School Choice & Charters

Supreme Court to Decide On Cleveland Voucher Program

By Mark Walsh — September 26, 2001 4 min read
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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.

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