School Choice & Charters

Supreme Court to Decide On Cleveland Voucher Program

By Mark Walsh — September 26, 2001 4 min read

Taking on a potentially landmark case, the U.S. Supreme Court will decide in its new term whether the U.S. Constitution permits government tuition vouchers to be used at religious schools.

The court announced Sept. 25 that it will review the constitutionality of the 5-year-old Cleveland school voucher program, which provides state aid to some 4,000 students from low-income families to attend private schools. About 95 percent of the participating students use the vouchers, worth as much as $2,250 per year and paid for by the state of Ohio, to attend religiously affiliated schools.

The justices have passed up opportunities in recent years to review other school choice programs, such as the Milwaukee voucher program, smaller tuition-aid programs in Vermont and Maine, and an Arizona tuition tax credit that benefits private and religious schools.

By granting review of the Cleveland case, the court sets the stage for a ruling that could either pump new life into the movement for private school choice or all but permanently foreclose the idea of allowing government tuition aid to reach precollegiate religious schools.

“This will really give us the opportunity to present the merits of school choice,” said Robert M. Freedman, a staff lawyer with the Institute for Justice. The Washington-based group represents a group of parents of children receiving vouchers.

Robert H. Chanin, the general counsel of the National Education Association and the lead lawyer opposing the Cleveland program in court, said that some voucher proponents might be overly optimistic in predicting that the Supreme Court is ready to uphold the inclusion of religious schools in a publicly funded school choice program.

“Our position is that it is impossible to predict how a majority of the justices will go on this issue,” he said. “Those on the other side who are playing a numbers game are really going way out on a limb.”

Lower Courts

The Cleveland Scholarship and Tutoring Program was struck down last December by the U.S. Court of Appeals for the 6th Circuit. A panel of the Cincinnati-based court ruled 2-1 that the heavy participation of religious schools violated the First Amendment’s prohibition against a government establishment of religion.

The ruling was appealed by the state of Ohio as well as by a group of voucher parents and a group of religious schools participating in the program, which has continued to operate pending further appeals. The Supreme Court accepted all three petitions for review but announced that it will treat them as one case, with the customary one hour of oral argument to come sometime in early 2002. A decision is expected by next July.

The appeals are Zelman v. Simmons-Harris (Case No. 00-1751), Hanna Perkins School v. Simmons-Harris (No. 00-1777), and Taylor v. Simmons-Harris (No. 00-1779).

“I am pleased that the nearly 4,000 low-income Cleveland-area children benefiting from this valuable program will have their day in the Supreme Court,” Ohio Attorney General Betty D. Montgomery, who is overseeing the state’s defense of the voucher program, said in a written statement.

Voucher supporters received a boost from the Bush administration, which filed a brief in June urging the court to accept the case and use it to rule in favor of including religious schools in government aid programs.

The brief suggested that the case could have implications for other administration initiatives that seek to allow a bigger role for religious organizations in government programs to help the disadvantaged.

“This court’s guidance is needed as both Congress and the states seek to enable disadvantaged persons to enlist the services of private organizations—without regard to whether such organizations have any religious affiliation—to meet important individual needs and address critical social issues facing the nation,” said the brief filed by U.S. Solicitor General Theodore B. Olson.

President Bush proposed a voucher experiment in his major education package, but the idea was shelved this year because of insufficient support in Congress.

On a Limb

The Cleveland program was challenged in lawsuits filed in 1996 by a coalition of teachers’ unions and civil liberties groups. Lawyers for the groups had urged the high court not to disturb the 6th Circuit ruling striking down the program.

“We would have been delighted if the court had not taken [the case], but the betting was that it would,” said Mr. Chanin, the lawyer for the NEA. “We’re not surprised.”

The Supreme Court’s eventual ruling would have an immediate impact on the Cleveland program and the two other state-enacted programs that authorize vouchers for students in religious schools. The Milwaukee voucher program is similar to the one in Cleveland, while a Florida law authorizes children in schools designated as failing for two years out of four to use vouchers to attend other public schools or private schools, including religious ones. So far in Florida, only about 50 students from two Pensacola schools have been provided vouchers under that part of the program. Another part of Florida’s program provides vouchers to thousands of children with disabilities to attend private schools.

Because serious legal clouds have shadowed the inclusion of religious schools in voucher programs, many other states have taken a wait-and-see attitude. A Supreme Court ruling authorizing the participation of religious schools would likely give new momentum to the movement.

“A favorable result will demonstrate to legislatures across the country the power they have to help inner-city children,” Mr. Freedman said.

Related Tags:


Jobs The EdWeek Top School Jobs Virtual Career Fair
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.
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.
Mathematics Webinar
Engaging Young Students to Accelerate Math Learning
Join learning scientists and inspiring district leaders, for a timely panel discussion addressing a school district’s approach to doubling and tripling Math gains during Covid. What started as a goal to address learning gaps in
Content provided by Age of Learning & Digital Promise, Harlingen CISD
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.
Curriculum Webinar
How to Power Your Curriculum With Digital Books
Register for this can’t miss session looking at best practices for utilizing digital books to support their curriculum.
Content provided by OverDrive

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 Full-Time Virtual Schools: Still Growing, Still Struggling, Still Resisting Oversight
Nearly 500,000 students now attend full-time online and blended schools, says a new report from the National Education Policy Center.
6 min read
Student attending class from a remote location.
School Choice & Charters Opinion Is Hybrid Home Schooling the Future of Education?
Rick Hess speaks with Mike McShane about hybrid home schooling, which combines the best of home schooling and traditional schooling.
7 min read
Image shows a multi-tailed arrow hitting the bullseye of a target.
DigitalVision Vectors/Getty
School Choice & Charters Oklahoma Charter Schools Granted Local Tax Revenue in 'Seismic' Settlement
A groundbreaking settlement will fundamentally change the way charter schools are funded in Oklahoma, despite vehement opposition.
Nuria Martinez-Keel, The Oklahoman
3 min read
This July 19, 2019 photo shows an Epic Charter Schools office in Oklahoma City. The Oklahoma State Board of Education voted Thursday in favor of an agreement with the state's public charter school association to settle a 2017 lawsuit.
This July 19, 2019 photo shows an Epic Charter Schools office in Oklahoma City. The Oklahoma State Board of Education voted Thursday in favor of an agreement with the state's public charter school association to settle a 2017 lawsuit.
Sue Ogrocki/AP
School Choice & Charters COVID-19 May Energize Push for School Choice in States. Where That Leads Is Unclear
The pandemic is driving legislators' interest in mechanisms like education savings accounts, but the growth may not be straightforward.
8 min read
Iowa Gov. Kim Reynolds delivers her Condition of the State address before a joint session of the Iowa Legislature on Jan. 12 at the statehouse in Des Moines, Iowa.
Iowa Gov. Kim Reynolds delivers her Condition of the State address to state lawmakers on Jan. 12. She's pushing a major school choice expansion.
Bryon Houlgrave/The Des Moines Register via AP