Entire Sixth Circuit Declines to Review School Choice Case, Appeal Now Headed to U.S. Supreme Court

John Kramer
John Kramer · March 1, 2001

Washington, D.C.-In the wake of yesterday’s refusal by the full U.S. Court of Appeals for the Sixth Circuit to rule on the constitutionality of the Cleveland Scholarship Program, the Institute for Justice vowed this morning to take the case all the way to the U.S. Supreme Court. It announced that it would soon ask the High Court to review last December’s 2-1 decision by a three-judge panel of the Sixth Circuit striking down the program on the grounds that it violated the First Amendment’s establishment clause. That decision conflicts with a 1999 ruling of the Ohio Supreme Court upholding the constitutionality of the program on First Amendment grounds.

The Institute’s lawyers believe the Supreme Court will agree to hear the case. The Court voted 5-4 in November 1999 to stay an injunction against the program issued by U.S. District Court Judge Solomon Oliver. While the Supreme Court has issued six consecutive rulings upholding programs analogous to school choice, lower courts are split over the constitutionality of school choice.

“We are now only one step away from the definitive U.S. Supreme Court ruling on the constitutionality of school choice,” said Clint Bolick, the Institute’s vice president and litigation director. “The Sixth Circuit’s decision is inconsistent with decisions of the Wisconsin and Ohio state supreme courts. Now is the time for the U.S. Supreme Court to resolve this conflict.”

The Cleveland Scholarship Program currently allows almost 4,000 low-income children to escape the abysmal Cleveland Public Schools, which last year met zero of 27 performance criteria established by the State of Ohio.

“If the Sixth Circuit’s decision is allowed to stand, almost 4,000 low-income kids will be forced to return to the failing Cleveland public school system,” Bolick concluded. “The Supreme Court should not allow that to happen and we hope it will soon consider their plight.”

The Institute has asked the teachers’ unions challenging the program to agree to a stay of the Sixth Circuit’s ruling until the Supreme Court resolves the case. “The 1999 injunction threw the kids and the schools, both public and private, into chaos,” Bolick said. “The unions should leave the kids alone while the lawyers litigate.”

Regardless, the Institute for Justice expects to obtain a stay from the Sixth Circuit or the Supreme Court so that the program will not be disrupted in the middle of the school year.

The Institute represents five Cleveland families currently participating in the scholarship program. The Institute is also currently defending the constitutionality of school choice programs in Florida, Illinois, and Arizona.