Zelman v.

Simmons-Harris
536 US 639 (2002)

FACTS: In 1995, the Ohio state government took control of the Cleveland School District and
enacted the Pilot Project Scholarship Program to boost performance and meet state education
standards. The program offered alternatives to students in the district, including tuition
scholarships of $2,250 for families that wanted to send their child to a private school in or out of
the district. This applied to both nonreligious and religious schools. Doris Simmons-Harris and
other citizens filed suit against the state superintendent of public instruction, Susan Tave Zelman,
arguing that the program violated the First Amendment’s establishment clause.

STATUTE: Pilot Project Scholarship Program.

CONSTITUTIONAL PROVISION: First Amendment, establishment clause, incorporation

clause of the Fourteenth Amendment.

LEGAL ISSUE/QUESTIONS: Does the Cleveland voucher program violate the establishment
clause of the First Amendment?

HOLDING: 5-4; no. The scholarship program is upheld, and the judgement of the Court of
Appeals is reversed.

REASONING per REHNQUIST (writing for Kennedy, O’Connor, Scalia, and Thomas): The
program holds the secular purpose of aiding struggling students in a failing school district. The
parent and student rights to private choice cannot be overlooked and remains consistent with
previous court rulings, citing Witters, Mueller, and Zobrest. If a government aid program is
neutral to religion, and private citizens direct the funding toward religious schools as a result of
their own choice and interest, then there is no violation of the establishment clause. The fact that
96% of the parents are using the scholarships for religious schools does not account for the
students who are using the tuition aid to attend alternate community schools, secular private
institutions, or other public schools. The program itself is neutral and applies aid on the basis of
financial need and location, not for any sectarian purposes.

THOMAS, concurring: Other states have enacted similar programs, all with the goal of raising
the quality of education for underprivileged students in urban settings. The other option would be
to offer racial preference in education, which “runs afoul” of the prohibition against distinction
of race found in the Fourteenth Amendment. Conversely, it is an inflation of the Fourteenth
Amendment to incorporate the establishment clause so widely.

O’CONNOR, concurring: The voucher program offers “genuine nonreligious options,” and the
selection of a private religious school is a result only of private choice. The higher enrollment at
religious private schools is not indicative that there are no other options available.
BREYER, dissenting (writing for Stevens and Souter): The program is “well-intentioned,” but it
is still a violation of the establishment clause. While parental choice may be the driving factor
behind the selection of religious schools, that is not enough to offset the concerns of taxpayers
who do not want their money used to fund such programming. It is not entirely neutral, either,
because religious minorities that do not have the numbers to found their own private schools are
left out, as are those whose religion forbids them from participating in government-sponsored
programs like the scholarship vouchers. There is excessive entanglement.

SOUTER, dissenting (writing for Stevens, Ginsburg, and Breyer): Citing Everson v. Board of
Education of Ewing, the court must strike down any tax, “whatever form they may adopt,” that is
used to support or teach religious activities. The court is ignoring this case and enacting a
contradictory ruling. The vast majority of private schools participating in the program are
religiously affiliated, and public tax money is being put toward their teachings. Although it is a
hard case, the court must uphold the establishment clause.

LEGAL DOCTRINE: The Fourteenth Amendment incorporates the First Amendment to the
states, including the prohibition of government promoting the establishment of religion over
secular policy. Because the voucher program is neutral toward religion, offers multiple options to
parents, and does not exclusively fund sectarian institutions, it is not a violation of the
establishment clause.

IF I WERE ON THE COURT: As Breyer and Souter both note, this is a difficult case to decide
on constitutionality rather than morality and belief. Although I am initially inclined to agree with
the majority, there are other options that the state can pursue to improve education while
remaining secular. The magnet schools and community schools were enacted through separate
legislation, and the fact that neighboring public schools declined to participate in the program
negate the idea of true neutral choice. I would offer a dissenting opinion, noting that the lack of
funding for parents who choose to keep their child within the district as opposed to those who
receive a scholarship at a religious school ultimately promotes a religious message. In line with
Breyer, the majority of private schools tend to fall into the Christian camp, which cannot be
overlooked as it is a dominant religion that taxpayers or families observing other religions may
not want to promote. The case demonstrates excessive entanglement with the establishment of
religion and does not offer any attempts to improve the school district itself, or equivalent aid for
students who opt to stay in the district.