Home - Vermonters for Better Education Home - David Kirkpatrick's pages Index School Choice Articles

OHIO SUPREME COURT RULES ON CLEVELAND PROGRAM
By David W. Kirkpatrick
June 1, 1999

On Thursday, May 27, the Ohio Supreme Court ruled on the constitutionality of the state’s Pilot Project Scholarship Program, commonly known as the School Voucher Program, which was authorized for the Cleveland school district. The Court found its passage violated a constitutional technicality - a legislative bill may contain only one subject and the program was part of a multi-subject appropriation bill, Am.Sub.H.B. No. 117, the biennial operating appropriations bill for fiscal years 1996 and 1997, passed June 28, 1995.

While People for the American Way, hailed it as closing the door on vouchers (when the Wisconsin Supreme Court upheld the Milwaukee program last June PAW did not claim it opened the door on vouchers), and National Education Association President Bob Chase offered similar sentiments, the decision did nothing of the sort. In fact, the court not only found no fault with the substance of the program, it repeatedly praised it, saying "The General Assembly had a rational basis for enacting the School Voucher Program... and (it) took extraordinary measures to attempt to alleviate an extraordinary situation." The court said "It is a significant, substantive program...which is leading-edge legislation." Its only objection was to placing such "a substantive program in a general appropriations bill violates the one-subject rule." It remarks that "private schools...provide a valuable alternative to the public system," and even refers uncritically to "parents desperate to get their child out of the Cleveland City School District." Finally, it did not make its ruling effective immediately, thus avoiding interfering with the present school year and giving the Ohio General Assembly time to reenact it.

The full decision extended is twenty pages long, but that includes information extraneous to the decision itself, such as legal citations and the participating lawyers. Because of the significance of the decision, the pertinent language of direct relevance to the impact of the decision is presented here for those wishing to read it for themselves.

Contrary to what might be assumed from the PAW proclamation, not one of the Court’s seven judges found that the program violates the religious establishment clauses of either the state or federation constitution, just one more in a growing series of such decisions at the state and national level over a period of many years.

Further, a lower court had ruled that the program violated a uniformity clause in the state constitution by setting up a program that applied only to Cleveland. While the appeal was pending, the legislature revised that so the law potentially applies to other areas of the state as well, a revision the Supreme Court accepted. It then found it unconstitutional on another technicality, that legislation only deal with one subject at a time. This is a largely ignored provision, and the Court, while listing other subjects also included in that appropriation measure, only applied its ruling to the voucher program because it was the one on appeal. The decision was 5-2, with the two dissenting judges objecting to this targeted application of the constitution, which, they said, also ignored a legal precedent in Ohio going back to 1856 that the one-subject limitation is "directory" only, not "mandatory."

However, as noted, the court gave the legislature time to correct this by passing the law again. Many expect this to happen since the legislature met an earlier judicial objection by amending the law, has increased the program’s funding from the initial $5 million to $15 million, permitted an additional 1,000 students to participate, and has expanded from K-3 to K-4 so third graders can continue to be educated where they are.

Having capsulated the decision, here is a lengthier summary, with words taken directly from the opinion by Justice Paul Pfeifer. Part I, reviewing First Amendment arguments, is the relevant part for other states. Part II concerns the religious reference in the Ohio constitution, Part III the uniformity clause and Part IV the "one subject" provision. The latter exists in some other states - Pennsylvania had a similar decision handed down a few years ago, though it did not involve school choice - and is the violation to be corrected for the program to continue.

We conclude that the current School Voucher Program generally does not violate the Establishment Clause of the First Amendment to the United States Constitution or the Establishment Clause of Section 7 Article I of the Ohio Constitution...We also conclude that the current School Voucher Program does violate the one-subject rule of the Ohio Constitution. Further, we conclude that former R.C. 3313.975(A) does violate the Uniformity Clause of Section 26, Article II of the Ohio Constitution. Accordingly, we affirm in part and reverse in part.

In Lemon v. Kurtzman (1971), the (U.S.) Supreme Court set forth a three-prong test to determine whether the Establishment Clause has been violated. Various Supreme Court justices have challenged the continuing validity of the Lemon test...Nevertheless, Lemon remains the law of the land. According to Lemon, a statute does not violate the Establishment Clause when (1) it has a secular legislative purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not excessively entangle government with religion.

The first prong of the Lemon test is satisfied when the challenged statutory scheme was enacted for a secular legislative purpose. On its face, the School Voucher Program does nothing more or less than provide scholarships to certain children residing within the Cleveland City School District to enable them to attend an alternative school. Nothing in the statutory scheme, the record, or the briefs of the parties suggests that the General Assembly intended any other results. We conclude that the School Voucher Program has a secular legislative purpose and that the challenged statutory scheme complies with the first prong of the Lemon test.

The second prong of the Lemon test is satisfied when the primary effect of a challenged statutory scheme is neither to advance nor inhibit religion. According to the Agostini court, the three primary criteria to use to evaluate whether government aid has the effect of advancing religion are (1) whether the program results in governmental indoctrination, (2) whether the program’s recipients are defined by reference to religion, and (3) whether the program creates an excessive entanglement between government and 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. To the extent that children are indoctrinated by sectarian schools receiving tuition dollars that flow from the School Voucher Program, it is not the result of direct government action. We conclude that the School Voucher Program does not create an unconstitutional link between government and religion.

It is difficult to see how the School Voucher Program could result in governmental indoctrination. No governmental actor is involved in religious activity, no governmental actor works at a religious setting, and no government-provided incentive encourages students to attend sectarian schools. We conclude that the School Voucher Program does not involve the state in religious indoctrination.

Next we consider whether the School Voucher Program defines its recipients by reference to religion. On its face, the statutory scheme does not define its recipients by reference to religion. Most of the beneficiaries of the School Voucher Program attend sectarian schools. That circumstance alone does not render the School Voucher Program unconstitutional if the scholarships are "allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and [are] made available to both religious and secular beneficiaries on a nondiscriminatory basis.

The School Voucher Program provides scholarships to students to enable them to attend certain schools other than the public school in the district in which they reside. Registered private schools admit students according to the following priorities: (1) students enrolled in the previous year, (2) siblings of students enrolled in the previous year, (3) students residing within the school district in which the private school is located by lot, (4) students whose parents are affiliated with any organization that provides financial support to the school, and (5) all other applicants by lot. We conclude that priorities (1), (2), (3), and (5) are neutral and secular and that priority (4) is not.

Under priority (4), a student whose parents belong to a religious group that supports a sectarian school is given priority over other students not admitted according to priorities (1), (2), and (3). Priority (4) provides an incentive for parents desperate to get their child out of the Cleveland City School District to "modify their religious beliefs or practices" in order to enhance their opportunity to receive a School Voucher Program scholarship. We conclude that priority (4) favors religion and therefore hold that (it) is unconstitutional.

Next we must determine if (priority 4) can be severed from the rest of the statutory scheme. The removal of (priority 4) does not render the remainder of the statutory scheme incapable of standing on its own. (It) is severable, and we sever it from the remainder of the statutory scheme.

Next we examine whether the School Voucher Program has the effect of advancing religion by excessively entangling church and state.

The primary beneficiaries of the School Voucher Program are children, not sectarian schools. For purposes of Establishment Clause Analysis, the institutions that are benefited are nonpublic sectarian schools. However, the nonpublic sectarian schools that admit students who receive scholarships from the School Voucher Program do not receive the scholarship money directly from the state. The aid provided by the state is received from the parents and students who make independent decisions to participate in the School Voucher Program and independent decisions as to which nonpublic school to attend.

To be sure, a sectarian school must register with the state before enrolled students may avail themselves of the benefits of the School Voucher Program to attend that School. However, these requirements are not onerous, and failure to comply is punished by no more than a revocation of the school’s registration in the School Voucher Program. We do not see how this relationship (which is, at least in part, preexisting, because sectarian schools are already subject to certain state standards) has the effect of excessively entangling church and state. In sum, there is no credible evidence in the record that the primary effect of the School Voucher Program is to advance religion.

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. Accordingly, we hold that the School Voucher Program does not violate the Establishment Clause of the First Amendment to the United States Constitution. We hold that (priority 4) does violate the Establishment Clause and severe it from the remainder of the statutory scheme.

Section 7, Article I of the Ohio Constitution states that "[n]o person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted." For purposes of the case before us, this section is the approximate equivalent of the Establishment Clause of the First Amendment to the United States Constitution. This court has had little cause to examine the Establishment Clause of our own Constitution and has never enunciated a standard for determining whether a statute violates it. Today we do so by adopting the elements of the three- part Lemon test. We do this not because it is the federal constitutional standard, but rather because the elements of the Lemon test are a logical and reasonable method by which to determine whether a statutory scheme establishes religion.

There is no reason to conclude that the Religion Clauses of the Ohio Constitution are coextensive with those in the United States Constitution, though they have at times been discussed in tandem. The language of the Ohio provisions is quite different from the federal language. We reserve the right to adopt a different constitutional standard pursuant to the Ohio Constitution, whether because the federal constitutional standard changes or for any other relevant reason. We reiterate the reasoning discussed during our analysis of the federal constitutional standard, and although we now analyze pursuant to the Ohio Constitution, we not surprisingly reach the same conclusion. We conclude that the School Voucher Program does not have an impermissible legislative purpose or effect and does not excessively entangle the state and religion. The School Voucher Program does not violate Section 7, Article I of the Ohio Constitution.

Section 2, Article VI of the Ohio Constitution states that "no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state." While this clause has seldom been discussed by this court, we did state in Protestants & Other Americans United for Separation of Church and State that "the sole fact that some private schools receive an indirect benefit from general programs supported at public expense does not mean that such schools have an exclusive right to, or control of, any part of the school funds of this state." According, we conclude that the School Voucher Program does not result in a sectarian school having an "exclusive right to, or control of, any part of the school funds of this state." The School Voucher Program does not violate this clause of Section 2, Article VI of the Ohio Constitution.

Section 2, Article VI of the Ohio Constitution also states that "[t]he general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State."

Private schools have existed in this state since before the establishment of public schools. They have in the past provided and continue to provide a valuable alternative to the public system. However, their success should not come at the expense of our public education system or our public school teachers. We fail to see how the School Voucher Program, at the current funding level, undermines the state’s obligation to public education. The School Voucher Program does not violate this clause of Section 2, Article VI of the Ohio Constitution.

Section 26, Article II of the Ohio Constitution, the Uniformity Clause, states that "[a]ll laws of a general nature, shall have a uniform operation throughout the State. Because the School Voucher Program is of a general nature, the Uniformity Clause applies.

We therefore must determine whether the School Voucher Program operates uniformly throughout the State. The General Assembly amended R.C. 3313.975(A), effective June 30, 1997. Former(ly it) stated that the School Voucher Program was limited to "one school district that, as of March 1995, was under a federal court order requiring supervision and operational management of the district by the state superintendent." We agree with the court of appeals and find that former R.C. 3313.975 (A) violates the Uniformity Clause because it can only apply to one school district.

For purposes of judicial economy, we will also rule on the constitutionality of the current R.C. 3313.975 (A),l as amended on June 30, 1997. (It) now reads that the School Voucher Program is limited to "school districts that are or have ever been under a federal court order requiring supervision and operational management of the district by the state superintendent." It is clear that the current School Voucher Program does not apply to the vast majority of the school districts in the state. At the time this case was filed, the School Voucher Program was in effect only within the Cleveland City School District. However, that does not mean that the School Voucher Program cannot satisfy the Uniformity Clause.

In State ex rel. Stanton v. Powell (1924), this court stated: "Section 26, Art. II of the Constitution [the Uniformity Clause] was not intended to render invalid every law which does not operate upon all persons, property or political subdivision within the state. It is sufficient if a law operated upon every person included within its operative provisions, provided such operative provisions are not arbitrarily and unnecessarily restricted. And the law is equally valid if it contains provisions which permit it to operate upon every locality where certain specified provisions prevail."

The General Assembly amended R.C. 3313.975 (A) after the court of appeals determined that the former (wording) violated the Uniformity Clause. The Cleveland City School District is the only school district that is currently eligible for the School Voucher Program. However, the statutory limitation, as amended, does not prohibit similarly situated school districts from inclusion ion the School Voucher Program in the future.

The General Assembly had a rational basis for enacting the School Voucher Program, which relates to a statewide interest, and for specifically targeting the Cleveland School District, which is the largest in the state and arguably the one most in need of state assistance. Further, the School Voucher Program is a pilot program, which suggests that the General Assembly is experimenting to determine whether the voucher concept is beneficial or worthy of further implementation. The distinction between districts that satisfy the conditions and those that do not is not artificial. The General Assembly took extraordinary measures to attempt to alleviate an extraordinary situation. That other school districts also have significant problems does not mean the distinction between school districts under state supervision by order or a federal court and other school districts is not real.

We conclude that the School Voucher Program operates uniformly throughout the state because it operates upon every person included within its operative provisions and those operative provisions are not arbitrarily or unnecessarily restrictive. The School Voucher Program, although extremely limited in its current application, is a law of a general nature and operates uniformly throughout the state. Accordingly, it does not violate the Uniformity Clause.

Section 15(D), Article II of the Ohio Constitution states that "[n]o bill shall contain more than one subject, which shall be clearly expressed in its title." This court has stated that the one-subject rule "is merely directory in nature." However, the court elaborated by stating that when there is an absence of common purpose or relationship between specific topics in an act and when there is no discernible practical, rational or legitimate reasons for combining the provisions in one act, there is a strong suggestion that the provision were combined for tactical reasons, i.e., logrolling. Inasmuch as this was the very evil the one-subject rule was designed to prevent, an act which contains such unrelated provisions must necessarily be held to be invalid in order to effectuate the purposes of the rule.

Am.Sub.H.B. No. 117 contained three hundred eighty-three amendments in twenty-five different titles of the Revised Code, ten amendments to renumber, and eighty-one new sections in sixteen different titles of the Revised Code. There is considerable disunity in subject matter between the School Voucher Program and the vast majority of the provisions of Am.Sub.H.B. No. 117. The one-subject rule is part of our Constitution and therefore must be enforced.

Given the factors discussed above, we conclude that creation of a substantive program in a general appropriations bill violates the one-subject rule. Accordingly, the School Voucher Program must be stricken from Am.Sub. H.B. No. 117.

In order to avoid disrupting a nearly completed school year, our holding is stayed through the end of the current fiscal year, June 30, 1999.

(EDITOR’S NOTE: The court, in these final two paragraphs, does not say the Program is impermissible; only that it must be removed from the appropriations bill passed in June, 1995, which contained too many unrelated subjects, that there is the strong possibility of its acceptability to the court if the legislature passes it by itself, and the court gave them time to do it. - DWK)