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Federal ruling strikes down Cleveland's voucher program

By MARILYN H. KARFELD
The Cleveland Jewish News
December 14, 2000

CLEVELAND—Most major Jewish organizations hailed this week's federal appeals court decision striking down the Cleveland school voucher program as unconstitutional. But some of their members are not cheering the court action as loudly as they once did.

The three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, sitting in Cincinnati, ruled 2-1 that Cleveland's school vouchers principally went to religious institutions, thus violating the Constitution's separation of church and state. As states around the country debate and establish controversial voucher programs, the Ohio ruling may very likely become the test case reviewed by the U.S. Supreme Court.

Orthodox Jews, who typically send their children to Jewish day schools, have long supported publicly financed tuition vouchers. But Conservative and Reform Jews, historic opponents of state aid to parochial schools, have begun enrolling their own children in Jewish day schools in growing numbers. Now they're re-examining their earlier anti-voucher stance.

"The Jewish community doesn't look at the church-state issue the same way it used to," says Joel Ratner, Cleveland-based regional director of the Anti-Defamation League, which filed an amicus curiae brief opposing the voucher program. "Vouchers is the issue where that change is most felt.

Clearly the consensus that existed in previous decades has broken down." While proponents say the educational choice provided by the five-year-old Cleveland voucher program is a way for low-income children to escape failing public inner-city schools, the judges ruled parents had no real options.

No suburban and few non-religious schools accept the vouchers. About 96% of the 3,700 participating students use the state aid of up to $2,5000 to attend mostly Catholic parochial schools.

"Accordingly, we hold that ... the voucher program has the primary effect of advancing religion, and that it constitutes an endorsement of religion and sectarian education in violation of the Establishment Clause," wrote Judge Eric Clay.

The hostile, bitter language exchanged by the dissenting and majority judges in the decision astonished Cleveland attorney Harry Brown, president of Agudath Israel of Cleveland and vice-president of the national Orthodox organization, which filed an amicus curiae brief seeking to uphold the voucher program. "They just don't do that," he says.

While its members may no longer all agree, Jewish organizations reacted to the decision along historic lines, with Orthodox institutions deploring the ruling, the remainder applauding it.

Today's ruling "is a decisive rebuttal to those who believe that vouchers are compatible with religious liberty," said American Jewish Congress Executive Director Phil Baum.

"The court's decision bolsters those who oppose efforts to erode the cherished constitutional principle of church-state separation with respect to public funding of religious schools," said Bruce M. Ramer, president of the American Jewish Committee.

"Those who are committed to do all in their power to preserve the public school monopoly and to prevent parents from having meaningful educational options will surely have reason to be pleased with the outcome of this case," said David Zwiebel, Agudath Israel of America s executive vice-president for governmental and public affairs.

The entire way Jews view education has changed and that's been reflected in the voucher and related church-state separation issues, says Joyce Garver Keller, a Columbus-based lobbyist for Ohio Jewish Communities.

No longer new immigrants seeing public school education as a way to break down barriers and grab a piece of the American dream, Jews today are more concerned that their children may be abandoning their heritage, Garver Keller says.

"Under a different set of circumstances, Jews (saw) public tax money going to pay for religious education that was Christian," she says. "There was a feeling it wasn't appropriate for public tax dollars to be spent to promote religion and someone else's religion. The question today is different. Tax money for religious schools today (some say) is not to promote religion but to allow Jews to go to Jewish schools."

Jews are also concerned with the deteriorating quality of urban schools and the unfair plight of poor children, whose parents can t afford private school, Garver Keller says.

These Jews see vouchers as a way to deliver quality education.

"There's a definite change in how the Jewish community views vouchers," says attorney Brown. The Jewish view towards vouchers has changed along with the recognition of the problem of Jewish assimilation and the growth of day schools to address that concern, he adds. Supreme Court decisions have held that public dollars can pay for therapy and remedial services and most recently, computers for religious schools.

"There s ample room within the constitutional separation of church and state to permit vouchers," Brown says. "Programs need to be carefully designed...so that they don t further religion."

The Jewish Community Federation of Cleveland has no official position on school vouchers, although it did vote in 1995 to oppose Cleveland s tuition-assistance plan as unconstitutional and the wrong way to improve education.

Although the Jewish Council for Public Affairs, the umbrella organization of community relations committees (CRC) of local Jewish federations, remains adamantly opposed to vouchers, the Cleveland CRC, which has studied the issues for years, has not taken such an unequivocable stand.

A 1998 "voucher think tank" with "a variety of opinions and perspectives expressed, " led to no consensus, says Cleveland CRC chair Amy Morgenstern.

"We believe we can be a strong proponent of Jewish day schools and Jewish continuity efforts and quality public education," she says, adding that a new committee is investigating the broader education issues, not just vouchers.

Contrary to what many think, America has not always adhered to strict separation of church and state, points out Chris Link, executive director of the American Civil Liberties Union of Ohio. The Supreme Court decision outlawing prayer in public schools was issued in 1963.

"It was a landmark because it was one of the first to so clearly delineate public and religious life," Link says. She voiced a pleased but cautious view of the 2-1 appeals court decision which may still be overturned.

Rabbi Pinchos Hecht, head of Fuchs Mizrachi School (Orthodox), admits he has mixed feelings about vouchers. "I m concerned about the quality of the public school system and the potential damage (of vouchers) to a system which serves the greater good of the country," he says.

On the other hand, "You can t keep funding something that doesn t work for many people." Hecht favors the limited Cleveland voucher program because it helps the poor trapped in a system where the public schools aren t delivering. But he has reservations about vouchers for everyone.

"Jewish education needs to be the province of the Jewish community," Hecht says. "Surely (day schools) shouldn t be reimbursed for the Judaism content, that is not society s burden."

Separation of church and state, he adds, "has served us well. I can t imagine living in a country and having the freedoms I have under a different regime. I m a very strong proponent of separation of church and state and I don t want the line crossed."

Cleveland civil rights attorney Kenneth D. Myers, who has written about the Cleveland voucher program for Time magazine, thinks the "drift in Jewish opinion on vouchers is related to the viability of public schools, rather than to the church-state issue. The only reason that anybody perceives a need for vouchers is because of failures of public schools. The question of who pays is somewhat secondary."

But who pays is the constitutional issue.

No Jewish children or Jewish day schools participate in the Cleveland voucher program. But Yossi Prager, executive director of the Avi Chai Foundation, North America, which funds scholarships to Jewish parochial schools of all denominations, says voucher programs can allow more families to send their children to Jewish day schools.

In Milwaukee, school vouchers last year paid the tuition of 77 of the 168 students at Yeshiva Elementary School, which received $375,000 from the state of Wisconsin. The Wisconsin Supreme Court upheld the program which pays for needy children to attend private and parochial schools and the Supreme Court declined to hear appeals.

© The Cleveland Jewish News, 2000. May not be reproduced without written permission
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