A federal appeals court last week was considering a request to lift the injunction that is blocking more than 800 new participants from receiving support under the Cleveland voucher program.
The legal skirmishing between voucher supporters and foes continued even as some 3,900 returning voucher students got a reprieve from the injunction, allowing them to continue attending private schools at state expense for this semester.
In a ruling that caused widespread confusion and anxiety in the city, U.S. District Judge Solomon Oliver Jr. issued an injunction Aug. 24 suspending the entire program. The judge said the 3-year-old program should be blocked pending the full consideration of its merits because it likely violates the U.S. Constitution’s prohibition against government establishment of religion.
Most of the participating private schools in Cleveland are religious schools, and thus the voucher program “has the primary effect of advancing religion,” the judge said.
But a few days later, on Aug. 27, Judge Oliver partially reversed himself. He said the timing of his initial injunction, one day before the start of the academic year in the Cleveland public schools, “caused disruption to the children previously enrolled in the voucher program.”
The judge said his injunction would not immediately affect students who were voucher recipients last year. He said they could continue receiving the aid for one semester, or until he hands down the final decision on the program’s constitutionality, whichever comes sooner. He has scheduled further proceedings for December. He refused to allow the 817 new voucher students to receive the state tuition support of about $2,250 per child.
The judge’s rulings “have been very disruptive,” said Sister Karen Somerville, the principal of St. Francis School, a Roman Catholic elementary school in Cleveland that enrolls 114 voucher recipients.
“At a time when we should be thinking about getting the school year off to a good start, we’ve had to deal with this issue,” said Sister Somerville, adding that 25 of the school’s voucher students remain in limbo because they are new to the program this year.
But voucher opponents weren’t apologizing for any problems resulting from their attempts to shut the program down.
“If there is any fault, it lies with the Ohio legislature,” said Michael Simpson, the assistant general counsel of the National Education Association, one of the groups challenging the program. “Instead of adopting this stopgap voucher program, it should enact some meaningful reforms for the Cleveland public schools.”
Challenges Elsewhere
The tempest in Cleveland shows that the new school year will be another contentious one for private school vouchers.
Last year, the pioneering Milwaukee voucher program opened up to religious schools for the first time after years of court challenges. The U.S. Supreme Court last fall declined to review a Wisconsin Supreme Court ruling upholding the expansion.
But elsewhere, two state supreme courts and one federal appeals court rejected attempts to expand small voucher programs in Maine and Vermont to include religious schools. And in Ohio, the state supreme court last spring held that even though the Cleveland program passed muster under the U.S. Constitution, its enactment as part of a large budget bill had violated the state constitution.
The legislature reauthorized the program this summer. That led to the new challenge, this time in federal district court, by the NEA, the American Federation of Teachers, People for the American Way, Americans United for Separation of Church and State, and other anti- voucher groups.
Those groups have also challenged a new Florida program, which got under way last month by providing aid to 136 students from two Escambia County elementary schools that the state considers failing. The program could eventually provide vouchers to students from any failing public school statewide.
Voucher opponents opted not to seek an injunction against the Florida program, preferring to concentrate their efforts on the trial phase of their case.
Legal Motions
Judge Oliver’s original injunction prompted angry responses from Republican candidates on the presidential campaign trail.
Gary Bauer, who is on leave from his position as the head of the Family Research Council to seek the 2000 gop nomination, said Judge Oliver was relying on “arcane constitutional theories in a way that is very detrimental” to voucher families.
Gov. George W. Bush of Texas and another Republican contender, magazine publisher Steve Forbes, also criticized the ruling by Judge Oliver, who was appointed to the federal bench by President Clinton in 1994.
Even in partially lifting his injunction, Judge Oliver said he stood by his preliminary legal analysis that the voucher program violates the Constitution.
Both the Ohio attorney general’s office and the Institute for Justice, a Washington organization that represents voucher families as intervenors in the lawsuit, filed emergency motions asking the U.S. Court of Appeals for the 6th Circuit to lift the rest of the injunction and allow all voucher students to receive state aid this school year.
Sister Somerville of St. Francis School remained hopeful that all voucher students could receive aid while the legal issues were debated. “I just wonder,” she said, “if Judge Oliver ever had to say to a 5-year-old, ‘No, you can’t have the voucher. You can’t go back to that school.’”
