School Choice & Charters

Advocates’ Post-Ruling Choice: Bubbly

By Mark Walsh — July 10, 2002 4 min read
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Several mornings this June, Clint Bolick arrived at the U.S. Supreme Court and took a seat in the exclusive section of the gallery set aside for members of the court’s bar.

Story Index In the Court's Words A Long Road to Court Ruling Gives Second Wind to Capitol Hill Voucher Advocates Catholics Laud Voucher Decision Advocates' Post-Ruling Choice: Bubbly A Great Day, or Dark One, for Schools? Voucher Battles Head to State Capitals Justices Settle Case, Nettle Policy Debte

The justices do not announce in advance which decisions they will release on a given day, so Mr. Bolick hoped each time that a ruling would come on the constitutionality of the Cleveland voucher program. For the past decade, Mr. Bolick has helped lead the legal defense of vouchers as a vice president of the Institute for Justice, a libertarian legal organization based here.

By June 27, the last day of the court’s 2001-02 term, the voucher decision was one of four final rulings still to be announced and virtually certain to come to a long-awaited resolution. But instead of taking a seat in the courtroom, Mr. Bolick waited near the court’s press room downstairs. The Cable News Network wanted him and a prominent voucher opponent available to react to the decision moments after it was released.

“We followed a reporter out the door, where she handed us the [court] opinions,” Mr. Bolick said. “We had about 30 seconds to digest them before the CNN cameras went live. I had rehearsed two different speeches.”

Mr. Bolick, of course, got to deliver his joyful reaction to the court’s 5-4 ruling upholding the Cleveland program. Later, he and others at the institute celebrated the culmination of their decade-long quest with a case of Dom Perignon sent by one of its board members.

Institute for Justice Vice President Clint Bolick, second from left, President William H. Mellor, to his left, and staff celebrate on June 27.
—Allison Shelley/Education Week

“I had never even smelled Dom Perignon, much less tasted it,” Mr. Bolick said.

The Institute for Justice was established in 1991, and has been devoted to fighting as what it views as excessive government interference with entrepreneurs—among them, African- American hair braiders and jitney cab drivers who have been stymied by local regulations. But its signature issue has been school choice, and its lawyers have intervened in legal battles around the country representing the low-income recipients of school vouchers.

“When we started 11 years ago, we vowed that if you had a school choice plan, you had a lawyer,” said William H. Mellor, the institute’s president and general counsel.

Mr. Bolick, 44, who worked for Clarence Thomas when the Supreme Court justice headed the U.S. Equal Employment Opportunity Commission under President Reagan, initially gained prominence battling racial quotas.

As the Milwaukee and Cleveland voucher programs faced years of legal scrutiny, Mr. Bolick squared off in court numerous times against Robert H. Chanin, the general counsel of the National Education Association and the leading legal tactician against vouchers. (“Bolick v. Chanin,” April 1, 1998.)

No Regrets

While Mr. Chanin was the lead lawyer arguing against vouchers during the Supreme Court’s oral arguments in Zelman v. Simmons-Harris in February, Mr. Bolick did not get to address the justices. The pro-voucher argument in the Cleveland case instead was led by Judith L. French, an assistant attorney general of Ohio. Mr. Bolick raised a bit of a fuss last year when the state chose her to argue the case over the most prominent litigator on its legal team: Kenneth W. Starr, the former U.S. solicitor general and Whitewater independent counsel.

Mr. Bolick said the pro- voucher team eventually patched up any differences and worked together on presenting their case to the justices. He has no regrets about withdrawing a motion to argue part of the case himself.

Shortly before the ruling, he sent Mr. Chanin a note.

“I said no matter how the decision came down, he was a masterful lawyer, and I learned a lot from him during the course of this,” he said.

Mr. Chanin was in Dallas preparing for the NEA’s convention when the ruling came. “There is no doubt this will give momentum to the voucher movement,” he said. “It will energize them. But they still have to persuade those who make the decisions that it is a sound educational program that provides meaningful answers. I’m not sure this ruling helps them in that task.”

The Institute for Justice is a 501c (3) nonprofit organization with an annual budget of $5 million and a staff of 28, including 10 lawyers. Its staff says two-thirds of its budget comes from small individual contributions and about one-third comes from a variety of foundations. It has no single prominent benefactor, they say.

The institute has embarked on an effort to open state chapters. Mr. Bolick moved to Phoenix last year to open the Arizona chapter and lead the nationwide state policy initiative. The institute remains committed to defending school choice programs, he said.

Neither his membership in the Supreme Court bar nor his prominent role in a landmark constitutional case exempted Mr. Bolick from confronting a duty usually encountered by recent law school graduates.

“I’ve been studying for the Arizona bar, and it’s a bit of a comedown,” he said. “It’s a real exercise in humility.”

A version of this article appeared in the July 10, 2002 edition of Education Week as Advocates’ Post-Ruling Choice: Bubbly

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