School Choice & Charters

Court Blocks Injunction, Allows Voucher Program To Continue Temporarily

By Mark Walsh — November 17, 1999 3 min read
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Nearly 800 Cleveland schoolchildren returned to religious schools at government expense last week after the U.S. Supreme Court blocked an injunction that had barred new participants from the city’s controversial voucher program.

By a 5-4 vote Nov. 5, the high court granted a request from voucher parents and the state of Ohio for a stay of a preliminary injunction issued in August by U.S. District Judge Solomon Oliver Jr.

The judge held that the voucher program’s inclusion of religious schools was likely an unconstitutional establishment of religion under the First Amendment. He initially issued a preliminary injunction that shut down the program for all 3,800 voucher recipients this year. After several chaotic days, however, the judge amended the injunction to allow the more than 3,000 students who had received vouchers the previous school year to continue receiving them until he reached a final decision on the program’s constitutionality.

But the judge did not allow nearly 800 students who were new to the program, mostly kindergartners, to receive vouchers.

Voucher proponents asked the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, to lift the rest of the preliminary injunction. But weeks went by, and the appeals court did not act on the request. Voucher parents were left to scrape up tuition money to keep their children in private schools or else begin transferring them back to public schools.

Last month, the state filed an emergency request asking Supreme Court Justice John Paul Stevens to lift the preliminary injunction so the remaining 800 children could receive vouchers this year. Justice Stevens handles such emergency matters for the 6th Circuit, but he referred the request to the full Supreme Court.

The high court issued a brief order lifting Judge Oliver’s preliminary injunction “pending final disposition of the appeal” by the 6th Circuit court. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer said they would deny the request for the stay in Zelman v. Simmons-Harris (Case No. 99-A-320).

Unclear Purpose

It wasn’t entirely clear how long the Supreme Court’s order was intended to last.

By one reading, it would expire if and when the 6th Circuit court ruled on the appeal of the preliminary injunction. But that appeal becomes moot once Judge Oliver issues, as he is expected to do, a permanent injunction against the voucher program. The judge has said he intends to rule on the merits of the program by the end of December or early January.

By another reading, the high court may have intended to keep the program running at least until the appeals court reaches its own final ruling on the constitutionality of the program.

Robert H. Chanin, the general counsel of the National Education Association, interpreted the court’s order as lasting only until Judge Oliver rules on the merits of the voucher program. But he acknowledged that the high court appears to want to let the program continue until the legal questions are fully resolved.

“The message seems to be, don’t shut down the program while its constitutionality is being litigated in the lower courts,” said Mr. Chanin, whose union is backing the lawsuit challenging the program.

The high court’s order can also be read as a signal that the justices are prepared to examine the constitutionality of vouchers, and view the Cleveland case as a good one to do that, Mr. Chanin said. But he cautioned that the narrow vote on the request for a stay should not be read as signaling the court’s ultimate verdict on the constitutionality of religious school vouchers.

Nevertheless, Clint Bolick, the legal director of the Washington-based Institute for Justice, said the court’s action was a hopeful sign for school choice programs involving religious schools.

“The court gives us every reason to think there may be light at the end of a very long tunnel,” said Mr. Bolick, whose organization represents voucher parents in Cleveland.

In Cleveland, the parents were happy that new children were now back in the program, but still anxious over the lack of certainty over its ultimate fate.

“The Supreme Court’s order was great, but there are still going to be appeals about the program,” said Diane Kinzer, whose two daughters attend Corpus Christi School, a Roman Catholic elementary school. One daughter is a kindergartner who was barred from receiving her voucher until the high court acted.

A version of this article appeared in the November 17, 1999 edition of Education Week as Court Blocks Injunction, Allows Voucher Program To Continue Temporarily


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