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The Bush Administration has signaled that it is going to defend school choice in the nation’s courts. Solicitor General Ted Olson filed a friend-of-the-court brief, urging the United States Supreme Court to hear one of the three remaining cases about Cleveland, Ohio’s voucher program.
The move is a bold one, and a court victory would be certain to expand the nation’s growing voucher programs. Cleveland allows parents to use vouchers to send children to private, even religious schools. Opponents of school choice have objected, calling such measures violations of the Constitution and an unlawful promotion of religion.
Bush campaigned for school choice last year. And he introduced a modest voucher plan in his “No Child Left Behind” education bill. But conservatives grew concerned when the House and Senate stripped vouchers from his education bill and the president did not fight to restore them.
“It is morning in America again,” said Mark R. Levin of the Landmark Legal Foundation, a public interest law firm fighting for school choice. “The left claims to represent the interest of the poor and children. But every day they take affirmative steps to deny so many of them an opportunity to succeed. Public education is where the battle needs to be fought.”
The Ohio Pilot Project Scholarship Program is an ideal test, both in court and in the media. Cleveland’s vouchers are designed to give low-income children options to escape failing schools. In 1995, a federal court ordered the district be taken over by the state superintendent – Cleveland’s public schools met none of the 18 minimum standards. And just 9 percent of ninth graders could even pass all four parts of the Ohio proficiency test.
Yet, the 6th Circuit Court of Appeals struck down the voucher program, saying that it violates the First Amendment’s ban on government establishment of religion. In a bizarre twist, the court determined it was a violation because “the great majority of schools benefited by these tuition dollars are sectarian.” The reason? The court said that because the vouchers were limited, private nonsectarian schools were priced out of the market.
In other words, because public schools couldn’t perform and religious schools were cheaper than ritzy private schools, it appeared the program was funding religion.
Olson argues, however, that the program is constitutional because it does not specify which schools kids must attend. That is left up to the private decisions of parents.
“All private schools are eligible to participate in the program, without regard to whether they are sectarian or not,” the government argued. “Religious schools may benefit under the program only as a result of the independent and private choice of parents to enroll their children in a participating religious schools.”
From the beginning, the most vehement critics of school choice have feared an outright test of school choice in the U.S. Supreme Court, preferring to carefully argue cases in an effort to contain any victory at the state level.
The Supreme Court has also shied away from any broad decisions, but has upheld the program in Milwaukee, Wis. That’s why the solicitor general wants a decision.
“It is in the nation’s interest,” said Olson, “that that clear conflict be resolved by this court, so that policymakers may know without further delay whether such programs are a constitutionally permissible option for expanding educational opportunity for children enrolled in failing public schools across America.”
The solicitor general pointed out that tax dollars already go to sectarian groups for fully endorsed causes such as child care, provision of social service, and educational IRAs.
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