In Sight of the Summit

November 2001

By Clint Bolick

The law sometimes moves like a glacier.  It took 58 years of concerted effort to overturn the infamous Plessy v. Ferguson and the dreaded separate-but-equal doctrine in the 1954 Brown v. Board of Education decision.

It has taken another 47 years to arrive at the threshold of finally vindicating the great promise of equal educational opportunities.

Compared to that, the 11 years my colleagues and I have spent defending school choice programs seems like a heartbeat.  We’ve litigated 16 lawsuits in ten states and Puerto Rico, and we’ll surely litigate many more before the fight is fully won.

But the big one is right now.

On September 25, 2001, the U.S. Supreme Court granted review in Zelman v. Simmons-Harris, a lawsuit challenging the Cleveland school choice program.  The Court appears poised to resolve, once and for all, the constitutionality of school choice.

IJ is now deploying the Supreme Court strategy it first developed at the “Shadow of the Beast” conference in 1997 (held at the Jefferson Hotel across from the National Education Association headquarters), which brought together the movement’s top legal minds.

Here is a primer for the battle as it unfolds.

The Program

The Cleveland Scholarship and Tuitioning Program was enacted in 1995 and signed into law by then-Gov. George Voinovich.  It responded to a severe crisis in the Cleveland public school system, in which only one in every 14 students graduates on time with senior-level proficiency—and one in every 14 students is a victim of crime inside the schools.

IJ President Chip Mellor welcomes school choice parents and children the Institute represents in cases across the nation.

The crisis was so severe that for the first time in U.S. history a federal court transferred control of a school system to the state due to administrative malfeasance.  The crisis motivated Cleveland Councilwoman Fannie Lewis to bring busloads of parents to the state Capitol to lobby for school choice.

Four thousand children are enrolled in the program.  Studies show significant academic gains.  Meanwhile, in 1998-99, the Cleveland public schools flunked every one of the state’s 27 performance standards.  Last year it improved to passing three of 27.

The program provides scholarships of up to $2,250 for low-income students to attend private schools, which must accept the scholarships as 90 percent of tuition.  Suburban public school districts were invited to participate at a much higher reimbursement rate, but all declined.  Fifty-six private schools, mostly Catholic, agreed to provide an education life preserver to Cleveland schoolchildren.

The Lawsuits

The Empire quickly fought back.  The NEA and American Federation of Teachers, along with the American Civil Liberties Union, People for the American Way, Americans United for Separation of Church and State, and others filed a state court lawsuit challenging the program on state and federal constitutional grounds.  IJ immediately intervened on behalf of school choice families.

The trial court upheld the program, and it commenced in fall 1996.

In 1999, the Ohio Supreme Court ruled 4-0 that the program does not violate the First Amendment, but invalidated the program because it was adopted as part of the state budget in violation of the state constitution.  The legislature promptly re-enacted the program as a separate bill.

The plaintiffs then filed a new lawsuit in federal court, solely on First Amendment grounds.  Hours before the 1999-2000 school year was to begin, U.S. District Court Judge Solomon Oliver enjoined the program, jeopardizing its 4,000 participants.  After a huge public outcry, Judge Oliver reversed most of his own injunction.  In November 1999, the Supreme Court vacated the injunction in its entirety by a 5-4 vote.  Nonetheless, Judge Oliver went on to invalidate the program.  The U.S. Court of Appeals for the Sixth Circuit affirmed that ruling by a 2-1 vote earlier this year.

Despite the legal tumult, the program is now in its sixth year of helping low-income kids get a good education.

The federal courts ruled that the Cleveland program is an “establishment of religion” because most of the children are enrolled in religious schools.

But in a series of six rulings between 1983 and 2000, the U.S. Supreme Court has upheld the use of public funds in religious schools or activities if (1) the aid is “neutral,” with no preference for religious programs, and (2) the funds are used in religious schools only as a result of “true private choice.”

We worked closely with Gov. Voinovich and state legislators to make sure the program met these criteria—and it still does today.

IJ’s Strategy

Despite our optimism, we are leaving no stone unturned.  Our strategy is multifaceted:

IJ’s brief—Our brief not only makes basic constitutional arguments, but also places the program in its real-world context.  We demonstrate that the program’s “primary effect” is not to establish religion, but to expand educational opportunities.  (Check out IJ’s brief at www.ij.org.)

Amicus coordination—We have helped coordinate the preparation of more than two dozen friend-of-the-court briefs, including a brief by two big-city mayors (Milwaukee’s John Norquist and New York’s Rudy Giuliani); and one representing dozens of law professors from all parts of the philosophical spectrum, authored by former Berkeley law dean Jesse Choper.

Grassroots organization—Working closely with Cleveland Councilwoman Lewis, we have helped develop Cleveland Parents for School Choice to tell the success story of the scholarship program.

Court of public opinion—IJ’s Vice President for Communica-tions John Kramer is directing a coordinated campaign among many organizations to ensure that the Cleveland story is accurately and positively portrayed in the media.

Careful coordination with our legal allies—Because the State of Ohio is the main defendant, IJ may not get to present argument in the Supreme Court.  But we are working closely with the state’s lawyers and U.S. Solicitor General Ted Olson to prepare a top-notch oral argument.

We could not be where we are without the passionate support of dozens of pro-school choice groups, foundations and activists.  We continue constant communication and coordination on all fronts.

Time Frame

IJ filed its opening brief on November 9.  We expect argument in February or March, and a decision by the end of June.

What’s at Stake

•The essential principle that parents, not the government, should decide where their children attend school.

•The educational fate of 4,000 economically disadvantaged schoolchildren in Cleveland—and countless thousands more around the nation.

•The teacher unions’ monopoly stranglehold over public education.

IJ’s Perspective

When IJ opened its doors 10 years ago, we vowed we would defend every school choice program until the constitutional cloud was removed, once and for all.  The resources and tenacity of those defending the status quo seemed unmatchable.  Families needed a defender.  Our resources pale in comparison to our opponents, but our passion and commitment never wane.

For me, the odyssey has been even longer.  As a college senior (many years ago!), I decided against a career as a classroom teacher after witnessing abysmal conditions in public schools.  Having taken a course in constitutional law and read Milton Friedman’s persuasive argument for school vouchers, I decided I could do more for education in the courtroom than the classroom.

I didn’t realize then how rare it is for a lawyer to have the chance to pursue such lofty dreams.  Fortunately, IJ and its supporters have made that work possible.

The rewards are amazing.  Feeling the joy among parents who thought they had no choices—seeing the beaming pride on the little children’s faces—is phenomenal.

It’s worth fighting for.  And we plan to win.

Stay tuned.

Clint Bolick is IJ’s vice president and director of state chapter development.