Cleveland Voucher Case Appealed to U.S. Supreme Court

Published July 1, 2001

On May 23, Ohio Attorney General Betty Montgomery petitioned the U.S. Supreme Court to provide a definitive ruling on the Cleveland Scholarship Program where conflicting decisions have been handed down by the state supreme court and the federal Sixth District Court.

The next day, voucher families represented by the Washington, DC-based Institute for Justice, a public interest law firm, also filed an appeal requesting the high court to review and ultimately overturn a December 2000 decision of the Sixth Circuit Court of Appeals. That ruling found the program unconstitutional because of the predominance of religious schools among the educational institutions that chose to accept vouchers. However, the Sixth Circuit Court agreed to delay its decision until the U.S. Supreme Court decided whether or not to hear the case.

The U.S. high court voted 5-4 in November 1999 to stay an injunction against the program that had been issued by U.S. District Court Judge Solomon Oliver. Earlier in 1999, the Ohio Supreme Court had issued a decision upholding the same program on First Amendment grounds.

“This is the U.S. Supreme Court test case we’ve been waiting for to remove the constitutional cloud from school choice once and for all,” said Clint Bolick, the Institute’s lead lawyer for the school choice families. “This program provides a lifeline for children trapped in Cleveland’s tragically inadequate public schools.”

How inadequate are Cleveland’s public schools? Only one in 14 students in the city’s schools will graduate on time capable of reading and performing math at grade level; the high school graduation rate is less than 50 percent; and this year, the schools failed all but three of 27 of the state standards for student performance. Last year, they failed all 27.

The program directly impacts the education of almost 4,000 low-income Cleveland schoolchildren, with another 1,000 children scheduled to enter the program in the fall. Students are provided with annual vouchers worth up to $2,250 a year, or about one-third of what the city’s public schools spend per student. A majority of the Justices in the Sixth Court were troubled by the fact that no public schools chose to participate in the choice program, which meant the vouchers were redeemed mainly at religious schools since they formed a large majority of the schools that had chosen to participate.

“The U.S. Supreme Court has established a clear standard that when aid to students is allocated in a neutral manner and is available to both secular and religious schools, the program is constitutional,” noted David J. Owsiany, president of the Buckeye Institute for Public Policy Solutions, headquartered in Columbus. “The Cleveland plan meets the test set out by the U.S. Supreme Court in previous cases, so we can expect the Cleveland Scholarship Program to be upheld.”

David Zanotti, chairman of the School Choice Committee, also looked forward to the U.S. Supreme Court’s dismissal of “the inaccurate and politically motivated claims of the ACLU against this program and parental choice in education.”