollment continued to decline. This led two investigative reporters for the Akron Beacon Journal to observe that "the voucher program merely slowed an exodus from Cleveland’s Catholic schools to the city’s public schools."64 Additionally, students attending religious schools generally cannot opt out of religious worship or activities.65 Hence, in order to benefit from the voucher program, students must participate in religious activities even if these activities are contrary to their own or their families’ beliefs.
In December 2000, the U.S. Court of Appeals for the Sixth Circuit acknowledged this fact in noting that the "mission statements of these [voucher] schools reflect that most believe in interweaving religious beliefs with secular subjects. The sectarian schools also follow religious guidelines, including instruction in religion and mandated participation in religious services…." The court cited examples of voucher schools’ mission statements, including one school that requires students to "pledge allegiance to the Christian flag and to the Savior for whose Kingdom it stands, One Savior crucified, risen and coming again with life and liberty for all who believe." Another voucher school believes that "the one cardinal objective of education to which all others point is to develop devotion to God as our Creator, Redeemer, and Sanctifier." The court found that "[t]his scheme involves the grant of state aid directly and predominantly to the coffers of the private, religious schools, and it is unquestioned that these institutions incorporate religious concepts, motives, and themes into all facets of their educational planning.66
As a result, the U.S. Court of Appeals upheld a lower court ruling that permanently enjoined the Cleveland voucher program on the grounds that it unconstitutionally advances religion, finding that "when, as here, the government has established a program…which restricts [student] choice to a panoply of religious institutions and spaces with only a few alternative possibilities, then the Establishment Clause is violated."67 The State of Ohio and voucher advocates represented by the pro-voucher Institute for Justice requested in May 2001 that the U.S. Supreme Court review the case.68 The Bush administration filed a brief supporting the request, and a decision from the Court on whether to take the case is expected by October 1.