Furor Over Cleveland Voucher Ruling

Published October 1, 1999

Bowing to the tidal wave of negative public reaction generated by his decision to deny scholarship funds to almost 4,000 children from poor families in Cleveland on the day before school started, U.S. District Court Judge Solomon Oliver Jr. days later scaled back his order to apply to only 587 children new to the program this fall.

While the judge’s reversal allowed 3,214 scholarship students to return to the private schools they had attended last year, Oliver warned the stay is good for only one semester, raising the prospect of further disruption in the middle of the school year.

“This is a huge victory for the kids, but only a partial victory,” declared Clint Bolick, litigation director for the Institute for Justice, the Washington, DC-based law firm defending the Cleveland Scholarship Program in court.

“This outrageous injunction threw the city and thousands of children into chaos. We’re glad the court heard the public outcry, even though it hasn’t completely corrected its grievous error,” he added.

Oliver, a Clinton appointee, said he recognized that his original ruling has “caused disruption to the children previously enrolled in the program beyond that normally associated with a student’s transferring from one school to another.”

Ohio legislators approved the scholarship program for low-income families in Cleveland four years ago, providing vouchers worth up to $2,250 for families to use for tuition at private secular and religious schools. While the program is popular with parents and has grown from 2,000 to over 3,800 students, it has been whipsawed by almost constant disparagement and legal challenge from opponents:

  • After the first scholarships were awarded in January 1996, the American Federation of Teachers challenged the constitutionality of the program in the Court of Common Pleas.
  • In July 1996, Judge Lisa Sandler ruled the program did not violate the Ohio or U.S. Constitutions.
  • On appeal, the Tenth Ohio District Court of Appeals ruled in May 1997 that including religious schools in the program violated both state and federal constitutions.
  • On appeal, the Ohio Supreme Court ruled on May 27 this year that the program did not violate the constitutional separation of church and state; however, the court invalidated the program because of a legislative error.
  • On June 24, lawmakers reauthorized the program.
  • On July 20, opponents filed a lawsuit in federal court to halt the program immediately, alleging that it violated the separation of church and state.
  • On August 24, Oliver ruled to halt the program immediately, then partially reversed his decision a few days later and set a trial date of December 13.

In its May 27 ruling, the Ohio Supreme Court found that the voucher program simply makes benefits available to certain children to attend an alternative school. Any link between government and religion arises only as a result of the “genuinely independent and private choices” of parents, said the court, concluding, “there is no credible evidence in the record that the primary effect of the School Voucher Program is to advance religion.”

In his August 24 ruling, Oliver came to just the opposite conclusion about the program by focusing on participating schools rather than on students. Since the participating schools are overwhelmingly sectarian, he argued, “parents cannot make an educational choice without regard to whether the school is parochial or not.” Therefore, he concluded, “the Cleveland Program has the primary effect of advancing religion.”

“Failing to grant the injunction under such circumstances would not only be contrary to law, but could cause an even greater harm to the children by setting them up for greater disruption at a later time,” he declared, ordering an immediate halt to the voucher program.

Opponents of the scholarship program cheered the judge’s ruling, saying little about the plight of the 4,000 students whose education they had abruptly disrupted. The National Education Association hailed the decision with a news release, “NEA Wins Ohio Voucher Victory.” Ohio Education Association President Michael Billirakis praised the injunction as “good for public education,” adding that the union’s “primary concern has always been that vouchers take away from public schools.”

“This is a victory for everyone who cares about our children,” exulted People for the American Way President Carole Shields. Other groups lauding the decision were the American Federation of Teachers, Americans United for the Separation of Church and State, and the National School Boards Association, which represents the 95,000 elected board members of local public schools.

Although voucher school officials sought to allay the fears of families affected by the ruling, the uncertainty created by Oliver took its toll and caused some parents to withdraw their children from choice schools and enroll them in public schools. But most voucher families were angered by the turn of events and vowed to do whatever was necessary to keep their children in the private schools.

“I’ll work 10 jobs before I send [my son] to the public schools,” house cleaner Maria Silaghi told New York Times reporter Dirk Johnson. Daniel Spurgeon and Jim Staples both said they would work two jobs to keep their children in private schools. Chris Suma said she would sell the family van to raise the tuition money to keep her children in parochial school, according to the Cleveland Plain Dealer.

Editorial writers took up the angry parents’ cause, and several public officials also weighed in against Oliver’s order. (See accompanying article, “Reactions to Judge Oliver’s Ruling”) After four days, Oliver decided to put most of his ruling on hold. The Sixth U.S. Court of Appeals in Cincinnati also is reviewing a request to overturn the ruling.

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

For more information …

on the Cleveland voucher program, use PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot icon, and search for old documents #2184317 “An Evaluation of the Cleveland Program After Two Years” (3 pp.); #2184820 Simmons-Harris v. Goff excerpt (11 pp.); and #2184339 “Yes, Vouchers Are Constitutional” (9 pp.).