Groups Weigh In As High Court Mulls Vouchers

By Mark Walsh — November 28, 2001 4 min read
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A powerful lineup of advocates—from the Bush administration, to New York City Mayor Rudolph W. Giuliani, to the nation’s Roman Catholic bishops—is urging the U.S. Supreme Court to uphold the Cleveland voucher program.

Vouchers are a valid response to the “catastrophic and well-documented failure of Cleveland’s inner-city public schools,” says a friend-of-the-court brief from Solicitor General Theodore B. Olson.

The brief filed on behalf of Mayor Giuliani, a Republican, as well as Mayor John O. Norquist of Milwaukee, a Democrat, argues that the monopoly of urban school systems must be broken before cities will truly be able to lure middle-class residents back from the suburbs.

And voucher programs such as the state-enacted program in Cleveland can include religious schools without violating the U.S. Constitution, because parents are making independent choices to send their children to such schools, argues a brief filed on behalf of the economist Milton Friedman, the intellectual godfather of educational vouchers, and others.

The high court announced Sept. 25 that it would review the constitutionality of the 6-year-old Cleveland voucher program, which provides state aid for private school tuition to some 4,000 students from low-income families. Some 96 percent of the students use vouchers worth as much as $2,250 a year to attend religiously affiliated schools.

Two lower federal courts struck down the program as an unconstitutional establishment of religion. The Supreme Court accepted the appeals of the state of Ohio, a group of private schools educating voucher students, and a group of voucher families. The appeals have been consolidated in Zelman v. Simmons-Harris (Case No. 00-1751), and the court will likely hear oral arguments in February and decide the case by next summer.

The deadline for the pro-voucher side to file its briefs on the merits of the case was Nov. 9. Voucher opponents, including the major teachers’ unions and groups such as the American Civil Liberties Union, won’t file their briefs until next month.

By then, the high court will be awash in paperwork from as many as two or three dozen groups arguing for or against vouchers. It is fairly typical for a high-stakes case such as this one to attract a flood of briefs. The court says in its rules that it welcomes friend-of-the-court briefs that bring “relevant matter” to its attention.

Heavy Hitters

Many advocacy groups take that as an invitation to provide the justices with their perspectives, including both policy and legal arguments. It need not even be a group. The pro-voucher filings in the Cleveland case include briefs from such individuals as Fannie Lewis, a Cleveland City Council member who helped lobby the Ohio legislature for the creation of the program, and Hugh Calkins, who served as a law clerk to Justice Felix Frankfurter in 1950-51 and was a member of the Cleveland board of education in the 1960s. Mayors Giuliani and Norquist also filed their joint brief as individuals. Much of it is devoted to arguing that troubled school systems in cities such as theirs have been holding back the full recovery of America’s cities.

“Rather than flee cities because of their schools, middle-class parents should be flocking into cities to take advantage of the wide array of superb K-12 choices and superior educational performance that arise from intense urban school competition,” the brief says.

Mayor Giuliani, who leaves office at the end of the year, has proposed pilot voucher programs during his eight-year tenure, but none was enacted. Mayor Norquist, in Milwaukee, governs a city that is the home to the nation’s pioneering private-school-voucher program, enacted by the Wisconsin legislature in 1990.

Mr. Norquist is not the only prominent Democrat to support the Cleveland program in the high court. Former Mayor Kurt L. Schmoke of Baltimore signed on to a brief filed by the American Education Reform Council, a Milwaukee group that touts its city’s choice program.

The U.S.Conference of Catholic Bishops, the public-policy arm of the Roman Catholic Church in this country, stresses in its brief that even though most of the Cleveland voucher recipients attend religious schools, the program still provides parents with choices that include secular private schools and charter schools.

“In this case, religious schools participate as one part of a much larger educational whole,” the brief states.

The case has attracted the participation of a number of legal luminaries as well.

Kenneth W. Starr, the former Whitewater independent counsel who served as the solicitor general during the first Bush administration, helped write Ohio’s defense of the voucher program.

But to the surprise of observers when it was revealed recently, Mr. Starr will not argue the state’s case before the justices. Instead, an assistant state attorney general will. (“Federal File: Starr’s Out?,” Sept. 12, 2001.)

Charles Fried, a Harvard University law school professor and a solicitor general under President Reagan, co-wrote the brief filed by the Institute for Justice on behalf of voucher families. Both C. Boyden Gray, a White House counsel under the first President Bush, and Edwin Meese III, a White House aide and attorney general under President Reagan, have also helped draft pro-voucher briefs.

Amid the hundreds of pages of legal arguments, one brief sure to get the attention of the justices is that of the current solicitor general, Mr. Olson, who is also likely to be given part of the one-hour oral argument to provide the Bush administration’s views.

“The pilot scholarship program cannot reasonably be viewed as an endorsement of religion,” the solicitor general’s brief states. “It is undisputed that the program was enacted to throw an educational lifeline to the mostly poor students in Cleveland’s public school district after the district had demonstrably failed parents and students in its basic educational mission.”

A version of this article appeared in the November 28, 2001 edition of Education Week as Groups Weigh In As High Court Mulls Vouchers


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