[1]WASHINGTON (BP)–The U.S. Supreme Court has cleared the way for nearly 600 new students to participate in a Cleveland education voucher program by blocking a federal judge’s injunction issued on the eve of a new school year.
Five justices agreed to a stay of the injunction against the Ohio city’s school-choice project, which includes religious schools, according to a Nov. 5 announcement by the high court. The stay will be in effect until the U.S. Sixth Circuit Court of Appeals makes a final decision on the appeal, according to the announcement.
Four justices made it clear they opposed the action. They were John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Those who supported granting the stay were Chief Justice William Rehnquist and Associate Justices Sandra Day O’Connor, Antonin Scalia, William Kennedy and Clarence Thomas.
On the day before Cleveland’s public schools were to open in August, federal Judge Solomon Oliver issued an injunction halting the city’s voucher program, saying it appeared to violate the constitutional clause prohibiting an establishment of religion. The timing caused turmoil for educators and for the families of about 3,800 students who were expected to use the vouchers. Oliver also said there was little likelihood he ultimately would rule in the program’s favor.
The four-year-old Cleveland program allows a low-income family to use a voucher of no more than $2,250 in state funds for tuition costs at the school of their choice, including a religious one. This year’s voucher recipients were expected to attend 56 private schools, many of them religious.
Three days after his original ruling, Oliver altered it, in the process allowing most of the children to remain in the voucher program. Oliver said he would permit students already in the program to use their vouchers during this semester. His decision meant nearly 600 new students accepted for the program would not receive vouchers, however.
Ohio Attorney General Betty Montgomery filed an emergency request with the Supreme Court to lift Oliver’s injunction.
Voucher supporters lauded the high court’s decision.
“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 Clint Bolick, litigation director of the Institute for Justice, a Washington-based organization that represents recipients of vouchers in court. “This is an early Christmas present for 3,800 kids who really need one. Now while this litigation proceeds, at least the kids’ education will no longer be at risk.”
Both supporters and opponents of vouchers were cautious about predicting the Supreme Court’s ultimate decision on the constitutionality of school choice.
“We don’t want to over-read this ruling, but it certainly is an optimistic sign for those who favor school choice,” Bolick said in a written release.
Barry Lynn, executive director of Americans United for Separation of Church and State, said the high court’s ruling “is not a hopeful development,” according to The Washington Times. He added, “But it should not be misinterpreted as a big Supreme Court victory for the voucher side. It may just be a signal to the Sixth Circuit to do something quickly.”
The high court has yet to agree to review an appeal of a voucher case.
Public support for education choice has grown in recent years, but it remains a divisive issue in America. Organizations espousing a strict separation between government and religion, such as Americans United, and teachers organizations, such as the National Education Association, are some of the most outspoken foes of school choice.
Southern Baptists increasingly have become supportive of education choice in recent years. Many Southern Baptists traditionally have opposed vouchers on church-state grounds, and now some oppose them not on that basis but out of concern for the religious school’s autonomy.
In a case testing a Wisconsin voucher program, the Ethics & Religious Liberty Commission, the Southern Baptist Convention’s church-state agency, signed onto 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.
When Oliver made his ruling in the Cleveland case, ERLC President Richard Land called the decision a “direct assault on the rights of parents and the rights of children and the best interests of children.”
The Baptist Joint Committee, the SBC’s church-state representative in Washington prior to the 1990s, has long maintained vouchers for religious schools violate the First Amendment’s establishment-of-religion clause.
Ohio’s Supreme Court declared the voucher program unconstitutional in May but not on church-state grounds. The court said the legislation establishing the voucher program was unconstitutional because it violated a state rule requiring only one subject per bill, but the justices said the program did not violate the separation of church and state.
The Ohio legislature took care of that problem this summer by passing new legislation funding the program.