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School Choice & Charters

U.S. Asks High Court To Review Voucher Case

By Mark Walsh — July 11, 2001 3 min read

The Bush administration is asking the U.S. Supreme Court to take up the Cleveland voucher case and to use it to rule that the inclusion of religious schools in educational choice programs does not violate the U.S. Constitution.

“As lawmakers and educators search for solutions for economically disadvantaged children enrolled in ... failing public schools, the court’s guidance is needed” on whether religious schools may be one of the options, said the brief filed late last month by Solicitor General Theodore B. Olson.

The administration’s decision to join with the state of Ohio and other voucher advocates will likely help the chances that the justices will decide to review the Cleveland program.

The Supreme Court has declined in recent years to review several school choice programs that included religious schools. But the justices have expressed interest in the Cleveland program. In 1999, the high court blocked a federal district court injunction that had barred new students from receiving vouchers. The message perceived by both sides in the litigation was that a majority of justices wanted to let the Cleveland program operate while its constitutionality was being weighed in the courts. Many legal observers believe the court may now be ready to accept a voucher case for review.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 in December that the Cleveland Scholarship and Tutoring Program violates the First Amendment’s prohibition against a government establishment of religion because of its inclusion of religious schools.

Some 4,000 children in the program, which provides annual vouchers worth as much as $2,250, have been allowed to continue attending private schools at state expense pending the outcome of the legal challenge led by the major teachers’ unions. Some 96 percent of the voucher recipients attend religiously affiliated schools.

The ruling was appealed to the Supreme Court by the state of Ohio, which adopted the program in 1995, as well as by groups of voucher parents and private schools in Cleveland. The Bush administration filed its friend-of-the-court brief on June 22 supporting all three petitions.

Legal Evolution Seen

In his brief, the solicitor general stresses that the voucher program was designed to benefit children in poor-performing public schools in Cleveland, and that religious schools are among the options available to them. The brief argues that the Supreme Court’s case law on government aid to religion has evolved substantially since a New York state program of aid to private schools was struck down in 1973.

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

Voucher advocates welcomed the solicitor general’s involvement in the issue.

“The administration is putting action behind its verbal support for school choice,” said Clint Bolick, the litigation director of the Institute for Justice, a Washington organization that represents Cleveland voucher families in the case.

Mr. Olson is not the only prominent Republican to take a hand in the voucher case as supporters seek the high court’s review. Ohio state officials have hired former Whitewater independent counsel Kenneth W. Starr to lead the defense of the program. Mr. Starr, who could not be reached for comment, once argued in support of the Milwaukee voucher program before the Wisconsin Supreme Court.

Lawyers for the teachers’ unions and other voucher opponents have urged the justices not to accept the Cleveland case. The 6th Circuit’s ruling “scrupulously and faithfully follows this court’s teachings” and does not warrant review, said a brief by Robert H. Chanin, who as the general counsel of the National Education Association has led the legal fight against voucher programs.

A version of this article appeared in the July 11, 2001 edition of Education Week as U.S. Asks High Court To Review Voucher Case

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