Supreme Crescendo For School Choice

March 1, 2002

March 2002

Supreme Crescendo For School Choice

Even nature cooperated.

Defying predictions for rain that could have dampened plans for a massive rally in support of school choice, February 20 turned out to be an unseasonably warm and dry day for the U.S. Supreme Court showdown over the constitutionality of Cleveland’s school choice program.

The sun was shining inside the courtroom, too, as three school choice advocates made a strong case while two union lawyers withered under tough questioning from Supreme Court justices.

Outside, hundreds of parents and children from Cleveland, Milwaukee, Pensacola, Washington, D.C., and other cities rallied for school choice, stealing the thunder from a feeble counter-demonstration by school choice opponents.

Meanwhile, media from coast to coast covered both the court arguments and the human dimension of the most important education case since Brown v. Board of Education.

The day’s events culminated ten-and-a-half years of hard work by the Institute for Justice and its movement allies. Once it became clear a few years ago that one of IJ’s school choice cases would soon reach the Supreme Court, we began to deploy a multi-faceted strategy—legal advocacy, media and outreach—to increase our odds of success in achieving a landmark precedent upholding the freedom of parents to choose non-government schools for their children.

Our team’s efforts to define the main issue in the case as education rather than religion were reflected both in the courtroom and the court of public opinion. U.S. Solicitor General Theodore Olson pointed to IJ’s brief to show that religious schools were just one of the options made available to rescue schoolchildren from the abysmal Cleveland district.

Justice Sandra Day O’Connor, whose vote is usually crucial in cases involving religious establishment, grilled the unions’ lead attorney over his failure to address the broader educational context of the Cleveland program.

In response to the union’s assertion that more money rather than choice was the solution, Justice Antonin Scalia quipped, “It isn’t a money problem; it’s a monopoly problem.”

The media focused heavily on the fact that only 28 percent of Cleveland public school students graduate, and only one in 14 does so on time with senior-level proficiency. Well-timed pro-school choice editorials, columns and news stories by The Wall Street Journal, The Washington Post, George Will and Stuart Taylor, among others, helped make the case.

IJ’s Clint Bolick and Dick Komer manned the counsel table at oral argument, and helped prepare the advocates in the weeks leading up to the argument. Leading IJ’s effort outside the courtroom were Director of Outreach Programs Maureen Blum, who helped coordinate the rally along with several leading parent groups and school choice organizations, and Vice President for Communications John Kramer, who directed an intense, parent-centered media effort. By February 20, every IJ’er was involved in some way in supporting the litigation effort.

Even with all that, the outcome is far from certain. The Court could give us a decisive victory or a narrow set-back, or it could issue a general ruling but remand the case to the lower courts for factual determinations. The decision will likely come down in late June.

Win or lose, we will be prepared to take the fight forward. Even with a decision approving school choice, our opponents will continue to fight parental empowerment with every possible weapon, especially litigation. Meanwhile, we will continue to support our allies as they push to expand school choice throughout the nation.

The memories of February 20—especially the hundreds of parents and children massed in front of the U.S. Supreme Court demanding school choice—will fuel all of us for the challenges ahead.

Top, IJ VP and Director of State Chapter Development Clint Bolick briefs parents on the details of the argument on the steps of the U.S. Supreme Court. Above, parents and children from across the U.S. turned out by the busload to show their support for school choice.

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