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As the Senate prepares to debate education reform this week, the fight over school vouchers is likely to be as much symbol as substance. Democratic resistance will be strong, so it’s unlikely President George W. Bush’s voucher program will make it through Congress intact. Even if Republicans get everything Bush wants, federal education funding will never be enough to help poor parents pay private school tuition. But no matter what happens on Capitol Hill, the fight over school choice is far from over. With Bush naming allies to every level of his administration, voucher proponents feel confident that the issue will remain a top priority. And advocates on both sides are already gearing up for what could be a seminal showdown: a Supreme Court case deciding whether a Cleveland voucher program including religious schools violates the First Amendment separation of church and state. A victory for vouchers would lift a legal cloud that has hampered the movement for decades. As the debate converges on Washington, an unlikely coalition of school choice supporters — conservative policy wonks and low-income, urban parents — is also descending on the nation’s capital, to push its agenda with the voucher-friendly administration. “The realm of the possible has expanded,” says Clint Bolick, litigation director of the pro-voucher Institute for Justice. “I’m not terribly optimistic we’re going to see much out of Congress this session. But we’ve finally got a president who is going to support school choice any chance he gets.” COURTROOM PRESS For years Bolick and a clique of Washington lawyers — including many who now hold prominent positions in the Bush administration — have, in courtrooms across the country, aggressively pressed for vouchers. The opposition — teachers unions and liberal interest groups such as the ACLU, the NAACP, and People for the American Way — has shot back at every opportunity, often relying on establishment clause arguments. Many in the “voucher bar” view a recent decision by the 6th U.S. Circuit Court of Appeals striking down a Cleveland voucher program as a prime test case for Supreme Court review. “Whenever you’ve got a federal court striking down a state statute, you’ve got a great candidate for certiorari,” says Richard Garnett, a voucher supporter and constitutional law professor at the University of Notre Dame. “I think they’re going to take it, and they’re going to reverse it,” Garnett adds. There are, of course, no guarantees. The Ohio solicitor general’s office and the Washington, D.C.-based Institute for Justice, which represents five families as intervenors in Simmons-Harris v. Zelman, plan to file certiorari petitions in late May. The state has spoken with former Independent Counsel Kenneth Starr about working on the case, but no final decision regarding outside counsel has been made. Robert Chanin, general counsel for the National Education Association (NEA), a plaintiff in the suit challenging Cleveland’s voucher program, notes that the justices declined to review a Milwaukee voucher case in 1998 that many speculated they would take up. But lawyers for both sides say the facts of the Cleveland case have the right ingredients for intervention. “The conventional wisdom is that the case will be taken up by the Supreme Court,” says Chanin, a partner with D.C.’s Bredhoff & Kaiser. Cleveland’s voucher program, providing up to $2,250 of tuition assistance to low-income children, was enacted in June 1995 and took effect in fall 1996. The first publicly funded voucher plan to include religious schools, the Cleveland Scholarship and Tuitioning Program survived challenges launched in state court by the NEA and the American Federation of Teachers. In May 1999, the Ohio Supreme Court determined that the program did not violate the state or federal constitutions. As the program entered its fourth year, 96 percent of the nearly 3,800 students using vouchers were enrolled in religious schools. Voucher opponents filed a second suit in federal court attacking the program on the grounds that the flow of public funds to religious schools violated the establishment clause of the First Amendment. Just days before the start of school, U.S. District Judge Solomon Oliver found the program unconstitutional and halted its operation. Oliver later revised the injunction to apply only to new participants, but in November 1999 the U.S. Supreme Court intervened, lifting the injunction and allowing the program to continue in its entirety. Then in December 2000, the Cleveland program was again overturned on First Amendment grounds by a three-judge panel of the 6th Circuit. A request for en banc review was denied earlier this year. In addition to the split between the state and federal courts, voucher advocates point to the Supreme Court’s earlier intervention as a strong sign that it may enter the dispute. “One of the factors in considering a stay is the likelihood that the Court will review the case,” Bolick says. “It’s not a sure thing, but we do have a snapshot of the Court where it seems to be indicating it will take up the case.” If the Supreme Court does hear the case, the critical vote for both sides will lie with Justice Sandra Day O’Connor. In two recent cases, O’Connor has sided with conservatives in decisions whittling away at the establishment clause arguments made by voucher opponents. “The Court has been very proactive in the area of aid to religious schools in recent years,” Bolick says. “It’s impossible to read recent precedent and think the Court will issue a broad ruling against school choice.” But voucher opponents point out that in each of the recent cases the Court has stopped short of overturning its ruling in the landmark 1973 case of Committee for Public Education and Religious Liberty v. Nyquist, which struck down school vouchers. “As we read case law, Nyquist remains vital and healthy. The Court has had every opportunity to overturn it and they haven’t,” says David Strom, a staff attorney at the American Federation of Teachers. Still, even NEA lawyer Chanin concedes his side faces an uphill battle. “I wouldn’t presume to predict how the Court would rule. We know there are at least four votes that have made it clear in other contexts they would support vouchers,” he says. “If the Court reverses Nyquist it will be a momentum boost for people who support vouchers, but it will not end the legal battle,” Chanin adds. “If we lose, we will continue to challenge these programs on state constitution or any other grounds available to us.” A PUBLIC EDUCATION Outside the courtroom, arguments are already being made. One of the most vocal groups has been the Black Alliance for Educational Options, launched in August 2000 by Howard Fuller, director of the Institute for the Transformation of Learning at Marquette University in Milwaukee. The organization, funded in part by the conservative Bradley Foundation, has been airing television ads in the D.C. area portraying the parents of voucher students talking passionately about their positive experiences. “We were trying to get prepared for whichever administration came into power,” says Fuller. “Our objective was to put a new face on what school choice really means.” Later this year, the group plans to relocate its headquarters from Milwaukee to Capitol Hill. The NAACP and leaders in the African-American community have traditionally aligned with liberal Democratic groups in opposing school vouchers. To some, the aggressive attempt to now frame vouchers as a civil rights issue seems disingenuous. “It’s a sham,” says one lawyer for the teachers unions. “In the end, the people they purport to help are those who most need resources to remain in the public school system.” Milwaukee’s Valerie Johnson, who put five children through private Catholic school with assistance from the city’s voucher program, disagrees. “Public schools are failing our children,” Johnson says. “I’m a taxpayer. Why shouldn’t I have the option of sending my kids to a school where they will have a chance to learn?” Having an ally in the White House may help voucher proponents in their push to change the tenor of the school choice debate. This month the president addressed voucher advocates and met with a group of school choice leaders in the Oval Office. “One of the benefits of having a president who supports school choice is he can use the White House and his position to demonstrate why this is an important long-term goal,” says Stuart Butler, vice president of domestic and economic policy studies for the Heritage Foundation. What role, if any, the Bush administration will play in Cleveland’s appeal to the Supreme Court remains to be seen. Bolick hopes Theodore Olson, Bush’s pick for solicitor general, will get involved after his confirmation, supporting the petition for certiorari and possibly even making oral arguments if the case is taken up. Lawyers for both sides expect the Justice Department to submit briefs in support of the Cleveland program. “All the legal minds kicking around in the administration come at the problem thinking these programs are constitutional,” points out Notre Dame’s Garnett. In fact, before being named deputy solicitor general, then King & Spalding D.C. partner Paul Clement worked pro bono on an amicus curiae brief to the 6th Circuit backing the Cleveland program. Other active voucher supporters appointed to high-level positions in the Bush administration include Undersecretary of Education Eugene Hickok, a former chairman of the pro-voucher Education Leaders Council; Jay Lefkowitz, general counsel of the Office of Management and Budget who defended Florida’s voucher program as a partner in the D.C. office of Chicago’s Kirkland & Ellis; and Nina Shokraii Rees, an education adviser to Vice President Dick Cheney and an influential researcher and writer on school choice. “I think based upon the position of the administration, you’ll have a very different brief from the Justice Department than you would have had five years ago,” Chanin says. “I would like to believe political tides won’t make a difference to the justices.” Of course, when it comes down to it, any action by the Senate, the Supreme Court, or even President Bush will have only an indirect impact. The real fight over vouchers takes place at the state level, where the majority of education funding is controlled. A favorable ruling from the Supreme Court, however, would place a powerful arrow in the pro-voucher quiver. “From a federal perspective, it would create a constitutional safe harbor, but its importance would be even bigger than that,” says Bolick. “Constitutional concerns are often raised in legislative debates at the state level. Those concerns will evaporate if the Court rules in our favor.”

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