Supreme Court lifts restrictions on Cleveland voucher program

Order lets student aid continue while issue moves through courts

November 06, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- In the first significant test of the Supreme Court's reaction to school vouchers, the justices voted 5-4 yesterday to allow a voucher program in Cleveland to continue for now.

The order clears the way for students to use public money to pay tuition at religious and nonreligious private schools in Cleveland, while constitutional challenges continue in lower courts.

About 3,800 students there receive such aid.

Yesterday's order is likely to have the practical effect of keeping the Cleveland program intact for several more months and perhaps through the end of this school year.

The program provides up to $2,500 a year for each student to attend a private school. Four of every 10 schools taking part are affiliated with religious institutions.

Though the court's action was not a final ruling to uphold the constitutionality of vouchers for use at parochial schools, it was a sign that a majority of justices are unwilling to stop schools from experimenting with such assistance while lower courts review the constitutional controversy.

The order temporarily blocked an August decision by a federal judge in Cleveland. The judge had barred new students from receiving vouchers this year, on the theory that the entire program is likely to be struck down when a final ruling on its constitutionality is issued later.

The judge, Solomon Oliver Jr., allowed 3,214 students who had received vouchers during the past school year to continue to do so, so as not to disrupt their school life. He said he would permit those students to receive the aid only through the end of this semester.

In the meantime, he planned to hold a trial on the constitutionality of the program.

But Oliver barred an additional 587 students new to the program this year from receiving vouchers while the case is pending.

Supporters of school vouchers have appealed Oliver's decision to the 6th U.S. Circuit Court of Appeals, based in Cincinnati. The Supreme Court lifted Oliver's ban on new student aid and his one-semester limit on continuing student aid until the appeals court has ruled. That could take several months.

Before yesterday, the only action the Supreme Court had taken on the vouchers issue was to refuse to hear three separate appeals on that issue and to turn down a fourth appeal involving tax credits for private school scholarships.

Clint Bolick, litigation director for the Institute for Justice, a legal advocacy group that is supporting school voucher programs in several states, said: "This is the first time the Supreme Court has ruled on school choice in any manner. We take it as an optimistic sign."

Though he cautioned that the court's action should not be interpreted too broadly, Bolick said it seemed to suggest that a court majority was expressing doubt that the challengers will ultimately persuade the court to strike down vouchers.

Barry W. Lynn, executive director of Americans United for Separation of Church and State, an advocacy group that opposes aid to parochial schools in general, interpreted the court's action as an effort to "err on the side of letting these kids go to school" while the constitutional dispute over vouchers goes on.

He called the ruling procedural only, saying he did not read it as an indication of how the justices will vote when they directly address the constitutional issue.

The order allowing the Cleveland program to continue was supported by Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas -- the five justices who have voted most often to allow closer government-religion relations.

Dissenting were Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens, who typically vote against government support of religious institutions.

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