WASHINGTON (BP)–A federal appeals court’s decision not to review a ruling against the Cleveland education voucher program has left the case on the doorstep of the U.S. Supreme Court.
The full Sixth Circuit Court of Appeals refused Feb. 28 to rule on a December decision by three of its members. The panel voted 2-1 to uphold a federal judge’s opinion the Cleveland Scholarship Program violates the separation of church and state, because most of the private schools in which vouchers are used are religious ones.
The Washington-based Institute for Justice, which represents five families participating in the Cleveland program, said it soon would ask the Supreme Court to accept the case.
“We are now only one step away from the definitive U.S. Supreme Court ruling on the constitutionality of school choice,” said Clint Bolick, the Institute for Justice’s litigation director. “If the Sixth Circuit’s decision is allowed to stand, almost 4,000 low-income kids will be forced to return to the failing Cleveland public school system. The Supreme Court should not allow that to happen, and we hope it will soon consider their plight.”
The high court appears unlikely to decide the case during this term, which ends in early summer. Its next term will not begin until October, after the start of the school year. The Institute for Justice has asked the teachers associations challenging the program to agree to a stay of the Sixth Circuit’s ruling until the Supreme Court decides the case, thereby allowing students to continue in the program. If the teachers groups do not agree, the institute expects to gain a court-ordered stay.
The National Education Association and American Federation of Teachers, the two largest teachers unions, hailed the Sixth Circuit action.
“It’s time to pull the plug on this wasteful program that has produced far more scandal than success,” said AFT Vice President Tom Mooney. “Time, resources and attention have been squandered on vouchers instead of investing in proven reform strategies in our public schools.”
Some high court observers believe the justices already have signaled in a variety of actions support for the constitutionality of vouchers. In this same case in 1999, the high court ended an injunction against the Cleveland program by a federal judge. Earlier, the justices declined to review a decision by the Wisconsin Supreme Court upholding a voucher program in Milwaukee that includes religious schools.
The Cleveland program, which was established by the Ohio legislature, permits a low-income family to use a voucher with a cap of $2,500 in state funds for tuition costs at the school of its choice, including a religious one.
In the Wisconsin case, the Southern Baptist Convention’s Ethics & Religious Liberty Commission signed on to a friend-of-the-court brief supporting the Milwaukee project. The brief argued the exclusion of religious schools from a voucher program for only secular private schools would constitute discrimination against religion, while inclusion of religious schools would not violate church-state separation.