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Judge overturns Ohio vouchers; reversal of his decision predicted

WASHINGTON (BP)–A federal judge struck a blow against education choice when he declared a Cleveland voucher program unconstitutional, but a leading defender of school choice predicted the decision would be overruled.

Judge Solomon Oliver ruled the program, which permits vouchers to be used at religious schools, was a violation of the constitutional prohibition on government establishment of religion. It came as no surprise, because Oliver had said in an August injunction against the program there was little possibility he would eventually rule in its favor.

Despite Oliver’s opinion striking down the law establishing the voucher system, the 3,800 students receiving vouchers will continue in the program until the U.S. Sixth Circuit Court of Appeals issues its decision. Only days after blocking the program, Oliver revised his August order to allow the current students to continue in the program. That left about 600 new students without vouchers. In November, the U.S. Supreme Court blocked Oliver’s injunction, permitting the new students also to receive their vouchers and all the recipients to remain in the program until the appeals court rules.

Oliver’s Dec. 20 opinion “will be as short-lived as the injunction,” said Clint Bolick, litigation director of the Institute for Justice, a Washington-based organization that represents the Ohio program’s participants in court. “The U.S. Supreme Court has already rebuked Judge Oliver once. This ruling will also be overturned.”

Bolick promised a swift appeal to the Sixth Circuit and, if needed, to the Supreme Court.

“The kids deserve more than a lump of coal five days before Christmas,” Bolick said in a written release. “We’re not going to let the special-interest groups ruin their dreams.”

Teachers organizations and church-state separation organizations praised Oliver’s decision.

National Education Association President Bob Chase called it a “great victory for America’s children” in a written statement. Sandra Feldman, president of the American Federation of Teachers, went so far as to say the ruling “should make the voucher sideshow a fad of the past.” Feldman said in a written statement, “Ohio has wasted more than $20 million on vouchers for a handful of students.”

The four-year-old Cleveland program, which was established by the Ohio legislature, 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 its choice, including a religious one. This year’s voucher recipients attend 56 private schools, most of them religious.

The Supreme Court has yet to agree to review an appeal of a voucher case, but the Cleveland program could be the one the justices have been waiting for.

Four times in the last 13 months the justices have refused to review appeals of decisions on education choice.

In the most recent, the high court announced Dec. 13 it would not review a decision by the Vermont Supreme Court rejecting school district tuition payments to religious schools.

In October in a similar case, the Supreme Court refused to review lower-court opinions that held it is constitutional to exclude religious schools from a Maine tuition program that includes other private schools.

While the high court’s actions in those appeals would appear to reflect negatively on the potential for a favorable ruling toward education choice, the justices also have allowed to stand decisions supporting school choice.

Also in October, the Supreme Court announced it would not review an Arizona Supreme Court opinion upholding that state’s program permitting a tax credit of up to $500 for a donation to a school tuition organization, which grants scholarships to students attending private schools, including religious ones.

In November of last year, the high court declined a challenge to Wisconsin’s school-choice program, which is similar to Ohio’s. That state’s supreme court had upheld a plan that permitted children from low-income Milwaukee families to use vouchers at secular or religious private schools.

Public support for education choice has grown in recent years, but it remains a divisive issue in America.

Southern Baptists increasingly have become supportive of education choice. 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 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.

The Baptist Joint Committee on Public Affairs, 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.