Supreme Court Issues Landmark Ruling In Favor of School Choice
Heritage Foundation
6/27/2002

In a long-anticipated ruling, the Supreme Court today upheld the Cleveland school choice program against a federal constitutional challenge and made it extremely unlikely that any such challenge could prevail against similar choice programs in the future. In its landmark opinion, the Supreme Court removed one of the unfortunate obstacles that opponents of choice have attempted to use to stop the growing spread and success of choice programs nationwide. The high court ruled definitively that allowing parents to use state scholarships for private schools, even if they include religious schools, does not violate the Constitution.

The need for parental choice in schooling has never been greater. In many of America's large and medium-sized cities, the public school systems feature crumbling, violent, and academically abysmal schools. Poor families in these areas usually have no choice regarding their children's education because the kids are trapped in whatever failing and sometimes violent school to which they are assigned. The only hope for many such families is passage of an educational choice program that gives parents other schooling options in the short run and creates proper incentives for the public school system to improve in the future.

Unfortunately, the dream of giving poor parents a meaningful choice for their children is opposed by the prominent teachers unions and their ideological brethren, who fight tenaciously to protect the public monopoly. The teachers unions and their allies use a variety of false and emotional arguments against granting parents a choice, and they support endless and baseless legal challenges to any choice proposal that is advanced. In Ohio, the legislature overcame such obstacles and enacted an educational reform statute that gives poor parents a variety of choices whenever a school system has become so dysfunctional that the courts take it over for its failure to meet the basic educational needs of its students. Thus, the Ohio legislative choice program became available for parents in Cleveland, whose school system has been in judicial receivership for about seven years.

The Cleveland choice program authorized by the Ohio legislature provided increased spending for 23 new magnet schools and for new 'community schools,' which are similar to charter schools elsewhere. It also provided a stipend for many parents to employ tutors if they kept their children in their current schools. Finally, it provided 'choice scholarships' for some parents to help send their children to participating private schools or suburban public schools. When no suburban public school would accept the inner-city children, the parents who exercised this last option selected from a number of participating private schools, including non-sectarian schools, nondenominational religious schools, and religious schools of various denominations. (For more detail about the Cleveland program, see http://www.schoolchoiceinfo.org/.)

The National Education Association (NEA) and others opposed to giving poor parents any private school choice filed suit to kill this vital aspect of the legislative program. The NEA's principal argument was that if any parent was permitted to use the tuition assistance scholarship at a religious school that would amount to an 'establishment of religion' in violation of the First Amendment. Although federal courts have increasingly rejected this desperate legal gambit, the U.S. Sixth Circuit Court of Appeals ruled in favor of the NEA. The Supreme Court granted review, enjoined the Sixth Circuit's ruling, and today overruled that decision.

Today's landmark ruling lifts the cloud of litigation over the Cleveland school choice program and should also remove the threat of federal litigation from almost every other choice program that permits the parents to choose the school for their children. The Court ruled that when parents make the final choice, there is no reason for anyone to think the state endorsed that choice and, thus, no possible state 'establishment of religion.' The Court ruled that it did not matter that government indirectly facilitated a particular choice or indirectly aided a religious institution. Nor did it matter what percentage of parents might ultimately choose a religious school (even if it is 96 percent, as in the current Cleveland program), as long as the program involved 'true parental choice' and the choice plan was enacted for a valid secular purpose, such as improving educational opportunities for poor children.

[Candidate comment: The 'valid secular purpose' is to provide liberty and a publicly funded K-12 education to ALL children REGARDLESS of their economic status or the quality of their public school. To discriminate against any child because of who their parents are, or to discriminate against the taxpaying parents because they are not 'poor' is to make a mockery of School Choice. If this is the judicial catch-22 for the vast number of American parents and students who want a non-government school education, then this ruling is just more of the same assault upon hard working American families. If this is indeed a 'legal discrimination' based upon income, it will not stand.]