February 2000

Judge Strikes Down Cleveland School Choice But U.S. Supreme Court Lets Program Continue

Five days before Christmas, federal Judge Solomon Oliver delivered a lump of coal to 3,800 Cleveland schoolchildren when he declared Cleveland’s school choice program unconstitutional.

But the effect of the ruling was ameliorated by a 5-4 U.S. Supreme Court decision on November 5 overturning Judge Oliver’s injunction against the program, issued on the eve of the school year. In the wake of the Supreme Court’s action-and a tremendous barrage in the court of public opinion-the unions backed off the idea of an injunction for the pendency of the litigation.

“The wolves have been muzzled,” declared Clint Bolick, IJ’s litigation director and lead school choice lawyer. “For now.”

Judge Oliver’s decision was expected, given the hostility he displayed to the program in his August ruling. The judge determined that because most of the schools participating in the program are religious, the program violates the First Amendment’s religious establishment prohibition.

That holding directly conflicts with decisions from the Wisconsin and Ohio Supreme Courts upholding school choice programs. Most important, it departs from a 1983 U.S. Supreme Court decision, Mueller v. Allen, which upheld tuition tax deductions even though nearly all were claimed for religious school tuition.

“The decision is preposterous,” Bolick said. “All schools are invited to participate in this program-public, private and religious. The fact that religious schools are throwing these kids a life preserver-and the public schools are turning their backs on them-should not render the program unconstitutional.”

IJ will appeal the decision to the 6th Circuit Court of Appeals in Cincinnati. Following that court’s decision, an appeal to the U.S. Supreme Court is imminent.

Until then, nearly 4,000 economically disadvantaged youngsters can continue attending good schools chosen by their parents. We will continue fighting to ensure that they never will be turned away again.