Supreme Court's Cleveland school choice decision

2. Key issues. Among the most important features of this decision are: (i) the fact that the Court considered all of the educational options available to parents in Cleveland (i.e., regular public schools, charter schools, magnet schools, private nonreligious schools, private religious schools, and -- had they chosen to participate -- public schools in adjoining districts); and (ii) the Court's refusal to accept the idea that whether a school choice program is constitutional turns upon the percentage of children enrolled in religious schools.

3. Choice and neutrality. The specific question before the Court was whether Cleveland's voucher program had the impermissible "effect" of advancing religion. The Court clearly held that it did not. Instead, the Cleveland program "is part of a broader undertaking by the State to enhance the educational options of Cleveland's schoolchildren." Slip op. at 5. Choice opponents argued that because 96 percent of children using vouchers in Cleveland were enrolled in religious schools, the program was not neutral in its effect and in fact was designed to encourage parents to choose a religious option. The Court soundly rejected that argument, for several reasons. First, contrary to our opponents' arguments, the Court made clear that all of the educational options available to parents in Cleveland must be considered in determining whether parents selecting religious schools did so as a result of "true private choice." This means that the existence of alternatives such as tutoring assistance for public school children, magnet schools, charter schools and non-religious private schools must be considered. That is a crushing blow to our opponents because they basically built their entire argument on the premise that the scope of the relevant inquiry was limited to religious versus non-religious private schools. As IJ pointed out in its brief, and as Justice O'Connor particularly notes in her concurrence, only 16.5 percent of children exercising school choice in Cleveland (i.e., taking into account charter, magnet, religious and non-religious private schools) are enrolled in religious schools. Moreover, Chief Justice Rehnquist specifically notes the fact that the percentage of private schools participating in the Cleveland voucher program that are religious (82 percent) is virtually identical to the percentage of private schools that are religious in the whole state of Ohio. So it is nonsensical to argue, as did our opponents, that the Cleveland voucher program somehow discourages nonreligious private schools from participating.

4. Incentives. The Court also rejected the notion that the Cleveland voucher program provided an incentive for parents to choose religious schools. If anything, the program favors nonreligious options because it funds community and magnet schools at a much higher rate than voucher schools. Furthermore, all of the school choice options available to parents in Cleveland are free for them except for the voucher option, a portion of which they must pay for themselves. Accordingly, the program does not create an impermissible incentive for parents to choose a religious option, nor would any reasonable observer familiar with the context and history of the program perceive that it does. That means there is neither the reality nor the appearance of official government endorsement of religion.

5. Shifting percentages. The majority takes the dissenting justices to task for focusing on the fact that 96 percent of children using vouchers in Cleveland attend religious schools. First, as noted above, that figure improperly fails to consider the non-voucher school choice options. Second, the figure has changed over the years, and will almost certainly continue to change in the future. In footnote 5, Rehnquist specifically notes how nonreligious private school participation increased dramatically in Milwaukee once the court challenge there concluded.

6. Nyquist distinguished. Finally, the majority rejects the attempt to apply its 1973 Nyquist decision, which struck down a voucher-type program that was specifically designed to assist parochial schools in New York State. That program was open only to parents whose children were already enrolled in private schools, unlike Cleveland's program, which is open to all parents. Because the program at issue in Nyquist did not give all parents (i.e., public and private school) a free and equal choice between religious and nonreligious options, it was not a "true private choice" program. For the reasons stated above, Cleveland's program does offer true private choice, and that's why it does not violate the Establishment Clause.

7. Justice O'Connor. The main point here is that Justice O'Connor fully supports the majority opinion and simply writes on her own to underscore points (most of them very favorable to the pro-voucher position) that she considers particularly important. In fact, much of her concurrence is quite critical of Justice Souter's dissent.

8. In sum. The Court wrote in very broad terms, which means that states have broad discretion to craft programs that (i) direct funding based on true private choice; and (ii) include religious schools among an array of options. The decision also provides ammunition for our forthcoming attack on discriminatory state constitutional provisions (so-called "Blaine Amendments") in light of its emphasis on the principle of neutrality. Going into this case, we knew that a win could have broad or narrow impact, depending how it was written and how many justices signed on to it. In a word, the impact of this decision is huge.