Zelman v. Simmons-Harris
536 U.S. 639 (2002)
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Rule of Law:
A government aid program is not in violation of the Establishment Clause if it is neutral with respect to religion and provides benefits directly to a broad class of citizens who then exercise genuine and independent private choice in directing that aid to religious or nonreligious service providers.
Facts:
- The public schools in the Cleveland City School District were in a state of crisis, with the district failing to meet any of the state's 18 minimum performance standards.
- A Federal District Court had declared a 'crisis of magnitude' and placed the entire Cleveland school district under state control.
- In response, the Ohio legislature enacted the Pilot Project Scholarship Program to provide educational choices for families in the district.
- The program provided tuition aid (vouchers) to families, with priority given to those with low incomes, to attend a participating public or private school of their choosing.
- Participating schools could be religious or nonreligious private schools within the district, or public schools in adjacent districts.
- Aid was distributed to parents via checks, which the parents then endorsed to the school they selected for their child.
- The program also offered tutorial aid for students who chose to remain in their public schools.
- In the 1999–2000 school year, 82% of the participating private schools were religiously affiliated, and 96% of the students receiving scholarships enrolled in these religious schools.
Procedural Posture:
- A group of Ohio taxpayers, including Doris Simmons-Harris, filed an action in the U.S. District Court for the Northern District of Ohio against state officials, seeking to enjoin the scholarship program on the ground that it violated the Establishment Clause.
- The District Court granted the taxpayers a preliminary injunction barring the program's implementation.
- Subsequently, the District Court granted summary judgment for the taxpayers, finding the program unconstitutional.
- The state officials appealed this decision to the U.S. Court of Appeals for the Sixth Circuit.
- A divided panel of the Court of Appeals affirmed the District Court's judgment, holding that the program had the 'primary effect' of advancing religion.
- The U.S. Supreme Court granted certiorari to review the Court of Appeals' decision.
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Issue:
Does Ohio's Pilot Project Scholarship Program, which provides tuition aid for students in a particular school district to attend participating public or private schools of their parents' choosing, violate the Establishment Clause of the First Amendment?
Opinions:
Majority - Chief Justice Rehnquist
No. The Ohio program does not violate the Establishment Clause because it is a program of true private choice. The program is entirely neutral with respect to religion; it provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence, who are then free to exercise genuine choice among public and private, secular and religious options. Citing Mueller, Witters, and Zobrest, the Court reasoned that where government aid reaches religious institutions only by way of the deliberate, independent choices of individual recipients, the circuit between government and religion is broken. The fact that a high percentage of recipients choose religious schools is irrelevant, as the crucial question is whether parents have a range of choices, which they do when considering the entire educational landscape in Cleveland, including magnet and community schools. The program does not create financial incentives that skew the choice toward religious schools and is part of a broader, secular effort to remedy a failing school system.
Concurring - Justice O'Connor
No. This decision does not mark a dramatic break from the past, as significant government funds already flow to religious institutions through various tax exemptions and social welfare programs like Medicare and Pell Grants. The Court's application of the 'true private choice' inquiry is correct, and that inquiry should consider all reasonable educational alternatives available to parents, including community schools and magnet schools. When all options are considered, it is clear that Cleveland parents have a genuine choice among a variety of secular and religious schools, and the program is therefore constitutional. The record shows that parents and nonreligious schools view these different programs as reasonable alternatives.
Concurring - Justice Thomas
No. While the Ohio program is constitutional, the use of the Establishment Clause to constrain state educational reform is questionable. The Clause was originally intended to prevent federal, not state, interference with religion. It is a 'tragic irony' to convert the Fourteenth Amendment's guarantee of liberty into a prohibition on educational choice, especially for poor urban minority students who are failed by the public school system. School choice programs provide a means of 'emancipation' from these failing schools and are a constitutional way to provide greater opportunity.
Dissenting - Justice Stevens
Yes. The program is a law 'respecting an establishment of religion' because it authorizes the use of public funds for religious indoctrination. The educational crisis in Cleveland and the voluntary nature of the parents' choice are irrelevant to the constitutional question of whether the government may pay for religious education. Each time a brick is removed from the wall separating church and state, the risk of religious strife and the weakening of democracy increases.
Dissenting - Justice Souter
Yes. The program violates the core Establishment Clause principle from Everson that no tax can be levied to support any religious activities or institutions. The majority misapplies its own formal criteria of neutrality and choice. The program is not neutral because it provides substantially more aid for private school tuition ($2,250) than for public school tutoring ($360). The 'choice' is not genuine because of the scarcity of nonreligious private school options and a tuition cap that makes religious schools the only viable alternative for most families. The result is the systemic, large-scale public funding of religious indoctrination, which defies every objective of the Establishment Clause.
Dissenting - Justice Breyer
Yes. Publicly financed voucher programs pose an overriding risk of religiously based social conflict, which the Establishment Clause was designed to prevent. Funneling public money to religious schools for the core function of educating children will inevitably lead to strife, as different religious groups compete for funding and the state becomes entangled in adjudicating disputes over religious doctrine. Parental choice does not alleviate these problems of social divisiveness and entanglement. The decision turns back the clock on jurisprudence that correctly read the Clause as requiring separation between church and state to maintain social peace in a religiously diverse nation.
Analysis:
This decision solidifies the 'true private choice' doctrine as the controlling standard for indirect government aid programs under the Establishment Clause, significantly lowering the constitutional barrier for school voucher systems. The ruling shifts the constitutional focus away from the ultimate religious use of government funds and onto the neutrality of the program's structure and the genuineness of the choice afforded to individual beneficiaries. By holding that the high percentage of beneficiaries choosing religious schools is irrelevant so long as a real choice exists, the Court effectively limits the 'primary effect' analysis of prior cases like Nyquist. This precedent empowers states to enact similar voucher programs, potentially transforming the landscape of educational funding and the relationship between public funds and private religious education.
