Supreme Court Says School Vouchers Are Constitutional

Supreme Court Says School Vouchers Are Constitutional … even if religious schools are the primary

Supreme Court Says School Vouchers Are Constitutional … even if religious schools are the primary beneficiary—Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002)

Article summary. The United States Supreme Court ruled that a state program that provided low-income parents with vouchers that could be used to enroll their children at secular and religious private secondary schools did not violate the first amendment’s “nonestablishment of religion” clause since the aid was being directed to the parents, who in turn could apply it in any manner they chose. The Court noted that “three times we have confronted establishment clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.” This article will review the facts of the case, summarize the Court’s decision, and then address the relevance of the case to church leaders.


There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families have the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland’s public schools have been among the worst performing public schools in the nation. In 1995, a federal court declared a “crisis” and placed the entire Cleveland school district under state control. The state auditor found that Cleveland’s public schools were in the midst of a “crisis that is perhaps unprecedented in the history of American education.” The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation. Of those students who managed to reach their senior year, one of every four still failed to graduate. Of those students who did graduate, few could read, write, or compute at levels comparable to their counterparts in other cities.

Against this backdrop, Ohio enacted a Pilot Project Scholarship Program. The program provides financial assistance to families in any Ohio school district that is or has been “under federal court order requiring supervision and operational management of the district by the state superintendent.” Cleveland is the only Ohio school district to fall within that category.

The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent’s choosing. Second, the program provides tutorial aid for students who choose to remain enrolled in public school.

tuition aid

The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. Any public school located in a school district adjacent to the covered district may also participate in the program. Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student. All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent.

Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. For these lowest-income families, participating private schools may not charge a parental co-payment greater than $250. For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap. These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate. Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents, who then endorse the checks over to the chosen school.

tutorial aid

The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the state for payment. Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to students enrolled at participating private or adjacent public schools.

popularity of the program

The Pilot Project Scholarship Program has been in operation within the Cleveland City School District since the 1996-1997 school year. In the 1999-2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998-1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the 1999-2000 school year.

legal challenge

In 1996 a group of Ohio taxpayers challenged the program in state court on state and federal grounds. The Ohio Supreme Court rejected all federal claims, but held that the enactment of the program violated certain procedural requirements of the Ohio Constitution. The state legislature immediately corrected this defect, leaving the basic provisions discussed above intact.

In July of 1999, taxpayers filed a lawsuit in federal court claiming that the program violated the “nonestablishment of religion” clause of the first amendment. A federal district court, and federal appeals court, concluded that the program was unconstitutional. The case was then appealed to the United States Supreme Court.

the Court’s ruling

Three (3) prior cases

The Court began its opinion by noting that the nonestablishment of religion clause “prevents a state from enacting laws that have the purpose or effect of advancing or inhibiting religion.” Since the taxpayers who were challenging the voucher program conceded that it was enacted for the valid secular purpose of providing educational assistance to poor children in a failing public school system, the only remaining question was whether the program had the forbidden “effect” of advancing or inhibiting religion. In answering this question, the Court noted that “our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” The Court observed that while its rulings addressing the constitutionality of direct aid programs has “changed significantly over the past two decades,” its ruling addressing “true private choice programs” has remained “consistent and unbroken.” It noted, “Three times we have confronted establishment clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.” Those three cases are summarized below.

(1) Mueller v. Allen, 463 U. S. 388 (1983). In Mueller, the Court rejected an establishment clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tuition costs, even though the great majority of the program’s beneficiaries (96%) were parents of children in religious schools. The Court found that because the class of potential beneficiaries included all parents, including parents with “children [who] attend nonsectarian private schools or sectarian private schools,” the program was “not readily subject to challenge under the establishment clause.” Then, viewing the program as a whole, the Court focused on the principle of private choice, noting that public funds were made available to religious schools “only as a result of numerous, private choices of individual parents of school-age children.” This insured that “no imprimatur of state approval can be deemed to have been conferred on any particular religion, or on religion generally.” The Court concluded that it was irrelevant that the vast majority of beneficiaries were parents of children in religious schools, saying: “We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law.” That the program was one of true private choice, with no evidence that the state deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the establishment clause.

(2) Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986). In Witters, the Court used the same reasoning it applied in the Mueller case to reject an establishment clause challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor. Looking at the program as a whole, the Court observed that “any aid … that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.” The Court further noted that “as in Mueller, the program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited.” In light of these factors, the Court ruled that the program was not inconsistent with the establishment clause.

(3) Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993). In Zobrest, the Court applied Mueller and Witters to reject an establishment clause challenge to a federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools. Reviewing its earlier decisions, the Court stated that “government 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.” Looking at the challenged program as a whole, the Court observed that it “distributes benefits neutrally to any child qualifying as disabled.” Its primary beneficiaries, the Court concluded, were “disabled children, not sectarian schools.” The Court further observed that “by according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents.” The Court’s focus once again was on “neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools.”

The Court summarized these three prior rulings as follows:

Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and 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. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. As a plurality of this Court recently observed: “If numerous private choices, rather than the single choice of a government, determine the distribution of aid, pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment.” It is precisely for these reasons that we have never found a program of true private choice to offend the establishment clause.

The Court made the following comments to support its conclusion that the Cleveland tuition aid program was constitutional:

[The Cleveland tuition aid program] “is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools. There are no “financial incentives” that “skew” the program toward religious schools. Such incentives “are not present … where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school’s tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. Although such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program “creates … financial incentives for parents to choose a sectarian school.”

public perceptions

The Court rejected the argument that the Cleveland program creates a “public perception” that the state is endorsing religious practices and beliefs, noting simply that “we have repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement … . Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general.”

range of choices

The Court also rejected the argument that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. The Court observed,

Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the establishment clause. The establishment clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.

preponderance of religious schools

The Court then addressed the fact that the vast majority of students who received aid under the program attend religious schools:

Cleveland’s preponderance of religiously affiliated private schools certainly did not arise as a result of the program; it is a phenomenon common to many American cities. Indeed, by all accounts the program has captured a remarkable cross-section of private schools, religious and nonreligious. It is true that 82% of Cleveland’s participating private schools are religious schools, but it is also true that 81% of private schools in Ohio are religious schools. To attribute constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school-choice program might be permissible in some parts of Ohio, such as Columbus, where a lower percentage of private schools are religious schools, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens to be greater. Likewise, an identical private choice program might be constitutional in some states, such as Maine or Utah, where less than 45% of private schools are religious schools, but not in other states, such as Nebraska or Kansas, where over 90% of private schools are religious schools.

The taxpayers who were challenging the Cleveland program similarly claimed that the Court should attach constitutional significance to the fact that 96% of scholarship recipients enrolled in religious schools. They claimed that this alone proved parents lacked genuine choice, even if no parent had ever said so. Once again, the Court disagreed:

We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in Mueller, “such an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated.”


The Court concluded, “In sum, the Ohio 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 in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the establishment clause.”

Relevance to church leaders

The Court’s ruling will breathe new life into the school voucher program. Ten states have enacted some form of publicly funded private school choice as a means of raising the quality of education provided to underprivileged urban children. No doubt many more will do so now that concerns over the constitutionality of such programs have been resolved. Public opinion polls consistently demonstrate broad public support for voucher programs. The Supreme Court referred to these polls in its decision: “The appeal of private schools is especially strong among parents who are low in income, minority, and live in low-performing districts: precisely the parents who are the most disadvantaged under the current system. Nearly three-fourths of all public school parents with an annual income less than $20,000 support vouchers, compared to 57 percent of public school parents with an annual income of over $60,000. In addition, 75 percent of black public school parents support vouchers, as do 71 percent of Hispanic public school parents.”

One other aspect of the Court’s ruling should be noted. Justice Souter, in his dissenting opinion (which was joined by three other justices) noted that church-operated schools will be the big beneficiary of the Court’s ruling, that they will become more dependent on government funding, and that this in turn will lead to battles over funding and state regulation of programs, activities, and personnel decisions. Justice Souter observed:

There is no question that religious schools in Ohio are on the way to becoming bigger businesses with budgets enhanced to fit their new stream of tax-raised income …. New schools have presumably pegged their financial prospects to the government from the start, and the odds are that increases in government aid will bring the threshold voucher amount closer to the tuition at even more expensive religious schools. When government aid goes up, so does reliance on it; the only thing likely to go down is independence …. [When] will dependence become great enough to give the State of Ohio an effective veto over basic decisions on the content of curriculums? A day will come when religious schools will learn what political leverage can do, just as Ohio’s politicians are now getting a lesson in the leverage exercised by religion. Increased voucher spending is not, however, the sole portent of growing regulation of religious practice in the school …. As appropriations for religious subsidy rise, competition for the money will tap sectarian religion’s capacity for discord. Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any …. Religious teaching at taxpayer expense simply cannot be cordoned from taxpayer politics, and every major religion currently espouses social positions that provoke intense opposition. Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America’s Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools …. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife’s obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention. Views like these, and innumerable others, have been safe in the sectarian pulpits and classrooms of this Nation not only because the free exercise clause protects them directly, but because the ban on supporting religious establishment has protected free exercise, by keeping it relatively private. With the arrival of vouchers in religious schools, that privacy will go, and along with it will go confidence that religious disagreement will stay moderate.

© Copyright 2002 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 c0502

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

ajax-loader-largecaret-downcloseHamburger Menuicon_amazonApple PodcastsBio Iconicon_cards_grid_caretChild Abuse Reporting Laws by State IconChurchSalary Iconicon_facebookGoogle Podcastsicon_instagramLegal Library IconLegal Library Iconicon_linkedinLock IconMegaphone IconOnline Learning IconPodcast IconRecent Legal Developments IconRecommended Reading IconRSS IconSubmiticon_select-arrowSpotify IconAlaska State MapAlabama State MapArkansas State MapArizona State MapCalifornia State MapColorado State MapConnecticut State MapWashington DC State MapDelaware State MapFederal MapFlorida State MapGeorgia State MapHawaii State MapIowa State MapIdaho State MapIllinois State MapIndiana State MapKansas State MapKentucky State MapLouisiana State MapMassachusetts State MapMaryland State MapMaine State MapMichigan State MapMinnesota State MapMissouri State MapMississippi State MapMontana State MapMulti State MapNorth Carolina State MapNorth Dakota State MapNebraska State MapNew Hampshire State MapNew Jersey State MapNew Mexico IconNevada State MapNew York State MapOhio State MapOklahoma State MapOregon State MapPennsylvania State MapRhode Island State MapSouth Carolina State MapSouth Dakota State MapTennessee State MapTexas State MapUtah State MapVirginia State MapVermont State MapWashington State MapWisconsin State MapWest Virginia State MapWyoming State IconShopping Cart IconTax Calendar Iconicon_twitteryoutubepauseplay