Washington, D.C.-As the deadline approaches tomorrow [NOTE TO EDITOR: FRIDAY, NOVEMBER 9, 2001] for briefs involving the first school choice case to reach the U.S. Supreme Court, the Institute for Justice announced that its defense of the Cleveland school choice program will be backed by a broad and diverse array of supporters, including the United States, two Solicitors General from the Reagan and Clinton administrations, New York City Mayor Rudolph Giuliani and Milwaukee Mayor John Norquist, several governors and several dozen law professors. More than two dozen briefs will be filed supporting the Institute’s position that school choice is constitutional.
“The breadth and diversity of support for school choice in the U.S. Supreme Court is truly remarkable,” declared Clint Bolick, vice president of the Institute for Justice, which represents five economically disadvantaged Cleveland families who receive publicly funded scholarships to attend private schools. “These briefs, spanning the ideological spectrum, demonstrate the urgent need to preserve this promising educational reform.”
The U.S. Supreme Court granted review on September 25 in the landmark case of Zelman v. Simmons-Harris to resolve, once and for all, the constitutionality of school choice. The program is challenged by teachers’ unions and other choice opponents as an establishment of religion in violation of the First Amendment.
The Institute will file a 50-page brief, joined by Harvard law professor and former U.S. Solicitor General Charles Fried, that argues that the Cleveland program’s “primary effect” is not to advance religion but to expand educational opportunities for economically disadvantaged schoolchildren. Noting that the Court embraced the promise of equal educational opportunities 47 years ago in Brown v. Board of Education, the Institute’s brief argues that the scholarship program reflects “good-faith efforts directed toward the constitutional imperative of extending educational opportunities to children who need them desperately.”
In a combined brief, Republican New York Mayor Rudolph Giuliani and Democratic Milwaukee Mayor John Norquist argue that cities need school choice as a policy option to meet the needs of inner-city education. “Although the legal issue in this case is narrow, the reach is momentous,” their brief states. “It will decide whether the states, by injecting choice and competition into urban K-12 education, can create an effective market in K-12 schooling that succeeds in adequately educating most city children, an outcome America’s cities desperately need in order to thrive again.” Milwaukee is home to the nation’s oldest school choice program for economically disadvantaged children, while Mayor Giuliani has championed similar efforts in New York.
Thirty-eight law professors spanning the ideological spectrum joined a brief written by University of California-Berkeley law professor and former dean Jesse Choper, a distinguished constitutional scholar. The brief argues that under U.S. Supreme Court precedents, it is clear that the scholarship program should not be viewed “as an endorsement of religion, but rather as an effort to ensure that all children who live in Ohio receive an adequate education.”
As a measure of the importance of school choice in the broader context of education reform, briefs will be submitted by the Black Alliance for Educational Options (BAEO), the American Education Reform Council, the Center for Education Reform and numerous other groups. BAEO’s brief is co-authored by Walter Dellinger, an attorney at O’Melveny and Myers, who previously served as U.S. Solicitor General in the Clinton Administration.
Several governors, including Scott McCallum of Wisconsin, Jeb Bush of Florida and Gary Johnson of New Mexico, along with several state attorneys general, including Democratic Florida Attorney General Bob Butterworth, will file or join briefs in support. The United States, which filed a brief urging the High Court to grant review in the case, is expected to file a brief supporting the program’s constitutionality.
“This program is not about religion, it’s about education,” Bolick declared. “This may be the most impressive and diverse array of advocates ever to appear in the Supreme Court united behind a single cause: to remove the constitutional cloud from school choice, once and for all.”
Briefing will be completed in January, with oral argument expected shortly thereafter and a decision anticipated in June 2002.
To arrange interviews or receive copies of the Institute for Justice and other key briefs, reporters may contact John Kramer, the Institute for Justice’s vice present for communications, at (703) 682-9320 ext. 205, or Lisa Knepper, IJ’s communications coordinator, at ext. 202. For an on-line media kit offering one-stop shopping on this subject, please visit www.ij.org and then go to IJ’s Media Center.