The Court acknowledged that the context for enacting the school choice program is a major factor in whether or not the state acted within its rights, a point argued in the brief filed by the Center for Education Reform. Indeed, the majority opinion acknowledged that the Cleveland Scholarship Program was only one of a collection of education options available to parents ranging from open enrollment, to magnet schools, to charter schools, and even publicly-funded tutoring. Justice O'Connor emphasized that the Court must look at all options to determine whether the program is valid.

        The door is now open for other states to follow suit, and since Thursday’s ruling we’ve heard rumblings. (Link here for more about what choice advocates are saying across the states.) This decision will influence the reform efforts of thousands of individuals and groups nationwide that are working to change the way the U.S. delivers education, from that of one, centrally-driven school system, to that of a system of schools that responds first and foremost to families and children. Link here for more details on the ruling and the Cleveland choice program.

BLOB and OPPOSITION RESPONSE: When you throw open the doors to change, you can generally expect those in the entrenched positions to react negatively. We were not disappointed. Below is just a smattering of responses from the BLOB and their attendant supporters. (We never cease to be amazed by the lack of respect they give parents while revering a system that is continually failing our children.)

LEGAL ANALYSIS: Since the opposition has not seemed to grasp that their long-used rhetoric is now obsolete, below we provide a summary of the decision drafted by Robert Destro, one of the authors of CER’s amicus brief in this case: The United States Supreme Court was tasked with determining whether the Establishment Clause of the First Amendment prohibits Ohio's School Choice Program in Cleveland from allowing parents to use scholarships at any private school, whether religious or not. The majority opinion found that "neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion" are constitutional. The number of students who choose to use that assistance at a religiously-affiliated private school is irrelevant for constitutional purposes. The Court went on to hold that "[t]here is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing school system."

        Further, the Court determined that the Establishment Clause question "must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school." The Court also mentioned that "none of the dissenting opinions explain how there is any perceptible difference between scholarship schools, community schools, or magnet schools from the perspective of Cleveland parents looking to choose the best educational option for their school-age children. Parents who choose a program school in fact receive from the State precisely what parents who choose a community or magnet school receive – the opportunity to send their children largely at state expense to schools they prefer to their local public school."

        Finally, the majority determined that "[a]ny objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general."

        In a concurrence, Justice O’Connor stated that the "inquiry requires an evaluation of all reasonable educational options Ohio provides the Cleveland school system, regardless of whether they are formally made available in the same section of the Ohio Code as the voucher program." She insists that the facts are critical in cases arising under the Establishment Clause, saying that failing to look at all of the educational options is "to ignore how the educational system in Cleveland actually functions."

        In another concurrence, Justice Thomas stressed that "[t]he failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives. If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination's effects."

        In one of three dissenting opinions, Justice Stevens stated that the Court should ignore the three most compelling facts:

• The severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program:
• The wide range of choices that have been made available to students within the public school system, and
• The voluntary character of the private choice to prefer a parochial education over an education in the public school system.

        Justice Souter’s dissent focuses on his objection to the use of any public funds to support educational programs run by religious institutions. In his view, the Court is wrong when it focuses on all of the funds the State of Ohio makes available for public education as the backdrop for a decision on whether the program is "neutral" with respect to religion.

        Finally, Justice Breyer dissented to "emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict." In his view, the Court’s prior interpretation of the Establishment Clause "appreciated the religious diversity of contemporary American society." Link here for a more complete Decision Summary.

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Link here for full coverage and links on the U.S. Supreme Court Decision and the Cleveland Ohio School Choice Program.