Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

Zelman v. Simmons-Harris concerned a taxpayer challenge to an Ohio program that provides publicly funded scholarships or ‘‘vouchers’’ for students to use at private religious and nonreligious schools. Plaintiffs alleged that the transfer of public funds to religious schools through vouchers violates the Establishment Clause of the First Amendment to the U.S. Constitution by funding religious instruction and worship. Lower federal courts struck down the program on Establishment Clause grounds, but the U.S. Supreme Court reversed, ruling that a neutrally designed voucher program survives constitutional scrutiny.

Zelman v. Simmons-Harris arose in 1996 after the Ohio legislature enacted the Ohio Pilot Scholarship Program to provide publicly funded vouchers for lower-income children in the city of Cleveland that could be used at qualifying private and public schools. Because no public school district chose to accept voucher students, the program resulted in the overwhelming bulk of the vouchers (96 percent) being used at religious schools, which at the time of litigation accounted for 82 percent of the participating private schools. Plaintiff taxpayers, represented by a coalition of education and civil rights groups including the National Education Association, the American Civil Liberties Union, Americans United for Separation of Church and State, and People for the American Way, initially challenged the program in state court, alleging violations to both the U.S. and Ohio Constitutions. After the Ohio Supreme Court struck down the program on state law grounds and the Ohio legislature reenacted a revised version of the program in 1999, the plaintiffs brought suit in federal court, prevailing on Establishment Clause grounds at the district court and court of appeals levels before losing at the Supreme Court.

The plaintiffs alleged that the Ohio Pilot Scholarship Program violated the Establishment Clause by providing public support for religious-based education at religious and parochial schools. They relied on various Supreme Court decisions from the 1940s to the1980s holding unconstitutional public support for educational functions of religious schools. In contrast, the State of Ohio and intervener parents, represented by the Institute for Justice, pointed to a more recent series of Supreme Court decisions upholding forms of indirect public aid for educational expenses that relied on the ‘‘private choices’’ of recipients to direct the public resources to religious schools.

A sharply divided Supreme Court ruled that the latter line of authority permitting indirect aid through private intermediaries controlled. Writing for a fivemember majority, Chief Justice William Rehnquist highlighted two factors as being crucial to its holding that vouchers for private religious schools do not contravene the Establishment Clause: program neutrality and private choice. First, the Court held that eligibility under the scholarship program, both as to participating schools and student eligibility, was religiously neutral, meaning that the program neither favored religion nor created incentives for religious use. Examining the face of the statute rather than its effect in application, the Court emphasized that the scholarship was part of a general undertaking to provide educational services, that it conferred its benefit to a broad class of individuals without reference to religion, and that it permitted participation of all schools within the Cleveland and adjoining school districts, public and private alike. As Chief Justice Rehnquist wrote: ‘‘[G]overnment programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge.’’

Second, the Court emphasized the element of private choice, finding that the public aid reaches religious schools only as a result of genuine and independent choices of private individuals.... Where a government aid program ... provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.

The Court found irrelevant the fact that 96 percent of the vouchers were redeemed at religious schools, holding that the ‘‘constitutionality of a neutral educational aid program simply does not turn on whether ... at a particular time, most private schools are [religious], or most recipients choose to use the aid at a religious school.’’ The Court found no evidence that the scholarship program failed to provide ‘‘genuine opportunities’’ for parents or coerced them into sending their children to religious schools.

Justice Sandra Day O’Connor, providing the crucial fifth vote for the majority, wrote a concurring opinion that disputed arguments by dissenting Justice David Souter that the aggregate amount of public funds flowing to the religious schools distinguished the case from earlier decisions upholding insubstantial amounts of aid. Justice Souter, writing a dissenting opinion for himself and three other justices, argued that the voucher program contravened the Establishment Clause by providing substantial aid to religious education and failing to offer truly genuine choices to eligible parents.

Zelman is a landmark case in religion clause jurisprudence on several levels. First, the decision authorized the use of publicly funded vouchers at private religious schools, a matter that had been highly controversial in education and legal circles for several decades. Although since 1983 the Court had intimated that programs providing aid based on neutral criteria and through private individuals were generally constitutional, the Court had never upheld such a large transfer of public monies for religious education. Furthermore, the earlier aid programs upheld had generally involved discrete forms of aid that had supplemented the secular side of religious school programs, rather than providing unrestricted aid that could be spent on religious education. For opponents of religious school funding, Zelman effectively undermined fifty years of Establishment Clause jurisprudence through the aegis of ‘‘private choice.’’

Equally as significant as the specific holding, Zelman indicated a dramatic shift in the Court’s religion clause jurisprudence away from a model of no-aid separationism to one of neutrality toward religion and religious institutions. Whereas for forty years the Court’s apparent motif had been to treat religion distinctively with respect to general government benefits and burdens, sometimes requiring exemptions for religion from government regulations while denying religion the benefits of government support, neutrality theory instructs that government is to treat religious institutions and motivations in an evenhanded manner with nonreligious counterparts. Although neutrality theory as the substitute to separationism had been on the ascent for the decade prior to Zelman, the decision solidified its dominant position with the Court.

STEVEN K. GREEN

References and Further Reading

• Agostini v. Felton, 521 U.S. 203 (1997).
• Bolick, Clint. Voucher Wars. Washington, D.C.: Cato Institute, 2003.
• Committee for Public Education v. Nyquist, 413 U.S. 756 (1973).
• Green, Steven K., The Illusionary Aspect of ‘‘Private Choice’’ for Constitutional Analysis, Willamette Law Review 38 (2002): 549–577.
• Jeffries, John C., and James E. Ryan, A Political History of the Establishment Clause, Michigan Law Review 100 (2001): 279–370.
• Lupu, Ira C., and Robert W. Tuttle. Zelman’s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, Notre Dame Law Review 78 (2003): 917–994.
• Mitchell v. Helms, 530 U.S. 793 (2000).
• Mueller v. Allen, 463 U.S. 388 (1983).
• Peterson, Paul E., ed. The Future of School Choice. Stanford, CA: Hoover Institution Press, 2003.
• Sugarman, Stephen D., and Frank R. Kemerer, eds. School Choice and Social Controversy: Politics, Policy, and Law. Washington, D.C.: Brookings Institution Press, 1999.
• Tushnet, Mark, Vouchers After Zelman, Supreme Court Review 2000 (2000): 1–39.
• Uderkuffler, Laura S., Vouchers and Beyond: The Individual as Causative Agent in Establishment Clause Jurisprudence, Indiana Law Journal 75 (2000): 167–191.
• Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986).
• Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).