As Summer Heats Up, School Choice Sizzles

By Clint Bolick

As the struggle over school choice moves closer to resolution by the U.S. Supreme Court, battles rage across the nation. Institute for Justice attorneys are deployed in five lawsuits in four states, all of which likely will see major action this summer. Recent skirmishes have yielded positive results. Here is the play-by-play:

Cleveland
The latest: IJ and the State of Ohio filed briefs in the U.S. Court of Appeals for the Sixth Circuit to overturn the ruling by federal district court Judge Solomon Oliver that the Cleveland scholarship program violates the First Amendment. Thanks to a decision by the U.S. Supreme Court last November staying Judge Oliver's injunction, the program remains fully operational. Meanwhile, the Cleveland Public Schools flunked all 27 of the State of Ohio's academic performance criteria, and the public high school graduation rate has slipped to 32 percent.

What's next: Oral argument in the Sixth Circuit in Cincinnati on June 20, with a rally set for the same day. A decision is expected by summer's close. This case is the best candidate for U.S. Supreme Court review.

Florida
The latest: On April 25, circuit court Judge L. Ralph Smith, who earlier had ruled that the opportunity scholarship program violates the educational uniformity guarantee of the Florida Constitution, refused to enjoin the program's expansion. IJ and Governor Jeb Bush's legal team are briefing an appeal of the earlier adverse ruling to the First District Court of Appeals for the State of Florida.

Meanwhile, a report by retired journalist Carol Innerst was released showing that public school districts with failing schools are taking major steps to improve the schools and forestall additional scholarships. The bottom line: competition works. The report, derived from data obtained by IJ from the school districts, was co-published by the Urban League of Greater Miami, Inc., The Collins Center for Public Policy, Floridians for School Choice, The James Madison Institute, and The Center for Education Reform.

Working with the American Education Reform Foundation, we have also helped organize Pensacola parents who are receiving scholarships to serve as advocates for the program.

What's next: Oral argument in the court of appeals in Tallahassee has been set for August 16, and we will help put together a rally the same day. This summer, the opportunity scholarship program will expand from two failing public schools and 52 students choosing private schools to dozens of failing public schools and thousands of eligible students. More than 130 private schools have signed up to accept scholarship students. We expect a court of appeals decision by late summer. Regardless of what happens, another injunction battle looms.

Illinois
The latest: On April 21 Judge Thomas Appleton of the Sangamon County Circuit Court in Springfield upheld the Illinois educational expenses tax credit against a challenge by the National Education Association and its cronies. That ruling accorded with an earlier favorable resolution in a lawsuit by the American Federation of Teachers. Meanwhile, thousands of families can claim state income tax credits for educational expenses incurred this year.

What's next: The plaintiffs in both cases have appealed. We are briefing the cases and await dates for oral argument.

Arizona
The latest: After losing in the Arizona Supreme Court on their First Amendment challenge to the Arizona tax credit for contributions to private scholarship funds, the American Civil Liberties Union filed a new lawsuit in federal district court in Phoenix. IJ moved to intervene on behalf of State Superintendent of Public Instruction Lisa Graham Keegan and scholarship-receiving families. Thousands of new scholarships have been created for youngsters to attend private schools.

What's next: This lawsuit is just getting underway. IJ awaits word on its motion for intervention.

Litigating school choice on multiple fronts is nothing new for IJ. Our goal is to get as many kids as possible into good schools-and help them stay there-while the lawsuits move toward the Supreme Court. So far, so good-but many challenges remain. The teachers' unions, ACLU, People for the American Way, and their allies are powerful foes. So far they have yet to wrench a single child out of a choice school-a record we hope and intend to preserve.

Clint Bolick is the Institute for Justice's litigation director.