Federal judge alters order, allows some vouchers to remain in effect

Monday, August 30, 1999

Slightly modifying an injunction against the Cleveland voucher program, a federal judge has said that some students will be able to attend sectarian schools at least for a semester.

Late on Aug. 27, U.S. District Judge Solomon Oliver issued a modified stay of his Aug. 24 injunction, saying students who were enrolled in the Cleveland Pilot Scholarship Program last year could receive taxpayer-funded grants to attend religious schools this fall. New participants in the program — about 587 — will not be eligible, the judge ruled.

Oliver said his modification is good only for the first semester or until he renders a final decision on the program's constitutionality. The judge reiterated his belief that the voucher program advances religion and that there was “no substantial possibility” that he would find the program constitutional.

Oliver wrote that he decided to modify his injunction because “of the timing of the events.” Oliver's Aug. 24 injunction came hours before the school year started. Nonetheless, he defended his initial ruling.

“It should not be surprising that Plaintiffs' challenge came near the end of July or that the court's ruling came on August 24, 1999,” Oliver wrote in his modification. “A ruling close to the beginning of school or after school started was inevitable in light of the late date on which the bill authorizing the 1999 Pilot Program was passed. This timing caused disruption to the children previously enrolled in the Program beyond that normally associated with a student's transferring from one school to another.”

Saying that a speedy resolution was called for, Oliver set a trial for Dec. 13. In late July a group of Cleveland parents represented by civil rights and education organizations sued the state over the use of tax dollars to fund vouchers to enable students to attend private schools, including religious ones.

Matthew Berry, a staff attorney for the Institute for Justice, a D.C.-based libertarian law firm that has defended the Cleveland voucher program, derided Oliver's latest ruling as “self-serving” and woefully inadequate for the Cleveland students. Berry's group had not only asked Oliver to stay his ruling, but also filed an appeal with the 6th U.S. Circuit of Appeals.

“We believe the action is a partial victory and are happy for the over 3,000 kids that for now will be able to continue their schooling,” Berry said. “But the order is not good enough and continues to put the education of Cleveland kids in jeopardy and that is why we are pursing an emergency stay with the 6th Circuit.”

Oliver's injunction is pending with a three-judge panel of the 6th Circuit, which could issue an opinion at any time.

Berry also criticized Oliver's claim that the Cleveland voucher program advanced religion.

“He simply does not understand the program,” Berry said. “Schools get state aid regardless of their mission. The fact that a majority of schools participating in the program are religious is irrelevant, because the program treats religious and nonreligious schools the same.”