- The Washington Times - Tuesday, December 12, 2000

The U.S. Court of Appeals for the Sixth Circuit had a merry Christmas message for 4,000 poor students using Cleveland's school choice program yesterday: The voucher program which has allowed them to escape failing schools is unconstitutional. The majority opinion in the 2 to 1 ruling argued that because most of the schools accepting the vouchers in the Cleveland Scholarship Program are religious schools, the program should be struck down. With it, the court for the fifth year introduces uncertainty into the lives of the parents and children trying to lift themselves out of poverty through a better education.

The Sixth Circuit Court ruled yesterday that the program violated the establishment clause of the First Amendment to the Constitution, which says that "Congress may make no law respecting the establishment of religion." If the amount of the tax-supported vouchers was greater, the court ruled, the program could be constitutional. Because the program only provides $2,500 per child annually, the court said, it only attracts religious schools to the program.

There is no precedent for such a ruling. The court assumed religious schools, unlike public schools, would have other resources to draw from, said the Institute for Justice, which is defending Cleveland families using the vouchers. Faulting religious schools for their benevolence and resourcefulness is beyond ridiculous. It is establishing a precedent whereby the children who have already been abandoned in Cleveland's public schools are thrown once more back to the same bad schools.

"This case has Supreme Court written all over it," said Clint Bolick, who is the lead lawyer for the families in Cleveland's program. Before the children are forced out of their schools, the case will either be reheard by the Sixth Circuit Court or in the Supreme Court. "The courts will not allow 4,000 kids to be ripped out of their schools without first giving them a hearing."

If the program is finally struck down by the high courts, it could mean another major transition for families like Roberta Kitchen's, to which a chapter was devoted in school choice author Daniel McGroarty's upcoming book, "Trinnietta Gets a Chance." Two of her five children have used the Cleveland program. When asked by Mr. McGroarty what she would do if the higher courts upheld the ruling to strike down the program, she said: "I'd take a second job, and if that wasn't enough, I would quit my job and home school them. Private school is what's giving my children a chance. I have invested too much to let [the public schools] turn my children into something with a hole in it."

School choice critics are afraid that allowing more students to attend private schools will hurt the public school system. But public schools had already failed Miss Kitchen's children. Her daughter Tiffany, who had to face gangs in her public school every day, didn't have a decade to wait for the schools to fix themselves. The courts must rule in favor of the Cleveland Scholarship Program so that low-income students are not sacrificed on the altar of a failing public school system.

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