[Congressional Record (Bound Edition), Volume 146 (2000), Part 18]
[Extensions of Remarks]
[Pages 27272-27273]
[From the U.S. Government Publishing Office, www.gpo.gov]



       CLEVELAND SCHOOL VOUCHER PROGRAM DECLARED UNCONSTITUTIONAL

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                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Friday, December 15, 2000

  Mr. CONYERS. Mr. Speaker, today I am pleased to offer for the record 
my congratulations to Judge Eric L. Clay of the United States Court of 
Appeals for the Sixth Circuit, an outstanding judge, and a man who 
possesses a high degree of common sense and pragmatism. Judge Eric L. 
Clay ruled that the Cleveland school voucher program was 
unconstitutional, because it did not present parents with a real set of 
options, and few nonreligious private schools and no suburban public 
schools had opened their doors. He wrote, and I quote, ``This scheme 
involves the grant of state aid directly and predominately to the 
coffers of private, religious, schools, and it is unquestioned that 
these institutions incorporate religious concepts, motives, and themes 
into all facets of their educational planning.'' Judge Clay is a 1997 
Clinton appointee.
  Given the current national debate around school vouchers, his ruling 
is of critical importance to a full understanding of the issue. 82% of 
the citizens of Detroit recently held a referendum, and voted down the 
use of school vouchers. It is my firm belief all children should have 
the opportunity to attend first class public schools that have the 
highest academic standards, and the best learning environment possible. 
This can be best achieved by reducing class size, hiring more teachers, 
teaching phonics, implementing mentoring and after school academic 
enrichment programs, universal Head Start, increasing teacher's 
salaries, and creating a world class public school infrastructure. 
School vouchers is a panacea that will only benefit a small percentage 
of our kids, and therefore, should be discarded as a viable policy 
alternative once and for all.

             A Ruling Voids Use of Vouchers In Ohio Schools

                [From the New York Times, Dec. 12, 2000]

                            By Jodi Wilgoren

       A Federal Appeals court declared a Cleveland school voucher 
     program unconstitutional yesterday, upholding a lower court 
     ruling that the use of public money to send thousands of 
     children to parochial schools breaches the First Amendment's 
     separation of church and state.
       The 2-to-1 decision, which included a vitriolic exchange 
     among the judges, sets the stage for a United States Supreme 
     Court showdown on one of the most contentious issues in 
     education politics today. It comes a month after voters in 
     Michigan and California roundly rejected school voucher 
     programs in ballot initiatives and is the most significant 
     legal decision yet on the question.
       ``We certainly hope everyone will get the message,'' said 
     Robert H. Chanin, general counsel for the National Education 
     Association, the nation's largest teacher's union, who argued 
     the case for a group of parents and teachers challenging the 
     vouchers. ``The message is, let's focus on improving the 
     public schools and stop playing around with vouchers as a 
     panacea.''
       In the ruling, Judge Eric L. Clay of the United States 
     Court of Appeals for the Sixth Circuit said the Cleveland 
     program did not present parents with a real set of options, 
     because few nonreligious private schools and no suburban 
     public schools had opened their doors. In 1999-2000, 96 
     percent of the 3,761 voucher students attended sectarian 
     schools, receiving up to $2,500 each to offset tuition.
       ``This scheme involves the grant of state aid directly and 
     predominantly to the coffers of private, religious
       ``There is no neutral aid when that aid principally flows 
     to religious institutions,'' the decision said, ``nor is 
     there truly `private choice' when the available choices 
     resulting from the program are predominantly religious.''
       Voucher supporters promised to appeal the ruling and 
     expressed confidence about their chances at the high court, 
     which has hinted at its openness to vouchers in recent years 
     with several 5-to-4 decisions allowing public money to be 
     used in parochial schools for textbooks, transportation and 
     teachers' aides.

[[Page 27273]]

       ``The day of reckoning is drawing closer,'' said Clint 
     Bolick, a lawyer for the Washington-based Institute for 
     Justice, which helped defend the voucher program. ``This 
     decision is a disaster for every schoolchild in America, but 
     it will be short-lived.''
       Students in the Cleveland program will probably be allowed 
     to finish the year at their current schools, lawyers for both 
     sides said. The Supreme Court has already intervened once in 
     the case, to allow voucher recipients to remain in parochial 
     schools pending the appeal, and an extension of that order is 
     expected.
       ``Whatever I have to do to keep her there, I'm going to do 
     that,'' said Roberta Kitchen, guardian for Toshika Bacon, who 
     uses a voucher to attend a Christian school.
       ``If it means borrowing, second job, go further into debt, 
     having to juggle my bills around,'' Ms. Kitchen said, 
     ``whatever I need to come up with that tuition.''
       Cleveland's voucher program, which gives precedence to low-
     income families, has been in litigation since it began in 
     1995 and has long been seen by both sides as the likely test 
     case bound for the Supreme Court. The justices have already 
     declined to review the nation's oldest and largest voucher 
     program, which began in Milwaukee in 1990 and was upheld by 
     the State Supreme Court in 1998. In Florida, the legal battle 
     over a statewide voucher program has focused so far on the 
     mandate to provide public education, not the church-state 
     question; a state appellate judge's ruling that the program 
     is acceptable is being appealed to the Florida Supreme Court.
       Apart from the constitutional disputes, the battle over 
     vouchers concerns the very definition of the public-school 
     system. A coalition of corporate philanthropists and 
     impoverished parents back vouchers as a free-market solution 
     to what they see as the failure of inner-city schools; the 
     teachers' unions have spent millions of dollars fighting 
     vouchers, which they and many educators believe would drain 
     resources from the schools that most need them.
       Vouchers were a main point of fissure in the education 
     debate of this fall's presidential campaign. Vice President 
     Al Gore vehemently opposes the use of any public money for 
     private schools, while Gov. George W. Bush of Texas wants to 
     give children in consistently failing schools $1,500 in 
     federal money to use however they like, including for 
     tuition.
       Yesterday's ruling in the Cleveland case, Simmons-Harris v. 
     Zelman, comes a year after a lower-court federal judge struck 
     down the program, saying it had ``the effect of advancing 
     religion through government-sponsored religious 
     indoctrination.''
       Judges Clay and Siler acknowledged in their opinion that 
     vouchers had been ``the subject of intense political and 
     public commentary, discussion and attention in recent years'' 
     but said they could not take part in the ``academic discourse 
     on practical solutions to the problem of failing schools.''
       Instead, they based their opinion largely on a 1973 Supreme 
     Court ruling in a New York case, Committee for Public 
     Education v. Nyquist, which rejected a tuition-reimbursement 
     program for parents of private school students. Yesterday's 
     ruling also pays close attention to the concurring opinion of 
     Justice Sandra Day O'Connor--widely seen as the swing vote on 
     vouchers--in a case from last term, Mitchell v. Helms, which 
     upheld the purchase of computers for parochial schools.
       ``The voucher program at issue constitutes the type of 
     `direct monetary subsidies to religious institutions' that 
     Justice O'Connor found impermissible,'' the Sixth Circuit 
     judges said. ``To approve this program would approve the 
     actual diversion of government aid to religious institutions 
     in endorsement of religious education, something `in tension' 
     with the precedents of the Supreme Court.''
       Judge James L. Ryan, appointed to the bench by President 
     Ronald Reagan in 1985, submitted a sharp dissent accusing his 
     fellow judges of ``nativist bigotry'' and denouncing the 
     quality of Cleveland's public schools. He argued that the 
     Supreme Court's rulings since the Nyquist case suggested a 
     shift in thinking on subsidies to private and parochial 
     schools and called the majority opinion ``absurd'' and 
     ``meritless.''
       ``In striking down this statute today, the majority 
     perpetuates the long history of lower federal court hostility 
     to educational choice,'' Judge Ryan wrote, going on to call 
     the ruling ``an exercise in raw judicial power having no 
     basis in the First Amendment or in the Supreme Court's 
     Establishment Clause jurisprudence.''
       Judge Ryan's harsh words prompted the same from his 
     colleagues. The majority complained of ``hyperbole'' and 
     ``gratuitous insults,'' saying ``it is the dissent and its 
     rhetoric which should not be taken seriously.''
       Gov. Bob Taft of Ohio, a Republican, declined to comment on 
     the case, other than to express disappointment, as did the 
     state's top education official, Susan Tave Zelman, who is 
     named as a defendant. Neither Cleveland's mayor, Michael R. 
     White, nor Barbara Byrd-Bennett, the chief executive officer 
     of the Cleveland Municipal School District, could be reached 
     for comment.
       Betty D. Montgomery, Ohio's attorney general, released a 
     statement saying, ``The voucher pilot program empowers low-
     income Cleveland-area families whose children are trapped in 
     a failing public school system.''
       As thousands of Cleveland families wondered how the 
     decision might affect them, the combatants in the nation's 
     voucher wars unleashed a sheaf of faxes celebrating or 
     criticizing the latest legal salvo.
       ``This is a great early Christmas present for America's 
     public schools and our constitutional principles,'' Barry W. 
     Lynn, executive director of Americans United for Separation 
     of Church and State, said in a press release.
       The Center for Education Reform, a conservative group in 
     Washington, described the Cleveland program as a ``lifeline 
     for thousands of disadvantaged young people.''
       ``We've always believed and continue to believe that 
     parents are a child's first teacher,'' said the group's 
     president, Jeanne Allen. ``And as such they and only they 
     should decide where and how their children are educated.''
       On the other side was Ralph G. Neas, president of People 
     for the American Way Foundation, who hailed the ruling as ``a 
     victory for the First Amendment and a victory for public 
     education.''
       But it was a defeat for Mr. Bolick of the Institute for 
     Justice. ``The same Constitution that guarantees educational 
     opportunities has been turned on its head to subvert them,'' 
     he said.

     

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