WASHINGTON — The 3,700 students enrolled in Cleveland's landmark school voucher program have a powerful new ally in their fight against the teachers' union: The U.S. Department of Justice.
The program suffered a setback last year when the Sixth Circuit Court of Appeals ruled that Ohio's Pilot Project Scholarship Program “clearly has the impermissible effect of promoting sectarian schools” and was thus unconstitutional. Ninety-six percent of the students enrolled attended religious schools.
In a brief filed in late June, Solicitor General Ted Olson said it was in the “nation's interest” for the Supreme Court to hear the case.
Lawmakers need to “know, without further delay, whether such programs are a constitutionally permissible option for expanding education opportunity for children enrolled in failing public schools across America, or whether other solutions must be sought for this critical national problem.”
It is unusual for the solicitor general's office to file a Supreme Court brief until the judges agree to hear a case. The Bush administration's action invigorated the hopes of school reformers that the Supreme Court would give vouchers a constitutional green light.
“The Bush administration is right to get involved with the Cleveland school voucher case,” said David J. Owsiany, president of the Buckeye Institute, an Ohio-based public policy think tank.
Last year's federal court's decision, Owsiany told the Register, “puts in jeopardy a program that has given 4,000 Cleveland-area school children hope for a quality education in one of the worst-performing school districts in the country.”
Owsiany predicted an education renaissance would be sparked by a positive verdict from the Supreme Court.
“By accepting this case and upholding the Cleveland school voucher program,” he said, “the court will be removing a significant obstacle to school vouchers and will reenergize the voucher movement in Congress and state legislatures.”
Meanwhile, the National Education Association, which has long opposed vouchers, said the Justice Department should keep out of the fight over the Cleveland program.
“This extreme step is clearly out of step with what the American public wants for children and public education,” said Becky Fleischauer, a National Education Association spokeswoman.
National exit polls, she said, showed public opposed to vouchers 78% to 12%, preferring smaller public school classes and modernized equipment instead.
“This is reflected in the current education bill, which was stripped of vouchers in both the House and Senate,” she said. “The White House appears poised to shun the will of voters and Congress. This is extremely disappointing.”
But the administration's opinion on vouchers shouldn't surprise the National Education Association, say Bush administration officials.
“Secretary [Rod] Paige and President Bush have both been strongly and consistently supportive of private school choice,” Lindsey Kozberg, an Education Department spokeswoman, told the Register.
“Although we did not prevail on this issue in the current legislation, we have every hope that legislation providing for private school will be adopted in the future,” she said. The administration, Kozberg added, “will continue to support the expansion of parental options.”
Winning this case might encourage more opportunities for parents, said Notre Dame Law professor Richard Garnett.
“These experiments have been hamstrung because local governments are worried about its constitutionality,” Garnett told the Register. “They always say, ‘Well, you know that vouchers violate the separation of church and state.’ But if the Supreme Court says they're constitutional, that becomes a tough argument to make,” Garnett said.
Vouchers have faced many political obstacles, he said.
“We need the Supreme Court to uphold vouchers so that local communities will be free.” He said the administration's action “shows Bush is committed to school choice as a part of education reform.”
For Garnett, the fundamental legal question in the case revolves around who best represents the child's interest.
“Who owns your child's mind: The state or your family?” asked Garnett. “It doesn't get much bigger than that.”