School Choice Parents Know How Much is at Stake

September 2000

School Choice Parents Know How Much is at Stake

IJ Helps Parents Fight Teachers’ Unions

By Matthew Berry

For many parents, summer is a time for going on vacation, holding barbecues, and sending children to camp. But for parents with children in school choice programs, summer is too often also the time for a more unpleasant task: traveling to court to protect their children’s precious educational opportunities. Such was the case again this year for parents in Ohio and Florida.

For families in Cleveland, the key number is five. In August, the Cleveland Scholarship Program, which enables almost 4,000 low-income Cleveland children to escape from the miserable Cleveland Public Schools and instead attend the private school of their parents’ choice, began its fifth year of operation. But this summer also marked the beginning of the fifth year of litigation over the constitutionality of the program.

In May 1999, the Ohio Supreme Court ruled that the program did not violate the First Amendment’s establishment clause. However, the teachers’ unions and their allies would not take “no” for an answer. Within two months, they were in federal court, making the same establishment clause claim that had just been rejected by the Ohio Supreme Court.

Unfortunately, the unions found a friendly judge in Solomon Oliver of the United States District Court for the Northern District of Ohio. Disagreeing with the Ohio Supreme Court, Judge Oliver concluded that the Cleveland Scholarship program violated the establishment clause because parents could choose to use their scholarships at religious schools.

IJ, representing Cleveland parents and children, along with the State of Ohio swiftly filed an appeal with the United States Court of Appeals for the Sixth Circuit in Cincinnati.

Oral argument soon was scheduled for June 20th in Cincinnati before a three-judge panel of the Sixth Circuit. So Cleveland parents geared up to travel to court to defend their children’s access to a high-quality education. Coming back to the key number five, this marked the fifth court to which Cleveland parents had traveled in defense of the program.

They had taken bus rides to Columbus to attend hearings at the Ohio Court of Common Pleas, Ohio Court of Appeals, and Ohio Supreme Court. They had come to the federal courthouse in their hometown of Cleveland to attend hearings in Judge Oliver’s courtroom. And on June 19th, more than 40 parents, grandparents, and children boarded a bus to travel from Cleveland, which borders Lake Erie at the northern edge of Ohio, to Cincinnati, situated on the banks of the Ohio River at the state’s southern tip. All in all, their journey took seven hours.

But fortunately they were not alone. Parents came from Indianapolis, Dayton, Cincinnati, Denver, Milwaukee, and New Mexico to show solidarity with those from Cleveland at a rally held just one block from the courthouse on the morning of oral argument. While IJ’s Litigation Director Clint Bolick and Ohio State Solicitor Ned Foley explained to the panel of three judges why the Cleveland Scholarship Program passes constitutional muster, parents, such as IJ client Christine Suma, and elected officials, such as Ohio Secretary of State Ken Blackwell and Cleveland City Councilwoman Fannie Lewis, spoke to the media and the public about the importance of the program to economically disadvantaged Cleveland families.

Whichever way the Sixth Circuit rules, this may not be the last time that Cleveland parents must travel to court. Within the next year or two, they may have to make their longest trip yet, to Washington D.C. for oral argument at the U.S. Supreme Court. But based on past experience, we’re sure they’ll be ready because they know firsthand the importance of what’s at stake.

Parents in Pensacola, Florida also know firsthand about the importance of school choice, and that’s why they traveled to Tallahassee in August to attend oral argument at Florida’s First District Court of Appeals. These parents send their children to private schools through Florida’s opportunity scholarship program. The program provides parents of children assigned to failing public schools, those determined by the State to be failing for two years in any four-year period, the additional options of sending their children to the higher-performing public school or private school of the parents’ choice.

Last year, fifty-eight Pensacola students assigned to two failing elementary schools became the first to attend private schools through the program. But as with all other school choice programs, the teachers’ unions have been in court from the beginning trying to force these students back to failing schools.

In March, a Florida trial court judge sided with the unions, holding that the opportunity scholarship program violates a provision of the Florida Constitution requiring the State to maintain a uniform, high-quality system of free public schools. Judge L. Ralph Smith reached the unprecedented conclusion that this provision implicitly prohibited the State from enacting additional programs to educate K-12 students.

While the teachers’ unions then attempted to shut down the program immediately, Judge Smith rebuffed their attempt in April, allowing the program to go forward while the case was on appeal to the First District Court of Appeals. Oral argument was held in that court on August 16th, and Pensacola parents and children were there, reminding the judges of the lives that will be affected by the outcome of the litigation; while Clint Bolick defended the constitutionality of the program alongside lawyers from the State of Florida.

Bolick asked the judges how a program that allows children to escape from failing schools could be inconsistent with a constitutional provision guaranteeing that the State shall adequately provide for the education of all Florida children. He also pointed out that because of the threat of competition provided by the program, none of the 78 schools receiving failing grades last year were on the list of failing schools this year. Schools had implemented major reform efforts so that their students would not become eligible for scholarships, and the program, he pointed out, was thus helping to realize the constitutional goal of high-quality public schools.

As in Ohio, the decision expected to be issued shortly by the First District Court of Appeals will not be the final word in this case. Depending on how the appellate court rules, we will soon be back in the trial court or in the Florida Supreme Court continuing to litigate the constitutionality of the program.

So Pensacola parents will once again have to make the three-hour trek to Tallahassee to protect their children’s educational opportunities. But, like the parents in Cleveland, we know that they’ll come enthusiastically. And their dedication will continue to inspire us to work for the day when all parents in America will have the opportunity to choose the public or private school that is best for their child.

Matthew Berry is an Institute for Justice staff attorney.