Federal Judge Solomon Oliver Jr.'s latest ruling against the Cleveland voucher program was no surprise.  He demonstrated his aversion to school choice in the fall, when he tried to kill vouchers as school opened, stranding kids and families and drawing a rebuke from the U.S. Supreme Court.

Now he has struck down the program that allows some 3,700 poor families to send their children to religious or other private schools.  They get state vouchers to pay partial tuition at a school they choose.  But Judge Oliver said the plan amounts to government aid to religion that's unconstitutional.  Most private schools participating are religious.

The good news is that the ruling puts the Cleveland case on a fast track for a U.S. Supreme Court hearing that could settle the national voucher debate.  Next stop is the U.S. Sixth Circuit Couty of Appeals in Cincinnati.

The Supreme Court has been inconsistent on school-choice rulings.  Experts say the court is looking for the right case to address a variety of choice issues and that Cleveland is a contender.

Judge Oliver's decision ignores the practical reality that most of the alternative choices for Cleveland voucher students happen to be religious schools. None of the adjoining public schools will accept the meager $2,500 voucher, which is less than half what the state pays for students in Cleveland public schools.  The choice is made by parents, not the state.  Such vouchers no more violate the Constitution than federal Pell grants or the GI Bill for students and veterans who choose religious colleges.

The public appetite for school choice has grown along with increasing frustration at the academic failure of many public schools despite huge increases in spending.  School choice of all kinds--vouchers, tax credits, charters--has become an increasingly popular method to improve education.  Florida now has the first state wide voucher plan; Illinois has statewide school tax credits.  Milwaukee's 9-year old voucher program was upheld by the Wisconsin Supreme Court, since the money went to students and not directly to schools.  The U.S. Supreme Court declined to hear an appeal.

The bottled-up demand for choice was demonstrated in the tremendous response to the Children's Scholarship Fund created by Wal-Mart heir John Walton and financier Ted Forstmann.  The parents of more than 1 million low-income children (including many low-income children (including many in Cincinnati) applied for 40,000 partial vouchers for private and parochial schools.  These parents are seeking nothing more ideological than a decent education for their children, paid for with their own tax money.  Claims that vouchers will "destroy" public schools come mainly from teacher unions, an entrenched monopoly of mediocrity that fears competition.

Choice options are also getting serious attention in the pile of lawsuits demanding that states provide more "equitable" and "adequate" education systems.  The usual court and insider remedies--spend more on the same system--ignores the fact that money is a minor part of what produces successful schools.  Choice options, including vouchers, can give all students at all income levels access to better schools.

Whether or not they survive the legal assaults, the bold Cleveland and Milwaukee voucher experiments catalyzed a wave of similar options across the country.  School choice now has some traction.

The Victor Hugo notion fits: An invasion of armies can be resisted, but not an idea whose time has come.

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