Court Lifts Cloud over Cleveland

Published January 1, 2000

Responding to an October 28 request from Ohio Attorney General Betty Montgomery to take emergency action, the U.S. Supreme Court on November 5 voted 5-4 to stay an injunction against the Cleveland school choice program.

If the high court had not granted the stay, some 3,800 schoolchildren from low-income Cleveland families could have been denied any further use of vouchers at secular and religious private schools at the end of the current semester, midway through the school year.

“This is an early Christmas present for 3,800 kids who really need one,” declared Clint Bolick, litigation director for the Institute for Justice, the Washington, DC-based law firm that is defending the Cleveland Scholarship Program in court. “Now, while this litigation proceeds, at least the kids’ education will no longer be at risk,” he added, calling the decision “spectacular.”

David Zanotti, chairman of the School Choice Committee, agreed. “There is still justice in America,” he said, taking the decision as proof that “the American Civil Liberties Union cannot bully poor children and their parents forever.”

It was Federal District Court Judge Solomon Oliver Jr.’s August 24 response to a request from voucher opponents that vaulted the school choice issue into the lap of the U.S. Supreme Court in just three short months. On that day–just 18 hours before many Cleveland schools were to open–Oliver granted choice opponents their wishes and issued an injunction to immediately halt the Cleveland Pilot Project Scholarship Program. The four-year-old program allows parents to choose the school–public or private, including religious–that their children attend.

Although public outcry prompted Oliver to partially reverse his order three days later, this still left some 800 new students barred from using vouchers, and another 3,000 already in the program facing the possibility that the judge’s original injunction would again apply after only one semester. The U.S. Supreme Court’s stay means the Cleveland voucher students can remain in their chosen schools while the court battle continues and until the issues are resolved.

“This is an extraordinary action for the Supreme Court to take and it underscores how completely out of line Judge Oliver’s order was,” said Bolick.

The high court’s decision is unusual because the case is still at a preliminary stage of litigation. The U.S. Court of Appeals for the Sixth Circuit has not yet responded to Montgomery’s appeal of Oliver’s order.

Together with Institute for Justice President Chip Mellor, Bolick called the court’s decision “an extraordinary moment, as it is rare for the court to intercede in this fashion.” Calling the ruling “a big victory for kids,” they noted this is the first time the court has “spoken directly on the issue of school choice.”

Voting for the stay were Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. Voting to deny the stay were Justices Stevens, Souter, Ginsburg, and Breyer.

“We don’t want to over-read this ruling, but it certainly is an optimistic sign for those who favor school choice,” Bolick concluded.

The Cleveland Scholarship and Tutoring Program was started in 1995 and provides a voucher worth up to $2,250 per student, allowing children in low-income families to attend one of 56 private schools in Cleveland. The current year’s budget for the program is $11.2 million.

George A. Clowes is managing editor of School Reform News.