School Choice & Charters

Cleveland’s Voucher Supporters To Appeal Latest Legal Setback

By Jeff Archer — January 12, 2000 3 min read
  • Save to favorites
  • Print

Voucher supporters plan to appeal the latest federal court ruling against the Cleveland Scholarship and Tutoring Program, moving the controversial program a step closer to a possible test before the U.S. Supreme Court.

U.S. District Judge Solomon Oliver Jr. of Cleveland ruled Dec. 20 that the city’s state-enacted voucher plan violates the U.S. Constitution’s ban on a government establishment of religion. The judge, however, delayed the effect of his ruling pending an appeal by voucher proponents to the U.S. Court of Appeals for the 6th Circuit in Cincinnati. The voucher program can continue operating in the meantime.

The opinion was of little surprise, as Judge Oliver had said last August that the program appeared to be unconstitutional when he issued a preliminary injunction just before the school year began. He quickly modified his order, however, allowing the program to continue for those already participating, but forbidding its expansion. The Supreme Court, without ruling on the substance of the issue, then ordered the removal of even that restriction. (“Rulings on Voucher Program Cause Turmoil in Cleveland,” Sept. 8, 1999.)

‘Skewed Toward Religion’

While some laws that benefit religious institutions are constitutional, Judge Oliver wrote in last month’s ruling, no law can have the “primary or principal effect” of advancing religion.

The Cleveland undertaking, he found, fails that test because the vast majority of participating schools are church-oriented. “A program that is so skewed toward religion,” he wrote, “necessarily results in indoctrination attributable to the government.”

The program provides low-income parents with publicly financed grants of up to $2,250 to help pay tuition. This school year, some 3,700 students are using the vouchers in 56 private schools, 46 of which are religious.

Proponents of vouchers complained that Judge Oliver did not delve into why so many religiously oriented schools take part. Matthew Berry, a lawyer with the Institute for Justice, said the most likely reason was simply that families choose them more often than secular ones. “The judge’s continued insistence that parents didn’t have a genuine choice of schools was odd,” said Mr. Berry, whose Washington-based legal-advocacy group is defending the program. “There was no testimony from any parent saying that.”

The judge accepted the argument of voucher opponents that the program should be overturned based on the Supreme Court’s 1973 decision in Committee for Public Education and Religious Liberty v. Nyquist. In that case, the justices struck down a New York state program that provided partial tuition reimbursements for low-income parents whose children attended private schools.

“Voucher proponents have muddied the issue by claiming that the constitutionality of vouchers has not been decided by the U.S. Supreme Court when it has,” said Judith E. Schaeffer, the deputy legal director for the People for the American Way, a liberal watchdog organization that is providing legal representation to the plaintiffs.

But the current Supreme Court is thought by some to be more receptive to the idea of such tuition aid, and the Cleveland case could ultimately yield a new ruling on the issue.

Another Try

There is no guarantee that the high court will ever hear the case. In November 1998, it turned down an appeal of a Wisconsin Supreme Court decision upholding Milwaukee’s voucher program. And the justices have declined to hear recent appeals in other such cases.

The Cleveland program already has worked its way through the Ohio court system, resulting in a mixed ruling by the state supreme court last spring. While finding that the program did not create unconstitutional entanglements between church and state, the state high court ruled that legislators improperly established the effort by tacking it on to the general budget. Lawmakers then reauthorized the program through a new measure, leading the plaintiffs to begin their legal challenge anew in the federal courts.

Despite Judge Oliver’s most recent ruling, many voucher supporters say the most important action came in November, when the U.S. Supreme Court voted 5-4 to grant a temporary stay of the preliminary injunction. Although the stay did not deal at all with the merits of the case, the action effectively allowed new students to receive vouchers.

On another school choice battleground, a state appeals court in Pennsylvania last month upheld a ruling against a proposed voucher plan in the Southeast Delco district outside Philadelphia. In March 1998, the local school board voted to begin offering vouchers to parents, but the plan was put on hold during litigation.

The appeals court ruled that the local board lacked the authority to create such a program.

Related Tags:

A version of this article appeared in the January 12, 2000 edition of Education Week as Cleveland’s Voucher Supporters To Appeal Latest Legal Setback

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Profession Webinar
How Does Educator Well-Being Impact Social-Emotional Awareness in Schools?
Explore how adult well-being is key to promoting healthy social-emotional behaviors for students. Get strategies to reduce teacher stress.
Content provided by International Baccalaureate
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
IT Infrastructure Webinar
A New Era In Connected Learning: Security, Accessibility and Affordability for a Future-Ready Classroom
Learn about Windows 11 SE and Surface Laptop SE. Enable students to unlock learning and develop new skills.
Content provided by Microsoft Surface
Classroom Technology K-12 Essentials Forum Making Technology Work Better in Schools
Join experts for a look at the steps schools are taking (or should take) to improve the use of technology in schools.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

School Choice & Charters Mich. Public School Advocates Launch Effort to Stop DeVos-Backed Proposal
The former secretary of education is backing an initiative that advocates say would create an unconstitutional voucher system.
Samuel J. Robinson, mlive.com
4 min read
Student with backpack.
surasaki/iStock/Getty
School Choice & Charters The Pandemic Pushed More Families to Home School. Many Are Sticking With It
These parents have a common desire to take control of their children's education at a time when control feels elusive for so many people.
Laura Newberry, Los Angeles Times
6 min read
Karen Mozian homeschools her sixth-grade son, Elijah, age 9, at their home in Redondo Beach, California on Jan. 13, 2022. Mozian says her son wasn't getting the kind of help he needed at school. On his study breaks, he enjoys skateboarding and practicing drums.
Karen Mozian homeschools her 6th grade son, Elijah, age 9, at their home in Redondo Beach, California on Jan. 13, 2022. Mozian says her son wasn't getting the kind of help he needed at school. On his study breaks, he enjoys skateboarding and practicing drums.
Carolyn Cole/Los Angeles Times via TNS
School Choice & Charters Bloomberg Launches $750 Million Fund to Grow Charter Schools Amid 'Broken' K-12 System
Former New York City mayor and one-time presidential hopeful Michael R. Bloomberg aims to add 150,000 charter school seats over five years.
5 min read
New York's Mayor Michael Bloomberg, second from left, and Schools Chancellor Dennis Walcott, far left, meeting with senior students at the Bedford Academy High School in New York on Dec. 3, 2013. Bloomberg campaigned on gaining control of the nation's largest public school system. left his mark by championing charter schools, expanding school choice, giving schools letter grades, and replacing scores of struggling institutions with clusters of small schools.
Then-New York City Mayor Michael Bloomberg, second from left, and former Schools Chancellor Dennis Walcott, far left, meet with senior students at Bedford Academy High School in New York in 2013.
Bebeto Matthews/AP
School Choice & Charters Opinion The Kind of School Reform That Parents Actually Want
Parents' inclination to focus on solving specific problems rather than system change helps explain the appetite for novel school options.
3 min read
Image shows a multi-tailed arrow hitting the bullseye of a target.
DigitalVision Vectors/Getty