by Rick Garnett *
On Friday, November 5, the Supreme Court issued a seemingly unremarkable
ten-line order in a case called Zelman v. Simmons-Harris. That short,
business-like ruling allowed nearly 4,000 low-income children in
Cleveland to stay in their chosen schools and might well prove to
be the most important decision of the year. Although the order creates
no doctrinal precedent and contains no headline-grabbing rhetoric,
it speaks volumes about the future of education reform and gives
hope to inner-city parents.
Strictly speaking, the Supreme Court merely "stayed"
the preliminary injunction entered by a federal trial judge in the
Cleveland school-choice case. The Court was not asked to decide
whether the choice program which permits parents of children
in Cleveland's troubled schools to select from among public, private,
or religious schools complies with the First Amendment. But
even anti-choice activists agree that the stay order sends a strong
signal that the Court plans to adhere to its recent rulings that
the Constitution requires neutrality, not hostility, toward religious
What is perhaps most striking about the order is that it was necessary
at all. The Ohio Supreme Court had already held last May that the
Cleveland program did not violate the First Amendment's "Establishment
Clause." Instead, that court concluded that the program conflicted
with a technical provision of state law, a defect the Ohio legislature
quickly fixed. But within a few weeks, in a display of shameless
forum-shopping, choice opponents decided to recycle in the federal
district court the same arguments the State's top court had rejected.
Just one month later, Judge Solomon Oliver blocked religious-school
participation in the choice program, holding that the voucher opponents'
challenge had a "strong likelihood of success" because
the "government cannot provide for scholarship assistance to
students which supports religious instruction or indoctrination."
Judge Oliver admitted that his decision, issued just 18 hours before
the new school year opened, would cause substantial disruption but
insisted there was "no substantial possibility that [he would]
ultimately conclude in their favor." In a nutshell, a life-tenured
federal judge ignored the considered judgment of Ohio's highest
court on the constitutionality of a duly enacted program designed
to serve some of the most needy of Ohio's citizens and stepped in
to second-guess state legislators' decision and derail the education
of thousands of children.
The pro-choice Institute for Justice appealed immediately to the
Sixth Circuit the court of appeals that reviews federal decisions
in Ohio but, after weeks passed with no word, the State of
Ohio asked the Supreme Court for an emergency "stay" of
Judge Oliver's ruling. On November 5, by a 5-4 vote, the Supreme
Court granted that request. On November 18, the Sixth Circuit finally
broke its silence, and said that given the Supreme Court's decision,
there was nothing for it to do.
What does the Supreme Court's order mean? Before taking the unusual
step of staying a trial judge's preliminary injunction, the Court
had to determine that the Establishment Clause challenge will probably
fail that is, that the State, not the choice opponents, enjoys
a "probability of success on the merits" _ and that the
stay was necessary to prevent serious harm to children. What's more,
the stay indicates not just that Judge Oliver got it wrong, but
also that the Court itself would likely take up the case if asked,
in the event Judge Oliver issues a final ruling that the choice
program is unconstitutional and that ruling is affirmed by the Court
of Appeals. Of course, the stay does not guarantee that the Court
will eventually uphold school choice, but it sends an unmistakable
signal that the crucial swing Justices _ Justices Kennedy and O'Connor
_ think Judge Oliver's breezy certainty that the choice program
"establishes" religion is unfounded.
But perhaps even more telling than the five Justices' vote to grant
the stay was the decision by the Court's four-Justice strict-separationist
bloc to record their disagreement with the majority's decision.
It is striking that those who seek to empower disadvantaged children
through choice are forced to read the tea leaves and hope that the
five Justices in the majority really believe what their votes imply,
while opponents of reform can rest assured that the "liberal"
wing of the Court is unswervingly committed to an extremist reading
of the Establishment Clause.
The high court's November 5 stay suggests that the slim five-Justice
majority that has in recent years adopted a neutral, rather than
suspicious, approach toward the participation of religious believers
and institutions in public life will hold together when the Court
considers, later this term, in Mitchell v. Helms, a constitutional
challenge to a federal program that permits school districts to
loan computers and other educational materials to religious schools
in low-income neighborhoods. It also provides a sound basis for
hope that, when the time comes, the Court will reject outdated suspicion
of parochial schools and misguided constitutional arguments and
will re-affirm that equal treatment of religion is not "establishment."
Just a few weeks ago, the Court refused to review a series of potentially
ground-breaking Establishment Clause and school-choice cases. Given
its decision last year not to address the Milwaukee voucher program,
most Court-watchers assumed _ perhaps correctly _ that the Court's
internal division had convinced the Justices on both sides to steer
clear of the voucher issue and, perhaps, to wait and see if the
next election promises changes in the Court's line-up. It appears,
though, that Judge Oliver's overreaching and the Sixth Circuit's
inaction may have forced the Court's hand.
NOTE: On December 13, the Supreme Court declined to hear the appeal
of pro-voucher parents and administrators in the Vermont case, Andrews
v. Chittenden Town School District.