Federal Judge Suspends Cleveland Voucher Program

By Mark Walsh — August 26, 1999 3 min read
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A federal district judge has issued an injunction halting the Cleveland private-school-voucher program, causing confusion and anxiety at the start of the new school year for some 4,000 participating students as well as for parents and educators.

U.S. District Judge Solomon Oliver Jr. of Cleveland issued the injunction Aug. 25 in response to a lawsuit against the state-enacted voucher program by a coalition of teachers’ unions and advocacy groups.

In a 28-page opinion, the judge said the program should be suspended pending full consideration of the suit because ``there is no substantial possibility” that the voucher program would pass muster under the U.S. Constitution.

Because the participating private schools are overwhelmingly religious, the judge said, the program likely violates the First Amendment’s prohibition against any government establishment of religion because the voucher funds received by the schools ``are not restricted to use for secular educational purposes.”

The timing of the injunction--one day before the start of the academic year in the Cleveland public schools--led to confusion about whether low-income voucher recipients would have to scramble to transfer from their private schools to the public system.

Supporters of the program, however, urged voucher students to continue attending their private schools, and that is what most appeared to be doing this week.

The state attorney general’s office, as well as lawyers representing voucher families who have intervened in the lawsuit, said they would ask the U.S. Court of Appeals for the 6th Circuit to block the injunction and allow the voucher program to resume while the district court considers the merits of the case.

``The stakes could not be higher for these children, and we’re going to challenge this decision with every resource at our disposal,” Clint Bolick, the litigation director of the Institute for Justice, said in a written statement. The Washington-based legal organization promotes vouchers nationwide and represents the intervening voucher families.

The injunction came as something of a surprise because the 4-year-old Cleveland voucher program already went through a lengthy review by the Ohio state courts during which it was allowed to operate.

Earlier this year, the Ohio Supreme Court struck down the initial voucher program on the grounds that it violated the state constitution because it was enacted as part of a broad budget bill. But the state high court went on to rule that even with the inclusion of religious schools, the program would not violate federal or state constitutional prohibitions against government aid to religion.

The Ohio legislature reauthorized the voucher program this summer as part of an education bill. Opponents, including the National Education Association, the American Federation of Teachers, People for the American Way, and Americans United for Separation of Church and State, opted to challenge the new program in federal court. Those opponents cheered the injunction.

``This decision brings the school voucher train to a screeching halt,” the Rev. Barry W. Lynn, the executive director of Americans United, said in a written statement. ``Taxpayers cannot be required to support houses of worship or their schools.”

In his decision, Judge Oliver said he realized the injunction would cause disruption for voucher pupils. But the potential harm from halting the program now, he said, ``is insufficient to overcome the fact that plaintiffs’ likelihood of success on the merits is great.”

``The Cleveland program has the primary effect of advancing religion,” Judge Oliver said. ``Failing to grant the injunction under such circumstances would not only be contrary to law, but could cause an even greater harm to the children by setting them up for greater disruption at a later time.”


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