Is the Writing on the Wall for School Choice?

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 schools.

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.


2001 The Federalist Society