School Choice: One Last Step to the Supremes

January 2001

School Choice: One Last Step to the Supremes

By Clint Bolick

The long-awaited news from the U.S. Court of Appeals for the Sixth Circuit was disappointing: the court on December 11 voted 2-1 to strike down the Cleveland scholarship program.

But the decision has a silver lining: we now have a case ready to resolve once and for all the constitutionality of this vital educational reform.

Meanwhile, and most importantly, the program continues while the lawyers litigate.  In its fifth year, the Cleveland program is providing high-quality educational opportunities to nearly four thousand economically disadvantaged schoolchildren.

The Sixth Circuit panel decision focused on the large percentage of children attending religiously affiliated schools.  The panel refused to consider the scholarship program in the broader context of public schools of choice, specifically magnet and charter schools, that are available to Cleveland schoolchildren.  When magnet and charter schools are added to the mix, only 16.5 percent of Cleveland students enrolled in schools of choice are attending religious schools.

The decision has a silver lining: we now have a case ready to resolve once and for all the constitutionality of this vital educational reform.

Moreover, students choosing public schools receive more than twice as much in per-pupil aid as scholarship students attending private schools, and only public school students are eligible for tutorial grants.  Scholarships for private school students are worth $2,250, and the families must contribute an additional 10 percent of tuition.

Oddly, the court seized upon the small amount of the scholarships to argue that the program is skewed toward religion because only religious schools can educate youngsters for $2,500 per student.  In a debate with National Education Association general counsel Robert Chanin in New York City, I suggested that school choice supporters would compromise by agreeing to raise the scholarship amount.  Chanin declined the generous offer.

The court also overlooked the fact that suburban schools–which would receive the state’s per-pupil allotment plus the scholarships—were invited to participate but none were willing to do so.  By contrast, 53 private schools agreed to accept $2,500 as full payment of tuition.  What the court’s decision amounts to is that because not enough schools agreed to throw a life preserver to these kids, then none will be allowed to do so.

Judge James Ryan issued a stinging dissent, taking the majority to task for ignoring an unbroken series of Supreme Court rulings sustaining indirect aid that individuals direct to religious schools or activities.  “Is the point being made here that . . . poverty-level parents cannot be trusted to understand what they will be exposing their children to if they choose one of these religious schools?” Judge Ryan queried.

He concluded, “It is difficult to imagine how a voucher statute could be crafted that more clearly and decisively forecloses the government from having any role in the religious indoctrination of Cleveland school children, or forecloses it from defining the recipients of the vouchers by reference to religion, than through the range of free and independent choices the statute gives to parents whose children attend the Cleveland public schools.”

Before moving for U.S. Supreme Court review, we have asked the entire 12-member Sixth Circuit Court of Appeals to review the panel’s decision en banc.  Regardless of what happens, the case likely will be slated for the Supreme Court’s term that begins in October 2001 and ends in June 2002.

Our optimism about Supreme Court review emanates from three factors:

If the panel decision is not overturned by the Sixth Circuit en banc, this will be the first case in which children will be forced to leave a school choice program if the Supreme Court declines to hear the case.  That is a powerful equitable consideration supporting Supreme Court review.

Not only does a split in judicial authority exist over school choice in general, which bodes well for Supreme Court review, but a split in authority exists in this case, with the Ohio Supreme Court upholding the program on First Amendment grounds and the Sixth Circuit striking down the same program on the same grounds.  Only the Supreme Court can resolve that split.

When the Supreme Court stayed U.S. District Court Judge Solomon Oliver’s injunction against the program in November 1999, one of the factors it weighed was the likelihood that it would eventually decide the case.  So we have an indication from the Supreme Court itself that it will grant review.

As the case moves toward the Supreme Court, IJ will deploy strategies we have been developing for several years.  Meanwhile, our allies in the school choice movement are supporting the effort with print and broadcast advertisements, making the case for school choice in the court of public opinion.

After nearly ten years of aggressive litigation in support of school choice, we are poised for the final push to secure a definitive ruling.  Whatever happens, skirmishes will remain—but a victory in the U.S. Supreme Court is an essential prerequisite to reaping the full potential of parental autonomy in education.

Clint Bolick is the Institute for Justice’s litigation director.