Court Brief: Cleveland Voucher Program Unconstitutional

Supreme Court Brief Summarizes Key Arguments Against Vouchers; Diverse Array of Organizations File Amicus Briefs in Case

The Cleveland school voucher program conveys an unconstitutional state endorsement of religion "to no less a degree than if the State had made direct unrestricted government payments to the participating sectarian private schools providing a religious education," according to a brief filed Friday at the U.S. Supreme Court by attorneys from People For the American Way Foundation and several other organizations. With oral arguments in the case barely two months away, the brief summarizes some of the major arguments that voucher opponents are using before the Court in Zelman v. Doris Simmons-Harris. Last Friday was the deadline for filing briefs in opposition to the voucher program.

Attorneys from PFAWF, the National Education Association/Ohio Education Association, Americans United for Separation of Church and State, and the American Civil Liberties Union Foundation are serving as co-counsel to Doris Simmons-Harris and others who challenged the Cleveland voucher program, and who are respondents in the Supreme Court case. A copy of the brief can be obtained at: http://www.pfaw.org/issues/education/ZelmanMeritsBrief.pdf

The brief addresses key questions concerning the Establishment Clause of the First Amendment. It was on the basis of the Establishment Clause that the 6th U.S. Circuit Court of Appeals found the Cleveland voucher program to be unconstitutional. The brief, filed with the Supreme Court by the law firm of Bredhoff & Kaiser, notes that the program is set up in such a way that "the great majority of Voucher Program parents must send their children to sectarian private schools providing a religious education in order to obtain the benefits that the (publicly funded) Program offers."

To support its contention that the Cleveland program amounts to a state advancement of religion, the brief cites data referenced by the appeals court showing that 82 percent of the private schools participating in the Cleveland voucher program are religious institutions, and that, by the year 2000, approximately 96 percent of all vouchers were routed to these sectarian schools. A recent report by PFAWF, Five Years and Counting: A Closer Look at the Cleveland Voucher Program, examines these and other issues concerning the city’s voucher program. The report Five Years and Counting is available at: http://www.pfaw.org/issues/education/cleveland-9-21.pdf

The brief also explains that the Cleveland voucher program is structured in such a way that funds "that flow to participating private schools are entirely unrestricted, and may be used by the participating sectarian private schools for whatever purposes the schools deem necessary and appropriate," including the purchase of religious icons or prayer books, as well as activities or facilities that serve to "support or maintain religious education, indoctrination, worship, and other religious activities." These and other features, the brief argues, make the Cleveland program "identical in all constitutionally-relevant respects to the tuition grant programs struck down" in previous Supreme Court decisions.

In addition to this brief and a brief filed on behalf of another group of plaintiffs by attorneys from the American Federation of Teachers and others, a diverse and impressive list of education, religious, children’s and civil rights groups has filed amicus curiae or "friend of the court" briefs. An amicus brief filed on behalf of the National School Boards Association and other parties, for example, notes that the Supreme Court itself has recognized that public schools are unique and critical—an institution through which "diverse and conflicting elements in our society are brought together on a broad but common ground." The brief adds that vouchers pose a threat to this important role of public education: "The essence of the American public school system is a publicly funded, publicly accountable education that is open to all. …. Voucher programs … ignore the obligations of the states to all students."

While supporters of the Cleveland voucher program claim it is specifically designed to help children in inadequate public schools, the amicus brief filed on behalf of the NAACP and NAACP Legal Defense and Educational Fund points to a recent report that found that nearly one out of three voucher students had previously attended private schools. By directing vouchers to a relatively small number of students—some of whom may never have attended Cleveland public schools—the NAACP brief declares that the Cleveland plan "represents a deliberate decision not to focus the State’s resources on the larger group of children whose educational circumstances are so severely limited." Indeed, this brief adds, "The (voucher) program at issue is not one which offers any promises, or even hope, of achieving ‘equal educational opportunities’ for the scores of thousands of African-American and other minority students in the Cleveland public schools

Among the many other organizations that have filed amicus briefs are: the Baptist Joint Committee on Public Affairs, the National Alliance of Black School Educators, the Coalition of Rural and Appalachian Schools, the National Association for Bilingual Education, the National Center for Science Education, and the National Parent Teacher Association. A complete list of groups that have filed amicus briefs in support of the 6th Circuit’s decision is available at: http://www.pfaw.org/issues/education/reports/amici_orgs_clev.pdf

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