- The Washington Times - Friday, March 2, 2001

A federal appeals court in Ohio has declined to rule on the constitutionality of the Cleveland school-voucher program, setting the stage for a Supreme Court review of the case.

The 13-member panel of the U.S. Court of Appeals for the 6th Circuit refused on Wednesday to take up the issue of whether the Cleveland Scholarship Program violates the establishment clause of the First Amendment governing the separation of church and state, prompting attorneys representing five voucher families to announce plans to take their case to the high court.

The court's decision let stand a 2-1 December ruling by a three-judge panel from the 6th circuit that struck down the voucher program as unconstitutional.

Bob Chase, president of the 2.6 million-member National Education Association (NEA), the nation's largest teachers union, hailed the Ohio court decision.

"I think it's the right decision. I think that the program should be ended. The courts have spoken," said Mr. Chase.

He said he hoped the court's move signaled to the Bush administration and to other school-choice proponents that vouchers were out of step with public opinion and the law.

"Every time voters have had an opportunity to vote on this issue, they have rejected it," Mr. Chase said. "With the court's declaring it unconstitutional and voters saying this is not what we want … I would hope that what we would do is continue to move forward and focus on what works," in public education.

Clint Bolick, litigation director for the Institute for Justice in Washington, which represented five Cleveland voucher families in the case, said the appeals court's decision was not unexpected and set the stage for the Supreme Court to rule definitively on the constitutionality of school choice.

"If the 6th Circuit's decision is allowed to stand, almost 4,000 low-income kids will be forced to return to the failing Cleveland public school system," he said. "The Supreme Court should not allow that to happen, and we hope it will soon consider their plight."

The Cleveland program, which began five years ago, provides $2,500 vouchers for about 4,000 low-income students in kindergarten through sixth grade to attend 56 participating private and mostly religiously affiliated schools. In December, a three-judge panel from the 6th Circuit ruled 2-1 against the program, saying it was an unconstitutional violation of separation of church and state. That decision was in conflict with a ruling from the Ohio Supreme Court in May 1999, which declared the citywide voucher program constitutional but struck it down on a technicality in state law.

Across the nation, lower courts have been divided on school-choice cases. Taxpayer-funded school-choice programs are in place in the cities of Milwaukee and Cleveland and the state of Florida, where Republican Gov. Jeb Bush has made them a part of his education accountability plan.

The Bush administration continues to promote school choice as both a motivation and a consequence for schools that chronically fail to educate children, although key congressional Democrats have said they will not support vouchers as a part of new education legislation.

A ruling from the high court, say proponents of school choice, would clear up the voucher issue once and for all.

"This is it," said Mr. Bolick, who is optimistic the Supreme Court will agree to hear the case. "We are raring and ready to go."

It is unlikely, however, that the high court could take up the Cleveland voucher case until its new term, which begins the first week of October. Because classes in Ohio will begin before the court's next session, Mr. Bolick said, he will ask attorneys from the American Federation of Teachers and the NEA to agree to a stay of the program that would allow it to continue into the new school year.

"We are focusing our attention on making sure that the program is not disrupted in the fall," Mr. Bolick said. "If we cannot get a stay, then technically, the program is no longer authorized and stays shut down."

An 11th-hour ruling by U.S. District Judge Solomon Oliver Jr. threw Cleveland's voucher students and public schools briefly into chaos in August 1999. The judge, a Clinton appointee, ruled just 18 hours before the first day of classes that the voucher students would have to return to public schools.

The decision prompted massive public outcry and sharp criticism for his poor timing. The Supreme Court, in a 5-4 ruling on an emergency petition filed by Ohio Attorney General Betty D. Montgomery, voted to stay the injunction issued by Judge Oliver and let the program continue until the full 6th District appeals court could rule.

"We do not want to see that happen again," Mr. Bolick said. "The unions should leave the kids alone while the lawyers litigate. We hope that they will put kids first for once."

Mr. Chase, however, said he is not inclined to agree to such a request, although he said he has not yet discussed Mr. Bolick's proposal with the NEA's attorneys.

"At the end of the school year, the program should be ended and they should move toward putting into place those programs that we know work," Mr. Chase said.

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