As vouchers are struck down in Cleveland, a lawyer for the plaintiffs shares his views

It's been one of the most contentious flashpoints in the national discussion over improving schools. And last week, the US Court of Appeals for the Sixth Circuit waded into the voucher debate, finding that Cleveland's program to give scholarships for private-school tuition was unconstitutional.

The court found that the program, which began in 1995 and provides up to $2,500 in aid for low-income students in failing schools, violated the First Amendment by having the "primary effect of advancing religion." Of the nearly 4,000 children enrolled, 96 percent attend sectarian schools.

"We find that when, as here, the government has established a program which does not permit private citizens to direct government aid freely as is their private choice, but which restricts their choice to a panoply of religious institutions and spaces with only a few alternative possibilities, then the Establishment Clause is violated," the court ruled.

It was a major victory for voucher opponents, as were the recent rejections of voucher initiatives in California and Michigan. But next year could draw the battle lines again, with a number of observers suggesting that the Cleveland case may head to the US Supreme Court. (For other views on vouchers, see page 13.)

One of the lawyers for the plaintiffs was Marvin Frankel of Kramer, Levin, Naftalis & Frankel in New York. If this decision holds up, he says, "vouchers for sectarian schools will be largely invalidated," though they could still be available for secular schools.

To Mr. Frankel, the past few decades have seen decidedly more-relaxed attitudes about the church-state divide. "The tendency ... has been to relax on the prohibitions of the Establishment Clause, and you've had a sharply divided court coming close to revising the prohibition against funding or other benefits to sectarian institutions," he says.

Frankel regrets what he sees as a decline in commitment to public education, despite the flurry of reform during the past decade.

"Apart from the Constitution, [that] commitment is diminished whenever you divert public money to other forms of education.... I think the days when it was a proud and strong boast that we educate our people in public [schools] - those views are not as robust as they used to be."

It's evidence, he argues, of weakened support in general for public institutions. "The cynicism about government sweeps more widely than public education. The feeling is that if you want to get it done well, you have to look to private enterprise," he says. "Public institutions are [seen as] a poor second choice. Schools pay part of that price."

But, he continues, "When you look to the market, you necessarily disadvantage poor people." Vouchers, he notes, are not a ticket out for the poor, as they fund only a fraction of what a first-rate private education costs.

His strong preference is to work within the system. "The idea of giving everyone a fair start from the opening gate is the way to promote equality of excellence in education. When you depart from that, you get something else."

(c) Copyright 2000. The Christian Science Publishing Society

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