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WASHINGTON (November 30, 2001) -- The Ohio Scholarship and Tutorial program is "both educationally and constitutionally sound," said the United States Conference of Catholic Bishops. The USCCB filed an amicus brief urging the U.S. Supreme Court to overturn a lower court ruling against the program, which helps low income students choose the kind of education they want.
"The decision (of the lower court) represents an attack upon the Ohio legislature's legitimate...attempts to resolve a wholly secular concern: relief for low income citizens whose children attended schools in the Cleveland school district," the USCCB brief stated.
"This case also represents an attack on the private decision-making of thousands of Cleveland parents seeking the best possible education for their children. Without a scintilla of record evidence that the legislation's primary effect was to advance religion, the (lower) court indulged in the same sort of 'presumptions' and affirmative 'hostility' to religion that this Court has explicitly rejected over the last 25 years."
"When a public educational program is designed to, and does, allocate aid on the basis of neutral, secular criteria that neither favor nor disfavor religion, and makes that aid available to all potential beneficiaries on a nondiscriminatory basis, then that program does not contravene the Establishment Clause," the brief asserted. "Here there is no evidence that, in design or in actual practice, the Ohio scholarship program is anything more. It is a vital social benefit program in which religious schools may constitutionally participate while advancing the common good."
The USCCB brief was filed in the case of Zelman v. Simmons-Harris now before the Supreme Court of the United States. The high court will decide sometime next year whether Ohio's program violates the Establishment Clause of the Constitution by permitting tax-funded vouchers to be used at religious schools, as well as at public and other private schools. The United States Court of Appeals for the Sixth Circuit said the program was unconstitutional because a majority of schools attended by students using the vouchers are conducted under religious auspices. That a majority of Ohio parents whose children are eligible for state vouchers use them to pay tuition at religious schools does not make the program unconstitutional, according to the USCCB brief.
The Ohio Scholarship and Tutorial Program was designed to offer financial assistance to low income families and their children. The program applies to any state school district directly supervised and operated by the State Superintendent of Public Instruction, instead of local authority. Over 60% of the children receiving scholarships are from families at or below the poverty line.
The program had been set up so that students could use the educational aid in any one of several different ways--at a public school in an adjacent school district that had decided to participate in the program; at any area private school that had registered to participate; or through special tutorial help while attending the Cleveland public schools.
The maximum amount of aid that the state will provide to a child attending a private school is $2250, and is capped at 90% of the tuition the school charges to low income children. Children can also decide not to take scholarships from the program, but rather to attend newly-created "Community Schools," which have no religious affiliation and are governed by the Cleveland School Board, in which case the state pays that school approximately $4000 per child.
"The Establishment Clause is not violated when a public program, neutral with respect to religion, allows individual parents to choose from religious schools among the available educational options," the brief said.
"Nothing in the structure or content of the Ohio scholarship program shows that it does anything other than provide benefits neutrally to a broad class of citizens, defined without reference to religion," the brief continued. "The aid is absolutely neutral and its amount is no different depending upon whether the recipient's child attends a religious school or a nonreligious school. It benefits a broad class of citizens, literally thousands of the least well-off families in Cleveland. Beneficiaries are defined only by their family's income level, their residence in the Cleveland school district, and their desire to either obtain tutorial benefits and remain in the public schools, or attend another school whether nonreligious and private or any of a variety of religious private schools representing a broad spectrum of denominations ."
The brief asserted that the Sixth Circuit erred "when it presumed the worst about why religious schools decided to participate in the scholarship program, and the motives of teachers and parents, to support its conclusion that the 'primary effect' of the program is governmental support of religion and religious indoctrination."
"Catholic schools participate because of an abiding commitment to help low income, and especially minority and special needs, children, and because of a belief in the tremendous importance of primary and secondary education," the brief stated.
"Parents choose a school based on their conclusion that the selected school offers the best available education for their children, and they can frequently do so only because of the help the Ohio scholarship program provides. There is no spectre of advancement of religion to be apprehended here. This beneficial and religiously-neutral state program aids disadvantaged families to educate their children in a program in which religious schools, among others, extend themselves to those most in need."
The brief was authored by General Counsel Mark E. Chopko, Associate General Counsel John A. Liekweg, and Solicitor Jeffrey Hunter Moon. The text of the brief is available on the Conference Web site, USCCB.ORG.