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Until recently, advocates of school choicefaced a formidable legal barrier to providing edu-cational options for families: no one knew forsure what school choice programs were permit-ted by the U.S. Constitution.In June 2002 the Supreme Court finally liftedthe cloud of constitutional doubt that had hov-ered over the school choice movement. In
 Zelmanv. Simmons-Harris
the Court upheld a schoolchoice program that was designed by the Ohiolegislature to help children in Cleveland escapefrom that city’s failing public schools. The Courtdid not merely issue a narrow, fact-specific deci-sion on the Cleveland program; it clarified therules for determining what kinds of schoolchoice programs are constitutional.This paper explains the facts and history of the Cleveland program upheld in
 Zelman
andprovides advocates, lawmakers, and concernedparents with a clear explanation of the rules thatthe Supreme Court has established for schoolchoice. It includes examples and strategy adviceto help proponents of school choice win the nextlegal battle before it even begins—by crafting anobviously constitutional school choice programthat opponents can’t effectively challenge.The Supreme Court adopted five basic criteriafor a program of “true private choice” in
 Zelman
.First, any government program must have a secu-lar purpose to survive Establishment Clause chal-lenge. Second, a school choice program must offeronly indirect aid to religious schools. Third, thebenefits of a school choice program must be madeavailable to a broad class of beneficiaries. Fourth,a program must not be set up in a way that favorsreligious options over secular options. Finally,states must ensure that parents have adequatenonreligious educational options.While the rules for school choice under the fed-eral Constitution are now fairly clear, many statelawmakers still face uncertainty about whetherchoice programs will be upheld under their stateconstitutions. Lawsuits now challenging restrictivestate constitutions will signal how other states’ con-stitutional provisions will likely be treated.Those lawsuits have political as well as legalvalue. They have exposed the shameful, anti-Catholic history of some state constitutionalprovisions and have reopened the public debateabout whether a state should prohibit programsthat offer parents educational choices and donot discriminate on the basis of religion.
True Private Choice
 A Practical Guide to School Choice after 
Zelman v. Simmons-Harris
by Marie Gryphon
_____________________________________________________________________________________________________
 Marie Gryphon, an attorney, is an education policy analyst at the Cato Institute.
Executive Summary
No. 466February 4, 2003
 
Introduction
Throughout the United States, lawmakers,parents, and concerned citizens havebemoaned the increasingly poor quality of ele-mentary and secondary education. Americanstudents lag behind their European and Asianpeers in math and in other basic subjects.
1
Worse, many schools in inner-city areas havebecome very dangerous.
2
In response to those crises, the public edu-cation establishment—a coalition of teachers’unions and left-leaning ideologues—hasurged Americans to increase funding forpublic education and be patient while theyfix its persistent problems. However, moreand more parents, activists, and politicianshave become dissatisfied with the status quoand have become advocates of school choice.They are unwilling to simply stand back andwatch as the public education establishmentsacrifices another generation of Americanchildren to union prerogatives and utopiandreams of government schools that are allthings to all people.Until recently, advocates of school choicefaced a formidable legal barrier to providingeducational options for families: no oneknew for sure what school choice programs,if any, were permitted by the U.S.Constitution. There was no rulebook.
3
Anystate brave enough to enact a school choiceprogram that included religious schoolscould expect that program to be immediate-ly challenged in court as an “establishment of religion.” Such challenges could result inyears of litigation and hundreds of thou-sands of dollars in legal expenses.
4
In 2002 the Supreme Court finally liftedthe cloud of constitutional doubt that hadhovered over the school choice movement. In
 Zelman v. Simmons-Harris
the Court upheld aschool choice program that was designed bythe Ohio legislature to help children inCleveland escape from that city’s failing publicschools.
5
The Supreme Court did not merelyissue a narrow, fact-specific decision on theCleveland program; it clarified the rules fordetermining what kinds of school choice pro-grams are constitutional. The Court has pro-vided a fairly clear set of guidelines for law-makers and advocates who want to enactschool choice in their home states.As state legislatures convene across thenation this year, advocates of school choiceare eager to enact legislation that will freefamilies to make educational choices fortheir children. This paper explains the factsand history of the Cleveland program upheldin
 Zelman
and provides advocates, lawmak-ers, and concerned parents with a clear expla-nation of the rules that the Supreme Courthas established for school choice. It includesexamples and strategy advice to help propo-nents of school choice win the legal battleover federal constitutional issues before iteven begins—by crafting an obviously consti-tutional school choice program that oppo-nents can’t effectively challenge.This paper also describes various state con-stitutional barriers to school choice, pointsout which ones may pose the greatest threats,and provides advice on how they may be effec-tively challenged. Now that the SupremeCourt has decided that school choice is accept-able under the federal Constitution, it shouldbe increasingly difficult for states to maintainless tolerant standards.
 Zelman v. Simmons-Harris
Facts and History
The Cleveland City School District, thedefendant in
 Zelman v. Simmons-Harris,
wasuniversally acknowledged to be among theworst in the United States. Even JusticeDavid Souter, who disagreed with theCourt’s decision to uphold Cleveland’sschool choice program, felt compelled toadmit, “If there were an excuse for givingshort shrift to the Establishment Clause, itwould probably apply here.”
6
The schools in Cleveland were in suchfinancial and operational disarray that in1995 a federal judge placed the school dis-trict in state receivership, declaring that the
2
Some people areunwilling to sim-ply stand back and watch as thepublic educationestablishmentsacrifices anothergeneration of American chil-dren to unionprerogatives andutopian dreamsof governmentschools that areall things to allpeople.
 
schools were in a “crisis of magnitude.”
7
Thestate auditor then reviewed the school dis-trict and announced a “crisis that is perhapsunprecedented in the history of Americaneducation.”
8
The district had met zero of 18state performance standards, and only 1 in10 ninth graders could pass a basic proficien-cy examination.
9
The failure of the Cleveland schoolsbecame a hot political topic, and the statelegislature was spurred to action. It enacted,among other measures, the Pilot ProjectScholarship Program.
10
That program wasdesigned to provide scholarship and tutoringassistance to children residing in any districtoperating under the supervision of a federalcourt, a condition met only by the ClevelandCity School District.
11
The program allows both private andpublic schools in adjacent districts to acceptscholarship students on a lottery basis.
12
Low-income students get priority if the num-ber of applicants is greater than the numberof scholarships, and participating schoolsagree not to discriminate on the basis of race,religion, or ethnic background.
13
The program also provides funds for tutor-ing children who remain in the Cleveland pub-lic schools
14
and operates alongside programsproviding magnet and charter school optionsto Cleveland parents.
15
In 1999 various organizations—includingthe National Education Association, theAmerican Federation of Teachers, and PeopleUnited for Separation of Church and State—sued the state of Ohio in federal court, claim-ing that the Cleveland school choice programviolated the Establishment Clause of the FirstAmendment to the U.S. Constitution. TheFirst Amendment states in relevant part,“Congress shall make no law respecting anestablishment of religion, nor prohibiting thefree exercise thereof.” That language hasrestrained state lawmakers as well as Congresssince the ratification of the FourteenthAmendment after the U.S. Civil War.
16
The federal trial court held that theCleveland program was unconstitutional,and the program’s defenders appealed thatdecision to the U.S. Court of Appeals for theSixth Circuit.
17
The court of appeals agreedwith the trial court that the Cleveland pro-gram violated the Constitution but allowedthe program to continue while Ohioappealed the decision to the U.S. SupremeCourt.
18
The Supreme Court agreed to hearthe case during its 2001–2002 term.
19
The Decision
The Supreme Court reversed the court of appeals decision and upheld the Clevelandschool choice program as constitutional in afive-to-four vote.
20
The Court issued a clearlywritten decision, written by Chief JusticeWilliam H. Rehnquist, that should open thedoor for future school choice programsaround the country.Although the Court presents its decisionas merely a meticulous application of currentlaw,
 Zelman
offers a paradigm-shifting analy-sis of the Constitution’s EstablishmentClause. The Court looks back through sever-al decades of its own decisions and separatesthem into two categories. In one category arecases involving programs that directly aidreligious organizations or subsidize religiousactivities, whether on a neutral or a discrimi-natory basis. In the other category are thechallenged programs that offer aid directly toindividuals, who then make private choicesabout where to use the aid.The Court held that, although the formercategory of programs should be closely scru-tinized for evidence of church-state entangle-ment and impermissible government“endorsement” of religion, the programs inthe second category would be upheld so longas they met a few clear rules demonstratingthat they are indeed programs of “true pri-vate choice.” In the words of the Court:The Ohio program is entirely neutralwith respect to religion. It providesbenefits directly to a wide spectrumof individuals, defined only by finan-cial need and residence in a particu-lar school district. It permits suchindividuals to exercise genuine
3
The Court issueda clearly writtendecision thatshould open thedoor for futureschool choiceprograms aroundthe country.
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