High Court Lets Ohio Vouchers Proceed

The Supreme Court intervened in the disputed Cleveland voucher case Friday and cleared the way for more students to receive state tuition subsidies to enroll in religious schools.

The high court, acting on a 5-4 vote, overturned a federal judge’s order that blocked new students from taking advantage of the voucher program while the Cleveland case moves through the courts.

The emergency order sends another strong signal that the court’s conservative majority believes vouchers are constitutional.

The question of public aid for private schools is shaping up as a momentous dispute, not only before the Supreme Court but in next year’s presidential election.

Leaders of the “school choice” movement said Friday that they are heartened by the court’s intervention.

“We’re ecstatic. This is good news for the kids in Cleveland who can stay in school without fear they will be removed by an activist judge,” said Clint Bolick of the Institute of Justice, which represents parents who rely on the tuition subsidies.

He referred to U.S. District Judge Solomon Oliver Jr., who is presiding over the legal challenge to Cleveland’s program. On Aug. 24, the judge declared the voucher program unconstitutional and issued a preliminary ruling shutting it down.

Three days later, however, he reversed himself in part and said that the tuition subsidies could continue this fall for those students enrolled in private schools last year.

But he barred state aid for new students who were entering the program this fall, leaving about 500 children and their parents in limbo.

Ohio state lawyers asked the U.S. court of appeals in Cincinnati to lift Oliver’s order barring the new students, but the appeals court took no action.

Undeterred, the state lawyers decided to leapfrog the appeals court and went directly to the Supreme Court. They asked the justices to lift the injunction issued by Oliver.

Rarely does the high court intervene in a case that is currently before a judge, especially when an appeals court could take action.

But on Friday afternoon, the justices handed down a brief order that granted the state’s request and allowed state funds to flow to the 500 new students.

“This is the first time the current court has ruled in any fashion on a school choice program,” Bolick said. “So we are cautiously optimistic about what it means for the larger questions about vouchers.”

Opponents of public aid for private schools said they were dismayed by the court’s order but downplayed its significance.

“It’s not encouraging. I wish the Supreme Court would have left this alone,” said Elliot Mincberg, legal director of People for the American Way. “But it’s a limited order. It just allows the kids that were in the program this fall to continue.”

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called the order disappointing but said that it has “little significance in the ongoing battle over voucher aid to religious schools.”

“Eventually the justices will have to face the voucher issue squarely,” Lynn said, “and I believe at that time they will find this kind of tax aid to religious schools unconstitutional. Taxpayers must never be forced to pay for religious indoctrination.”

Under Ohio’s Pilot Project Scholarship Program, Cleveland parents with low incomes can receive up to $2,250 per year in state aid to pay the cost of attending a private school. State officials call the program, which currently subsidizes tuition for about 4,000 students, “one of the most significant experiments to have been implemented in the field of urban education.”

But critics say that nearly all the private schools benefiting from these subsidies are religiously affiliated.

On the political front, Texas Gov. George W. Bush and Republican lawmakers on Capitol Hill have proposed giving parents federal tuition vouchers that would allow more to choose private or parochial schools. They maintain that this would benefit children by allowing them to escape failing public schools.

Officials in at least half a dozen states are experimenting with voucher programs, including Florida under Gov. Jeb Bush, the Texas governor’s brother.

But Democratic lawmakers have sided with the teachers’ unions and civil liberties groups, which oppose vouchers. They say that scarce public funds should not be diverted to private schools. In court, they also argue that the 1st Amendment forbids direct public aid to religious schools.

In a series of recent rulings, however, the court’s conservative majority has allowed at least some public aid to flow to parochial schools. Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas have joined these rulings. All five signed Friday’s order.

Last year, the court in an unsigned order turned away a challenge to a similar voucher program in Milwaukee.

Four justices in official rulings have insisted on strict separation of church and state. All four dissented from Friday’s order. They are Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The Cleveland case likely will come before the court again, after the lower courts rule finally on its constitutionality.