CINCINNATI (AP) -- Setting the stage for a possible Supreme Court ruling on church and state, a federal appeals court Monday declared Cleveland's school-voucher program unconstitutional because it uses tax money to send students to religious schools.
In a 2-1 ruling, the 6th U.S. Circuit Court of Appeals said the program appears designed to favor religious schools and thereby violates the constitutional separation of church and state.
"To approve this program would approve the actual diversion of government aid to religious institutions in endorsement of religious education, something `in tension' with the precedents of the Supreme Court," the panel said.
Both sides predicted the dispute will go to the high court, which has passed up opportunities to consider challenges to the constitutionality of providing public aid to families whose children attend religious or other private schools.
The high court last year let stand a voucher program that includes religious schools in Milwaukee, and did not take up a challenge to a 1999 federal appeals court ruling allowing Maine to exclude religious schools from a state program subsidizing children attending private schools.
Clint Bolick of the Institute for Justice, a Washington organization that argued in support of the voucher program, said the Supreme Court should hear the case soon to protect the Cleveland participants.
"This is the test case that everyone's been waiting for," he said. "I can't imagine that the Supreme Court would allow 4,000 kids to be just yanked out of the only good schools they've ever attended."
Attorney General Betty Montgomery said no immediate decision has been made on an appeal. She said the Ohio Supreme Court has upheld the state's argument that parents have a choice in how to use the vouchers and therefore there is no "constitutional entanglement."
The ruling did not halt the program.
Fights over tuition vouchers have been waged in many state legislatures, and in the courts of Arizona, Maine, New Jersey, Ohio, Pennsylvania and Vermont.
Cleveland's voucher program gives needy families with children in kindergarten through sixth grade up to $2,500 in tuition vouchers. The state authorized the program as an experiment in 1996.
Opponents said it is an illegal use of public money.
"This means that taxpayer money will not be diverted for use by private, religious schools," Barry Lynn, executive director of Americans United for Separation of Church and State, said of Monday's ruling. Lynn's organization is part of a coalition that sued to challenge the Cleveland program.
In Monday's ruling, Judges Eric Clay and Eugene Siler Jr. said the Cleveland program is unconstitutional because most of the 56 schools that receive voucher money have a religious affiliation.
Recipients cannot truly apply the aid to any school of their choice, including public schools, because no suburban Cleveland public schools have enrolled in the program, Clay wrote.
The dissenting judge, James Ryan, said program supporters presented evidence that aid is allocated on the basis of neutral, secular criteria.
"In striking down this statute today, the majority perpetuates the long history of lower federal court hostility to educational choice," Ryan wrote.
The ruling upheld a decision by U.S. District Judge Solomon Oliver Jr., who halted the program just before the start of the 1999-2000 school year. He later allowed students who had participated in the past to continue getting funds while the case was decided.
Bart Grandberry, whose son and daughter use vouchers to attend Lutheran Memorial School in Cleveland, said he hopes Monday's ruling will be appealed.
"I don't think it's fair. It's meant a lot for my kids to be in private school," Grandberry said. "They don't have distractions in the classrooms, as far as fights. And the teachers care."
