Other Court Action on School Choice

Published August 1, 2001

Ohio Attorney General Betty Montgomery in May asked the U.S. Supreme Court to review a 2-1 decision of the Sixth U.S. Circuit Court of Appeals finding the Cleveland school voucher program unconstitutional. The state Supreme Court had come to the opposite conclusion three years ago.

To assist in the appeal, Montgomery in June hired former Whitewater prosecutor Kenneth Starr, who was previously involved with the defense of the Milwaukee voucher program.

In an unexpected development on June 22, United States Solicitor General Theodore Olson filed a brief in the U.S. Supreme Court urging it to review the Appeals Court decision. The United States rarely files briefs urging court review of cases to which it is not a party.

The Supreme Court has declined review of other school choice decisions, but supporters believe the Bush administration’s action will boost their chances of Supreme Court review.

“The administration is putting action behind its verbal support for school choice,” said Clint Bolick, litigation director at the Washington, DC-based Institute for Justice, which has defended the Cleveland program and other school choice programs on behalf of parents and children.

More Victories in Illinois

On June 29, the Illinois Supreme Court refused to reconsider a ruling of the Fourth District Court of Appeals, which had upheld the constitutionality of the Illinois educational expenses tax credit law.

The law was under attack from the Illinois Education Association and its allies, who argued it violated four provisions of the Illinois Constitution, two of which deal with establishment of religion. Each of the courts to hear the case, however, has emphatically rejected those arguments.

“This is the sixth consecutive court to have upheld the constitutionality of this form of school choice,” said Chip Mellor, president of the Institute for Justice, which has been defending the tax credit law in court. “Today’s Illinois Supreme Court decision should bring an end to the constitutional battle over the tax credit law and help parents get the best possible education for their children regardless of whether the school of their choice is public, private, or parochial.”

Earlier in June, the Illinois Supreme Court also refused to hear a similar challenge to the tax credit law filed by the Illinois Federation of Teachers, who also challenged the constitutionality of the tax credit law. Since the plaintiffs did not raise First Amendment claims in either of the two cases, no appeal to the U.S. Supreme Court is possible.

Possible Conflict of Interest in Florida

After the Florida Supreme Court in April declined to review an Appeals Court decision upholding the state’s use of public funds for student tuition in private schools, the case reverted to Leon County Circuit Court Judge L. Ralph Smith for consideration of the remaining issues.

However, the Institute for Justice, which is defending the voucher program, learned Smith’s son had married the daughter of a high-ranking official of the Florida Education Association, which is one of the plaintiffs. The Institute filed a motion for Smith to recuse himself, but the Judge denied the recusal petition. His refusal has been appealed to the Court of Appeals.

Before Smith struck down the Opportunity Scholarship Program, the Institute for Justice had filed a recusal motion upon discovering that Smith’s son and the union official’s daughter were engaged. The Institute was forced to withdraw that motion when the teacher union submitted affidavits saying the daughter was not engaged to Smith’s son. Now those affidavits appear to have been false.