October 1999 Church & State | People & Events

Cleveland Vouchers Likely Unconstitutional, Says Federal Court

Voucher aid to religious schools in Ohio probably violates the constitutional separation of church and state, a federal court held Aug. 24.

In a major victory for Americans United, U.S. District Judge Solomon Oliver Jr. analyzed the Ohio Pilot Scholarship Program in a 28-page opinion and found that it raises serious church-state concerns. Oliver issued an order blocking continued operation of the plan, but he later stayed it when voucher parents complained that the ruling, which came just days before school started, left them too little time to make other arrangements.

Oliver made it clear, however, that he believes the program violates the U.S. Constitution. In his decision, the judge wrote that voucher funding of religious schools "has the primary effect of advancing religion" and said the plaintiffs have a good chance of prevailing when the matter comes before his court for a full hearing later this year.

But voucher parents complained that the ruling had left them scrambling to find a classroom for their children. Local and national newspapers and television networks ran a number of sympathetic stories portraying the voucher parents as victims. In the face of intense pressure, Oliver agreed to stay the injunction. However, he stayed it for one semester only and ruled that no new students could enter the voucher program.

Americans United is assisting the parent plaintiffs in the case, arguing that vouchers are unconstitutional. AU attorneys said Judge Oliver's opinion is a clear sign that he believes the voucher plan is unconstitutional and will strike it down later. The stay, they said, is little more than a temporary reprieve for vouchers.

"This is the second federal court to rule against vouchers in the past three months," said Americans United Executive Director Barry W. Lynn. "Voucher supporters need to realize that the law is not on their side. Taxpayers cannot be required to support houses of worship or their schools."

Ohio's voucher plan was originally passed in 1995. It gives parents $2,500 vouchers to attend private, sectarian or other public schools in Cleveland. (No public schools have agreed to enter the program.) Americans United and its allies in public education first filed suit against the program in state court, but earlier this year the Ohio Supreme Court ruled that the plan did not violate the separation of church and state. The organizations then decided to file a lawsuit in federal court.

In his opinion, Judge Oliver analyzed the line of U.S. Supreme Court cases dealing with parochial school aid and found that, since the key cases barring direct taxpayer aid to religious schools have not been overturned, they are still binding.

In other news about tax aid to church schools, Florida's voucher program is under way, although it remains under court challenge. The program went into effect Aug. 16, when 58 students in Pensacola began attending private schools with taxpayer funds. Only five private schools have agreed to participate in the program--four are Roman Catholic and one is a Montessori school.

The Florida plan, championed by Republican Gov. Jeb Bush, ranks public school districts across the state and gives vouchers to students in schools deemed "failing." (So far, only a few districts have received failing grades.) The program is being challenged in state court by Americans United, the National Association for the Advancement of Colored People, the American Civil Liberties Union and the Anti-Defamation League.

N.C. Public School Cancels Religious Rally After AU Protest

Officials at a North Carolina high school agreed to cancel an appearance by a fundamentalist Christian evangelist after receiving a complaint from Americans United.

Greg B. Williams, principal of New Bern High School, sent letters last April to ministers of local churches advising them that a Christian speaker, R.V. Brown, would appear at the high school in October during school hours at an assembly for students and staff.

Williams invited the religious leaders to offer financial support and "prayer support" for the event. The principal's letter, sent on school letterhead, opens with the phrase "Greetings; in the name of the Lord!...This is a time of revival and thanksgiving for the works that the Lord has done. One area that is in need of both is our area schools."

Continues the letter, "Schools serves [sic] as the place where adolescents receive many of the morals and beliefs that will affect the way they live their lives. Many students walk through our doors and never know the love and goodness of our Savior, Jesus Christ. Many never see the impact of good, solid Christian rolemodels [sic]. The lack of Christian involvement in their lives, [sic] leads to behavior problems, bad attitudes that gets [sic] in the way of education for students and teachers."

When Americans United's East Carolina Chapter got wind of the letter, it reported the incident to the national AU office and requested help. On Aug. 4, Americans United Litigation Counsel Ayesha Khan wrote to William Rivenbark, superintendent of the Craven County Schools, and Carrs Ipock, chairman of the county school board, and warned them that school sponsorship of a religious assembly is unconstitutional.

"The Principal's letter, as well as the scheduled events, constitute gross violations of constitutional principles," wrote Khan. "The law requires all units of government to refrain from action that endorses, favors or promotes religion. This concern is heightened in the context of the public school because students are legally required to attend school and are thus a 'captive audience,' and because schoolchildren are considerably more impressionable than adults."

School officials subsequently announced that Brown's appearance had been cancelled.

In other news about religion in public schools:

 A small, rural school district in central California dropped its plan to use textbooks rife with fundamentalist Christian dogma after the American Civil Liberties Union threatened to sue.

The controversial books were provided to the Belridge Elementary School in McKittrick by an anonymous donor. Principal Steven Wentland, who critics say is on a religious crusade to infuse the school with a narrow brand of sectarian beliefs, agreed to use them at the school, which serves children in grades kindergarten through eighth grade.

Parent Veronica Van Ry complained and sought legal backing from the ACLU, which filed suit on Aug. 24. Wentland originally planned to contest the lawsuit and lined up legal backing from the Pacific Justice Institute, a California-based Religious Right group, but in mid October he abruptly announced that the school would drop the books.

Wentland told The Washington Post that he would return "every last flash card" to A Beka Books, Inc., publisher of the material. "We'll pull them out."

A Beka, based in Pensacola, Fla., produces books and other materials that are used in many fundamentalist Christian schools and are also popular among fundamentalist home schoolers. The Post reported that Van Ry, a retired Methodist minister, sought legal action after she examined the textbooks and found them laced with fundamentalist dogma.

A Beka describes itself as "unashamedly Christian and traditional in its approach." A history book published by the company asserts that "God allowed America to remain hidden from Europe until Columbus discovered it" and also states, "The Renaissance revived the classical literature and scientific ideas of ancient Greece and Rome and inspired beautiful art, but it also promoted pagan ideas and immorality."

The book goes on to state that ancestors of Native Americans came to North America after Noah's flood when they were cast out of the Tower of Babel. It states that "the early American Indians, like most other people, had forsaken the things that their ancestors knew about God. Their stories about the Creation and the Flood were not accurate." Another book calls Mormonism, the Jehovah's Witness faith and Christian Science "cults" and disparages non-Christian faiths such as Islam. One of the history books is titled America: Land I Love in Christian Perspective.

 A Santa Fe, Texas, high school student offered a prayer before a football game Sept. 3 after a federal judge issued a temporary restraining order forbidding school officials from punishing any student for praying. The U.S. 5th Circuit Court of Appeals ruled last year that group prayers before football games are unconstitutional. After that ruling, Superintendent Richard Ownby warned that any student who violated the court order would be punished.

Seventeen-year-old Marian Lynn Ward filed suit, saying the school was violating her free-speech rights. U.S. District Judge Sim Lake agreed, and issued an order, effective for 10 days, forbidding the school from punishing any student who led prayer. By forbidding prayers, Lake wrote, the school had "clearly preferred atheism over any religious faith."

 Advocates of school-sponsored prayer in California are working to collect 600,000 signatures on petitions to win a spot on the November 2000 ballot for an initiative called the "Prayer and Pledge of Allegiance in Public Schools" measure. The initiative would amend the state constitution to require public schools to reserve at least one minute at the beginning of the day for "voluntary" prayer and would also mandate that the pledge be recited daily.

The measure's primary backer is Carl Towe, a political consultant. Towe insists that the project is necessary because some public schools have been denying students the right to prayer. "This has nothing to do with the separation of church and state," he said. "This is more [about] religious freedom and discrimination."

Observers note that even if the amendment gets enough signatures and wins a majority vote, it would still face a court challenge and would likely be found unconstitutional. The U.S. Supreme Court declared mandatory prayer in public schools unconstitutional in 1962.

 School prayer boosters are active in New Jersey, too, where Bea Cerkez, former mayor of Deptford, is circulating petitions to change New Jersey law to allow vocal, mandatory prayer in schools. Cerkez, who claims to have collected 10,000 signatures so far, seems undaunted that her proposal is blatantly unconstitutional. "I don't agree with the [school prayer decision] as it reads," she told the Philadelphia Inquirer. "[Required prayer] should never have been taken out of schools, and the thousands of us will be able to put it back in."

A handful of state legislators have endorsed Cerkez's crusade.

Bush Proposes Vouchers For Public Schools Deemed To Be Failing

Republican Party presidential front-runner George W. Bush has proposed cutting federal aid to "failing" public schools and using the funds to pay for vouchers at religious and other private schools.

Bush, delivering a "back-to-school" address before a group of Hispanic business leaders in Los Angeles Sept. 2, blasted federal education policy for allowing public schools to "cheat poor children." He vowed to require states to test disadvantaged students and strip federal money from poor-performing schools. Those funds should then be parceled out as vouchers, he said.

"Federal money will no longer flow to failure," Bush said.

Although Bush never used the term "vouchers" during his speech, it was clear that's what he was advocating. Under his plan, every public school that receives Title I money to educate disadvantaged children would be required to test the students each year. If a school showed three years of no progress, the Title I money would be matched with other federal funds and distributed by the states through "education accounts" worth $1,500 each. Bush said parents could then use the money to place the child in any private or public school that would accept them.

Bush, who is currently serving his second term as governor of Texas, tried but failed to get a voucher program in effect in that state.

Education Secretary Richard W. Riley criticized the Bush plan, saying it would siphon money away from schools that need it the most. "No matter how you dress it up, how long you delay it, or what you call it, a voucher is a voucher," said Riley. "Vouchers undermine our public schools, which educate about 90 percent of our children."

During the speech, Bush also proposed turning Head Start classes over to churches and other private groups if the students participating in the program at public schools don't show academic improvement. (Head Start is a federal program that began in 1965. It is designed to prepare disadvantaged children for school.)

Texas Court Erred In Declaring Gay Church Not 'Main Line,' Says AU

A Texas judge violated the First Amendment when he ruled that a divorced woman could not take her child to a predominantly gay Christian church because the congregation is not "main line," Americans United argues in a recently filed friend-of-the-court brief.

In the brief, which AU filed with three other organizations, Americans United argues that the 78th District Court Judge Keith Nelson of Wichita County erred when he ordered the mother not to take her child to services at the Metropolitan Community Church. The brief was filed before the Texas Court of Appeals, Second District.

"A court-imposed ranking of religions and determination as to which are sufficiently 'main line,' or orthodox, constitutes impermissible state assessment of ecclesiastical matters and partiality concerning religious denominations," observes the brief. "The trial court's order also violates the mother's free exercise rights because the court made a determination concerning the mother's visitation rights based on an evaluation of her religious beliefs and the church she attends."

The case centers on a divorce involving a Christian mother and a Jewish father. In the decree, both parents agreed to provide religious training for their 5-year-old daughter. When the mother began taking her daughter to services at the MCC congregation in Wichita Falls, the father objected and asked Judge Nelson to intervene.

Nelson ruled that only "main line churches would be utilized by the parties for the religious training of the child.." The court listed a number of houses of worship that would qualify as "main line," including Methodist, Baptist, Episcopalian and Catholic congregations as well as Jewish synagogues but added "the Metropolitan Community Church does not fall within the category."

The MCC was founded by the Rev. Troy Perry in Los Angeles in 1968. The denomination has over 300 churches worldwide that serve predominantly gay congregations.

Perry called the judge's decision shocking, adding, "For the first time in the 30-year history of the [denomination], a judge has overstepped boundaries provided by the U.S. Constitution and has ruled that [the church] is not a suitable church for our children. This is appalling and patently illegal. The First Amendment to the U.S. Constitution specifically requires government to stay out of religion."

Americans United Executive Director Barry W. Lynn agreed, saying that courts have no business deciding which churches qualify as "main line" and which do not.

"It is not the job of any branch of government to rank denominations in a type of 'Top Ten' list, with those failing to make the cut being assigned second-class status," said Lynn. "In the eyes of the government, all religions should be considered equal."

In addition to Americans United, other groups filing the brief in the case include the American Civil Liberties Union, the ACLU of Texas, People For the American Way and the Southern Poverty Law Center.

A second joint brief has been filed by the American Jewish Congress, the National Council of Churches, the American Friends Service Committee and the Universal Fellowship of the Metropolitan Community Churches.

In their brief, the religious organizations argue that "a loosely worded divorce agreement has led to an improper judicial intrusion into the sacred domain of religious belief....[T]he decision of the court--arrogating to itself the power to decide what churches are theologically acceptable--is untenable." (In the Interest of WKG, a Minor Child)

Voucher Students Show No Academic Gains, Milwaukee Study Says

The university professor hired to evaluate Milwaukee's controversial voucher experiment says the program has failed to boost the academic performance of participating students and believes the state's expansion of the program to include religious schools was unwarranted.

John F. Witte, director of the Robert M. La Follette Institute of Public Affairs and a professor of political science at the University of Wisconsin, was the state's official evaluator of the voucher program from 1990 through 1995. He reported his findings in the October issue of Phi Delta Kappa magazine.

Witte wrote that parents with children in the program reported a high degree of satisfaction with the private schools. He also noted that several private schools in the city were saved from financial insolvency by voucher students.

But Witte reported that predictions by voucher boosters that students in the program would do better than their counterparts in the public schools had not come to pass. Comparing choice students with students attending voucher schools, he found that in the second year of the program, public school students did slightly better in reading, and in the third year, choice students did slightly better in math. But the differences were not great in either case.

Concluded Witte, "Thus there was no pattern of superiority of choice students over [public school] students or vice versa. And these results held up with a range of more complex and diverse statistical models."

Witte debunked a study released by scholars Jay Greene, Paul Peterson and Jiangtao Du that claims to have found Milwaukee choice students far outperforming public school students. He noted that Peterson, a Harvard University professor, is hardly an objective observer: Peterson released the study just two days before he testified in a court trial in favor of vouchers in Wisconsin. (Peterson also once compared voucher opponents to Darth Vader, the villain of the "Star Wars" movies.)

Wrote Witte of Peterson's data, "[T]he problems with this result are so numerous that I don't think anyone really believes it. At least, no one should."

Witte concluded that, given the failure of the choice program to boost academic performance of participating students, it should not have been expanded to included sectarian schools. "The irony is," he wrote, "that there is absolutely no evidence in my or any other study that would justify this expansion of the program."

In other news about vouchers:

 A recently released report charges that religious schools participating in Milwaukee's voucher plan are violating the law by screening students, charging parents illegal admissions fees and requiring students to take part in religious activities.

The voucher law requires private schools to admit students on a random basis, not impose additional fees above the voucher and not require attendance at religious events. A study by People For the American Way and the National Association for the Advancement of Colored People found that a number of Roman Catholic and Lutheran schools were violating all or some of these provisions.

PFAW and the NAACP sent their findings to Wisconsin Superintendent of Public Instruction John T. Benson and asked for a formal state investigation.

 A recently released Phi Delta Kappa/Gallup poll indicates that the overwhelming majority of Americans favor fixing troubled public schools rather than adopting voucher plans.

The poll, conducted last summer, found that 70 percent of respondents favored government improvement of public schools, while 28 percent backed vouchers.

When people were asked directly about vouchers, the results were more mixed. Forty-seven percent of respondents said they favor the idea, while 48 percent were opposed. Asked if they support or oppose allowing parents to send their children to any public, private or church-related school if the government paid all or part of the tuition, 51 percent said yes, while 47 percent said no.