Zelman v. Simmons-Harris

Summary Question

Does a program designed to rescue economically disadvantaged children from a failing public school system by providing scholarships that they may use in private, religious, or suburban public schools that choose to participate in the program - and which operates in the context of a broad array of public school choices - violate the First Amendment because in the early stages of the program most of the schools that have agreed to take on scholarship students are religiously affiliated?

Summary Answer

NO. Ohio’s voucher program is part of the state’s general obligation to provide educational opportunities to children. The purpose of the voucher is to fund a child’s education and the primary recipient of educational aid is the child. No funding reaches any private school unless and until a parent chooses the school as the best provider of education for the child. If the parent chooses a religious school, any appearance of religious endorsement is attributable to the parent. The state does not choose the school and therefore no claim can be made that the state participated in the parent’s independent decision. The parent may choose secular and religious options and there is no advantage to choosing one or the other except in terms of which school will provide the best fit for the child’s learning opportunity.

Litigation

The Ohio Supreme Court had previously struck down the Cleveland voucher program, Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999), ruling it was unconstitutional because the legislation adopting the voucher program violated the single subject rule. However, the court also held that the voucher program did not violate the state constitution’s compelled support or education clauses and did not violate the Federal constitution’s Establishment Clause.

Opposed to educational choice program:  ACLU of Ohio Foundation; American Jewish Committee; Anti-Defamation League; California Alliance for Public Schools; Council on Religious Freedom; NAACP Legal Defense and Educational Fund; National Committee for Public Education and Religious Liberty; National School Boards Association; Ohio Association for Public Education and Religious Liberty; Ohio Education Association; Ohio School Boards Association; People for the American Way

In support:  American Center for Law and Justice; American Civil Rights Union; American  Education Reform Council; Arizona Institute for Justice; Association of Christian Schools International; Becket Fund for Religious Liberty; Black Alliance for Educational Options; Catholic League for Religious and Civil rights; CATO Institute; Center for Individual Freedom; Christian Legal Society; Center for Education Reform; Center for Individual Freedom; Children First America; Claremont Institute Center for Constitutional Jurisprudence; Cleveland City Councilwoman Fannie Lewis; Coalition for Local Sovereignty; Gary E. Johnson, Gov. of New Mexico; Goldwater Institute; Hugh Calkins;  Ira J. Paul; Jesse H. Choper, et al.; John Coons and Stephen Sugarman; Milton and Rose D. Friedman Foundation; National Association of Independent Schools; National Jewish Commission on Law and Public Affairs; Pacific Legal Foundation; REACH Alliance; Mayors Rudolph Giuliani and John Norquist; Rutherford Institute; Solidarity Center for Law and Justice; State of Florida, and Alabama, Delaware, Nebraska, Pennsylvania, South Carolina, Virginia; State of Wisconsin; United States; United States Conference of Catholic Bishops; Vermonters for Better Education;

Outcomes

On June 27, 2002, the U.S. Supreme Court ruled that the Cleveland school voucher program does not violate the First Amendment of the U.S. Constitution; that vouchers are constitutional when parents have independent, private choice of schools without favoring or disfavoring religion. By design, the voucher program is “school neutral.”

Why it Matters

This case firmly established the constitutionality of the foundation of voucher programs – that funding flows from the state to a parent on behalf of the student. At that point when the parent controls the expenditure of that funding, the state has no role in determining whether the parent will choose to use funding at a religious or secular school. The funding then belongs to the parent and therefore choice of school rests squarely in the hands of parents. The state’s “role ends with the disbursement of benefits.” Zelman, at p 640.

Effects

The Zelman case has been good law since 2002. The case has been upheld and numerous state courts have relied on this case as they found vouchers to be constitutional. At the time this case was decided, 4,253 Cleveland students received vouchers; today, over 7800 students are using vouchers to attend the school of their choice.