Yesterday, the full U.S. Court of Appeals for the Sixth Circuit denied an en banc hearing petition, allowing last December’s 2-1 decision by a three-judge panel of the Sixth Circuit striking down the constitutionality of the Cleveland Scholarship Program to stand. The Sixth Circuit’s failure to take the case en banc was not unexpected, and a petition for U.S. Supreme Court review will now be prepared. The Orthodox Union, through its Institute for Public Affairs, welcomed this opportunity today.

There is now a clear split of authority among lower courts on the constitutionality of school choice; in fact, the Ohio Supreme Court and the Sixth Circuit have split on whether the Cleveland Scholarship Program is consistent with the First Amendment. This is also the first time that kids would have to leave their schools if the U.S. Supreme Court failed to take a school choice case. In 1999, the U.S. Supreme Court signaled its unwillingness to allow this to happen when they stayed by a 5-4 vote the injunction issued by Judge Oliver halting operation of the program.

OU Institute director, Nathan Diament, stated that “the time is ripe to settle the legal arguments surrounding school choice programs; it is time for America’s highest court to speak directly to this issue. While timing will not allow this case to be heard this term, we are confident that the high court will take this case for next fall’s term and clearly declare its view on this critical constitutional question. The Orthodox Union looks forward to participating in the appeal of this case.”