Judge Voids Cleveland Vouchers for Lack of Choice

Published February 1, 2000

There was only one catch and that was Catch-22.

Joseph Heller’s WWII: You could get out of flying more combat missions if you were crazy, but if you wanted to get out then you couldn’t be crazy and so you had to keep flying missions.

Judge Oliver’s Cleveland: You could use a voucher to get out of the public schools if you had a choice of religious and secular schools, but if the public schools wouldn’t participate in the voucher program then you didn’t have an adequate choice of secular schools and so you had to stay in the public schools.

Just a few days before Christmas, U.S. District Judge Solomon Oliver Jr. converted his temporary order banning the Cleveland scholarship program into a permanent one, ruling that the program violates the Establishment Clause of the U.S. Constitution.

However, because the U.S. Supreme Court in November stayed Oliver’s earlier order, voucher students can remain in their chosen schools while his decision is appealed to the U.S. Court of Appeals for the Sixth Circuit and, as is likely, to the U.S. Supreme Court.

“The kids deserve more than a lump of coal five days before Christmas,” said Clint Bolick, litigation director for the Institute for Justice, which is representing parents of children receiving the scholarships. Vowing to appeal the ruling, Bolick said, “We’re not going to let the special interest groups ruin their dreams.” Ohio Attorney General Betty Montgomery also said she would appeal the decision.

Oliver’s December 20 ruling represents a bewildering Catch-22 for Cleveland parents who thought the school choice program was intended to get their children out of the city’s failing public schools and into an alternative school. But since suburban public schools refused to participate in the program, the choice of alternative schools available to parents is limited to only 56 private schools, which–like private schools nationwide–are predominantly religious.

Oliver ruled that this mix did not give parents a real choice, and that the program constituted financial support of religion, in violation of the U.S. Constitution.

“Although the Voucher Program lists several adjacent school districts as eligible schools, none have registered for the Program,” noted Oliver, claiming that “the court is obligated to consider only registered schools, not eligible schools.” Since “parochial schools overwhelmingly predominate” among these registered schools–over 82 percent are religiously affiliated–he viewed the program as providing parents with few “genuine nonreligious options.”

“Because of the overwhelmingly large number of religious versus nonreligious schools participating in the Voucher Program, beneficiaries cannot make a genuine, independent choice of what school to attend,” declared Oliver. “A program that is so skewed towards religion necessarily results in indoctrination attributable to the government and provides financial incentives to attend religious schools.” He concluded, “For both of these reasons, the court finds the Program to be in violation of the Establishment Clause.”

In effect, the ruling means that parents who want to transfer their children out of Cleveland’s failing public schools cannot use the voucher program to do so, as successful public schools have refused to provide an adequate secular option in the choice program. If allowed to stand, Oliver’s ruling will give public schools the power to invalidate any future school voucher program simply by declining to participate in it, thus ensuring that the mix of alternative schools available to parents is predominantly religious.

Not surprisingly, choice opponents hailed the decision. Robert Chanin, general counsel for the National Education Association, called the decision “comprehensive and well-reasoned.” NEA president Bob Chase said it was “a great victory for America’s children,” noting that 90 percent of America’s children are served in public schools.

Bert L. Holt, former program director for the Cleveland Scholarship and Tutoring Program, said one of her major startup initiatives was to encourage superintendents in the suburban school districts to participate in the program. According to Holt, those superintendents were primarily concerned that the voucher program did not provide enough money to accompany the children. The districts would have received their usual per-pupil state aid payment in addition to the voucher.

“I tried to encourage them to think about having a few children,” she said. “I told them it would certainly enrich their schools to have children with different languages and different cultures, since their schools in general were very insular.”

While Holt expressed disappointment that the suburban districts chose not to participate in the voucher program, she suggested part of the reason was a lack of encouragement from legislators, civic leaders, and educators. Noting that the teacher unions were very much opposed to the idea of public money going to private schools, she questioned why the suburban teachers as a group did not offer a public school alternative to voucher parents by saying, “We would like to see these children come into our schools.”

“That would have been absolutely a coup,” said Holt.

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

For more information …

Judge Solomon Oliver Jr.’s 61-page decision is available on the Internet at http://www.ohnd.uscourts.gov/.