Supreme Court lifts injunction against Cleveland voucher program

Monday, November 8, 1999

The U.S. Supreme Court has voted to suspend a preliminary injunction blocking the funding of Cleveland’s embattled voucher program.

On Nov. 5, the high court took a rare action and voted to set aside a preliminary injunction issued by a federal judge in August against the funding of the Cleveland Pilot Scholarship Program. Without comment, the high court voted 5-4 to lift U.S. District Judge Solomon Oliver’s pretrial ruling in Simmons-Harris v. Zelman.

Oliver ruled in Simmons-Harris that the Cleveland Pilot Scholarship Program, which grants tax-supported assistance to 3,000 students to attend private schools, might violate the establishment clause of the First Amendment. The voucher program was challenged earlier this year by a coalition of civil liberties groups, representing taxpayers, who say the program violates the separation of church and state by using government funds to pay for student tuition at parochial schools.

Ohio Attorney General Betty Montgomery quickly appealed Oliver’s ruling to the 6th U.S. Circuit Court of Appeals. When the appeals court failed to act on her appeal, Montgomery asked the high court two weeks ago to lift the injunction. The high court’s action stays Oliver’s injunction “pending final disposition of the appeal by the United States Court of Appeals for the Sixth Circuit.”

The court’s conservative justices, William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas, voted to restore the vouchers. Voting to deny the stay were the court’s more liberal members — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The Institute for Justice, a Washington, D.C.-based libertarian law firm that has supported voucher programs nationwide, lauded the high court’s action.

“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, the Institute for Justice’s litigation director, in a prepared statement. Bolick added that the court’s action would permit Cleveland students to use vouchers to attend private schools while the federal courts examine the constitutionality of the voucher law.

Vouchers have been deemed unconstitutional in Maine, New Jersey, Pennsylvania and Vermont. The Supreme Court, however, has chosen not to review state supreme court opinions out of Arizona and Wisconsin that upheld voucher programs on constitutional grounds. The high court’s action in the Cleveland voucher situation may signal that the court is preparing to face the issue.

Barry Lynn, executive director of Americans United for Separation of Church and State, said that while he was disappointed in the high court’s action, he believed that ultimately voucher programs would be found unconstitutional by the high court.

“Eventually the justices will have to face the voucher issue squarely,” Lynn said. “I believe at that time they will find this kind of tax aid to religious schools unconstitutional. Taxpayers must never be forced to pay for religious indoctrination.”