Up against the wall

It is no great surprise that U.S. District Judge Solomon Oliver found that Cleveland’s taxpayer-financed voucher program for private schools might violate the Constitution’s establishment clause. The wall between church and state is moveable and the courts — federal and state — have a long history of remodeling.

What must be frustrating for voucher proponents and opponents alike is the timing of Judge Oliver’s injunction. By halting a four-year-old program just 18 hours before the start of a new school year, some 3,800 Cleveland students and their parents are scrambling for either public-school placements or private-school tuition money.

Children are always hurt when adults squabble; it’s rare that so many children are hurt by one squabble. The suit challenging Ohio’s voucher law was brought nearly two months ago. Whether Judge Oliver’s timing was merely unfortunate or, as his sternest critics allege, malicious, the effect is the same — it has injected into this long-running debate on an important issue a hefty measure of anger that can only be counterproductive.

It is a debate in which both sides make good arguments. Voucher opponents are absolutely correct that universal education for all kids — including the poor, the disabled and the otherwise disadvantaged — provided by public schools is vital to our society. Voucher proponents also are correct that competition stirs improvement and that matching the student to the right school is an important element of educational success. Surely, it seems, this mutual concern for children provides ample common ground for a calm, peaceful resolution.

Not as long as that church-and-state wall blocks the way, which it will until it is fixed in one place.

The Ohio law that created the Cleveland program is on hold pending a trial in which Judge Oliver says he is likely to find a constitutional violation because many of the 56 private schools receiving public funds are religion-affiliated. Meanwhile, Milwaukee’s similar voucher program, including payments to religion-affiliated schools, is entering its ninth year, a succession of courts have upheld Wisconsin’s similar voucher law and the U.S. Supreme Court has declined to review those rulings. Also meanwhile and much closer to home, Maine’s law banning publicly funded tuition payments to religious schools has withstood court challenges.

If their intent was simply to prevent government intrusion into religious matters, the framers of the Constitution probably thought they had made themselves perfectly clear. In a series of decisions dating back to the ’80s, the modern Supreme Court has not objected to public aid to religious schools, as long as the money got to the school through parental choice and not by direct payment from the state or municipality.

The High Court, however, has never directly addressed the constitutionality of a voucher law. The conflicting views coming from the federal district courts, and the disruption this most recent ruling has caused 3,800 Cleveland kids, suggests — rather, shouts — that it is time for definitive ruling.