In what is being hailed as the first step to a school voucher program, the Senate Tuesday stamped its approval on a massive education bill that allows students in underperforming schools to cash in on federal funding to hire private tutors or pay for transportation to better-performing public or charter schools.

The bill, which passed the House last week, is now set for President Bush's signature.

The $26.5 billion Elementary and Secondary Education bill does not allow federal funding to be used for private schools — a provision stripped from the House bill after protests from teachers unions and Democrats — but it does give the ultimatum to schools to shape up or lose the cash along with the student body.

School voucher advocates call it the first step toward equalizing access for all students.

"Middle- and upper-income Americans have always had the ability to choose their children's schools, either through choice of residence or private education. Only in the sense that it is being extended to low-income families is school choice 'new,'" said Kaleem Caire, president and CEO of the Black Alliance for Educational Options.

Caire, who appeared on Capitol Hill with Marquette University Professor Howard Fuller to present their recently published report, Ten Myths about School Choice, said the next step is to allow full voucher programs so students can attend private schools.

But stiff opposition to vouchers remains.  On Friday, the People For the American Way Foundation filed suit in the U.S. Supreme Court, arguing that the city of Cleveland, Ohio's school voucher program is unconstitutional because it endorses religion by making "direct unrestricted government payments to the participating sectarian private schools providing a religious education."

PFAWF says 82 percent of the private schools participating in the Cleveland voucher program are religious institutions, which means those schools could use federal funds to purchase bibles, icons or other religious materials.

They have a challenge ahead of them.  In 1998, the high court upheld a Wisconsin Supreme Court ruling that said extending the Milwaukee Parental School Choice Program to religious schools was constitutional. 

The issue is being tested in several other venues right now and will likely come before the court again, experts said.

Caire, who joined Rep. John Boehner, R-Ohio, chairman of the House Education and Workforce Committee, at a press conference sponsored by the National Center for Policy Analysis Tuesday, did not address the religious arguments on their face. But he said denying the opportunity for low-income students — who are disproportionately Black — to attend private schools is discriminatory.

Boehner, author of the education bill, agreed that equal access is denied to low-income students, but conceded that full education reform has not arrived yet.

"Parents in low-income communities will immediately have new choices and new options for their children's education, and these options will make a difference for many," Boehner said. "But the drive for equal educational opportunity in America must continue until all parents of all incomes can choose the best available school for their children — public, private or otherwise."

ESEA also demands new accountability standards for public schools based on student testing. Schools that demonstrate high performance will be given greater flexibility on how they spend federal education dollars.