Four thousand kids participating in a Cleveland voucher program will have to return to public schools if a December ruling by a federal appeals court in Cincinnati sticks. Most of the families in the pilot program have enrolled their children in religious schools, allowing the plaintiffs—a collection of voucher opponents, including the Ohio Federation of Teachers—to argue that the program steps over the line separating church and state.
On its face, the case suggests grim prospects for the program. But school choice advocates plan to appeal to the Supreme Court. In the words of Matthew Berry of the Institute for Justice, the public-interest law firm that is defending the Cleveland plan, "This very well may be the case that determines the constitutionality of vouchers."
That's assuming, of course, that the Supreme Court agrees to hear it. If it does, Berry's clients have good reason for optimism. Previous cases suggest that the justices interpret the First Amendment as simply requiring the state to remain neutral toward religious schools—a test the Cleveland program clearly meets.
In November, the justices voted 5-to-4 to grant a stay letting the program continue while the matter moves through the legal system. According to Berry, the earliest we're likely to see the case before the Supreme Court is October.