Voucher supporters urge appeals court to stay Cleveland ruling

Thursday, August 26, 1999

A day after a federal judge stopped Cleveland's voucher program from operating, the Ohio Attorney General and a national nonprofit group favoring vouchers have called for an emergency review of the judge's decision.

In a 28-page opinion on Aug. 24, U.S. District Judge Solomon Oliver issued a preliminary injunction against the Cleveland Pilot Scholarship Program, which would have given close to 4,000 of the city's children vouchers to attend private schools, including religious ones. Oliver said that because the schools involved were overwhelmingly sectarian, the program had the “primary effect of advancing religion.” He also wrote that there “is no substantial possibility” that he would find the program constitutional.

Voucher supporters quickly derided the decision as harmful to students wishing to take part in the program, which began in 1995. Ohio's Attorney General filed a motion on Aug. 25 asking Oliver to stay his opinion as well as filing an appeal with the 6th U.S. Circuit Court of Appeals. Gov. Bob Taft issued a statement asking, “What possible harm would result from allowing these children to continue to attend school where they have been enrolled pending the resolution in this case?” In his ruling, Oliver said that failing to grant the injunction would be contrary to the law.

The Institute for Justice, a Washington, D.C.-based libertarian law firm that has been involved in voucher litigation nationwide, also filed motions with the 6th Circuit on behalf of Cleveland voucher families.

In their 13-page motion for a stay of Oliver's injunction, Institute for Justice lawyers argued that the scholarship and physical well-being of the voucher students had been placed in peril.

“Failure to grant this stay would force children to suddenly leave the schools they have attended for the last three years,” the institute's motion states. “At the very least, the injunction will subject these children to severe educational discontinuity. Most of these children will also be consigned to schools that are often unsafe and fail to adequately prepare them for the future.”

According to the Institute for Justice, many of Cleveland's public schools are fraught with “violence and disorder.”

“A comparison of the academic and crime statistics yields an ominous parallel: a student in a [Cleveland public school] has a slightly less than one-in-14 chance of graduating on time at senior-level proficiency, and a slightly greater than one-in-14 chance each year of becoming a victim of crime while in school,” the institute's motion says.

Steven Green, general counsel of Americans United for Separation of Church and State, which is one of the civil rights groups that has fought the voucher program since its inception, said that the federal judge's decision should not be stayed.

Green's group and several education groups argued in their motion that “fevered rhetoric” and “the great weight given to the imminent opening of the public schools” should not be allowed to outweigh the First Amendment principle of church-state separation.

“It is unfortunate that some students won't be able to attend the private schools this fall, but that risk has been there since day one and the parents who received vouchers had knowledge of the litigation,” Green said.

Judith Schaeffer, deputy legal director of People for the American Way, a Washington-based civil rights group, called Bolick's claim of potential physical harm to children 'inflammatory rhetoric' that an appeals court was not likely to consider as a basis for staying Oliver's ruling. Schaeffer said an appeals court probably would not stay a ruling that was based on Supreme Court precedent.

In 1973, the high court invalidated on religious-liberty grounds a New York tuition-reimbursement program that helped low-income families send their children to private schools, the majority of which were sectarian.