In the Court's Words
Following are excerpts from the majority, concurring, and dissenting opinions in the U.S. Supreme Court's June 27 decision in the Cleveland voucher case, Zelman v. Simmons-Harris:
Chief Justice William H. Rehnquist, joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas:
The state of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the establishment clause of the United States Constitution. We hold that it does not.
... The establishment clause of the First Amendment, applied to the states through the 14th Amendment, prevents a state from enacting laws that have the purpose or effect of advancing or inhibiting religion. There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden effect of advancing or inhibiting religion.
To answer that question, 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. While our jurisprudence with respect to the constitutionality of direct aid programs has changed significantly over the past two decades, our jurisprudence with respect to true private choice programs has remained consistent and unbroken.
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.
... We believe that the program challenged here is a program of true private choice ... 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.
... Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a public perception that the state is endorsing religious practices and beliefs. But 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.
There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. 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.
Justice Souter speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. But 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 percent of Cleveland's participating private schools are religious schools, but it is also true that 81 percent 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.
... 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.
Justice Sandra Day O'Connor
While I join the court's opinion, I write separately for two reasons. First, although the court takes an important step, I do not believe that today's decision, when considered in light of other long-standing government programs that impact religious organizations and our prior establishment clause jurisprudence, marks a dramatic break from the past. Second, given the emphasis the court places on verifying that parents of voucher students in religious schools have exercised true private choice, I think it is worth elaborating on the court's conclusion that this inquiry should consider all reasonable educational alternatives to religious schools that are available to parents. To do otherwise is to ignore how the educational system in Cleveland actually functions.
These cases are different from prior indirect aid cases in part because a significant portion of the funds appropriated for the voucher program reach religious schools without restrictions on the use of these funds. The share of public resources that reach religious schools is not, however, as significant as respondents suggest. Data from the 1999-2000 school year indicate that 82 percent of schools participating in the voucher program were religious and that 96 percent of participating students enrolled in religious schools ... but these data are incomplete. These statistics do not take into account all of the reasonable educational choices that may be available to students in Cleveland public schools. When one considers the option to attend community schools, the percentage of students enrolled in religious schools falls to 62.1 percent. If magnet schools are included in the mix, this percentage falls to 16.5 percent.
... Even if one assumes that all voucher students came from low-income families and that each voucher student used up the entire $2,250 voucher, at most $8.2 million of public funds flowed to religious schools under the voucher program in 1999-2000.
... Although $8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions. Religious organizations may qualify for exemptions from the federal corporate income tax; the corporate income tax in many states; and property taxes in all 50 states; and clergy qualify for a federal tax break on income used for housing expenses. In addition, the federal government provides individuals, corporations, trusts, and estates a tax deduction for charitable contributions to qualified religious groups. Finally, the federal government and certain state governments provide tax credits for educational expenses, many of which are spent on education at religious schools.
... These tax exemptions ... are just part of the picture. Federal dollars also reach religiously affiliated organizations through public-health programs such as Medicare and Medicaid, through educational programs such as the Pell Grant program and the GI Bill of Rights, and through child-care programs such as the Child Care and Development Block Grant Program. These programs are well-established parts of our social welfare system and can be quite substantial.
... Against this background, the support that the Cleveland voucher program provides religious institutions is neither substantial nor atypical of existing government programs.
Justice Clarence Thomas
Frederick Douglass once said that "[e]ducation means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." Today many of our inner-city public schools deny emancipation to urban minority students. Despite this court's observation nearly 50 years ago in Brown v. Board of Education that it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education, urban children have been forced into a system that continually fails them.
... To determine whether a federal program survives scrutiny under the establishment clause, we have considered whether it has a secular purpose and whether it has the primary effect of advancing or inhibiting religion. I agree with the court that Ohio's program easily passes muster under our stringent test, but, as a matter of first principles, I question whether this test should be applied to the states.
The establishment clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion." On its face, this provision places no limit on the states with regard to religion. The establishment clause originally protected states, and by extension their citizens, from the imposition of an established religion by the federal government.
... Whatever the textual and historical merits of incorporating the establishment clause, I can accept that the 14th Amendment protects religious liberty rights. But I cannot accept its use to oppose neutral programs of school choice through the incorporation of the 14th Amendment's guarantee of individual liberty into a prohibition on the exercise of educational choice.
Justice David H. Souter, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and John Paul Stevens:
The court's majority holds that the establishment clause is no bar to Ohio's payment of tuition at private religious elementary and middle schools under a scheme that systematically provides tax money to support the schools' religious missions. The occasion for the legislation thus upheld is the condition of public education in the city of Cleveland. The record indicates that the schools are failing to serve their objective, and the vouchers in issue here are said to be needed to provide adequate alternatives to them. If there were an excuse for giving short shrift to the establishment clause, it would probably apply here. But there is no excuse. Constitutional limitations are placed on government to preserve constitutional values in hard cases, like these.
... The applicability of the establishment clause to public funding of benefits to religious schools was settled in Everson v. Board of Education of Ewing, which inaugurated the modern era of establishment doctrine. The court stated the principle in words from which there was no dissent:
"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."
The court has never in so many words repudiated this statement, let alone, in so many words, overruled Everson.
... How can a court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring Everson that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest today's decision on those criteria.
... The majority looks not to the provisions for tuition vouchers, but to every provision for educational opportunity ... The majority then finds confirmation that participation of all schools satisfies neutrality by noting that the better part of total state educational expenditure goes to public schools, thus showing there is no favor of religion.
The illogic is patent. If regular, public schools (which can get no voucher payments) participate in a voucher scheme with schools that can, and public expenditure is still predominantly on public schools, then the majority's reasoning would find neutrality in a scheme of vouchers available for private tuition in districts with no secular private schools at all. Neutrality as the majority employs the term is, literally, verbal and nothing more.
... There is ... no way to interpret the 96.6 percent of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers. The 96.6 percent reflects, instead, the fact that too few nonreligious school desks are available and few but religious schools can afford to accept more than a handful of voucher students. And contrary to the majority's assertion, public schools in adjacent districts hardly have a financial incentive to participate in the Ohio voucher program, and none has. For the overwhelming number of children in the voucher scheme, the only alternative to the public schools is religious. And it is entirely irrelevant that the state did not deliberately design the network of private schools for the sake of channeling money into religious institutions. The criterion is one of genuinely free choice on the part of the private individuals who choose, and a Hobson's choice is not a choice, whatever the reason for being Hobsonian.
... [I]t is well to remember that the money has barely begun to flow. Prior examples of aid, whether grants through individuals or in-kind assistance, were never significant enough to alter the basic fiscal structure of religious schools; state aid was welcome, but not indispensable. But given the figures already involved here, 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.
... 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, which combines a nationalistic sentiment in support of Israel with a deeply religious element. 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.
... Everson's statement is still the touchstone of sound law, even though the reality is that in the matter of educational aid the establishment clause has largely been read away. True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the establishment clause is largely silenced. I do not have the option to leave it silent, and I hope that a future court will reconsider today's dramatic departure from basic establishment clause principle.
Also in Dissent
Justice Stephen G. Breyer, joined by Justices John Paul Stevens and David H. Souter
... I write separately ... to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the establishment clause concern for protecting the nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program. And by explaining the nature of the concern, I hope to demonstrate why, in my view, parental choice cannot significantly alleviate the constitutional problem.
The First Amendment begins with a prohibition, that Congress shall make no law respecting an establishment of religion, and a guarantee, that the government shall not prohibit the free exercise thereof. These clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to worship God in their own way, and allows all families to teach their children and to form their characters as they wish. The clauses reflect the Framers' vision of an American nation free of the religious strife that had long plagued the nations of Europe.
... When it decided these 20th-century establishment clause cases, the court did not deny that an earlier American society might have found a less clear-cut church/state separation compatible with social tranquility. Indeed, historians point out that during the early years of the Republic, American schools, including the first public schools, were Protestant in character.
... The 20th-century court was fully aware, however, that immigration and growth had changed American society dramatically since its early years. By 1850, 1.6 million Catholics lived in America, and by 1900 that number rose to 12 million. There were similar percentage increases in the Jewish population. Not surprisingly, with this increase in numbers, members of non-Protestant religions, particularly Catholics, began to resist the Protestant domination of the public schools.
.... The 20th-century court was also aware that political efforts to right the wrong of discrimination against religious minorities in primary education had failed; in fact they had exacerbated religious conflict. Catholics sought equal government support for the education of their children in the form of aid for private Catholic schools. But the Protestant position on this matter, scholars report, was that public schools must be nonsectarian (which was usually understood to allow Bible reading and other Protestant observances) and public money must not support sectarian schools (which in practical terms meant Catholic).
... The upshot is the development of constitutional doctrine that reads the establishment clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state, at least where the heartland of religious belief, such as primary religious education, is at issue.
... School voucher programs finance the religious education of the young. And, if widely adopted, they may well provide billions of dollars that will do so. Why will different religions not become concerned about, and seek to influence, the criteria used to channel this money to religious schools? Why will they not want to examine the implementation of the programs that provide this money to determine, for example, whether implementation has biased a program toward or against particular sects, or whether recipient religious schools are adequately fulfilling a program's criteria? If so, just how is the state to resolve the resulting controversies without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a nation, threaten social dissension?
... History suggests, not that such private school teaching of religion is undesirable, but that government funding of this kind of religious endeavor is far more contentious than providing funding for secular textbooks, computers, vocational training, or even funding for adults who wish to obtain a college education at a religious university. Contrary to Justice O'Connor's opinion, history also shows that government involvement in religious primary education is far more divisive than state property-tax exemptions for religious institutions or tax deductions for charitable contributions, both of which come far closer to exemplifying the neutrality that distinguishes, for example, fire protection on the one hand from direct monetary assistance on the other.
The court, in effect, turns the clock back. It adopts, under the name of neutrality, an interpretation of the establishment clause that this court rejected more than half a century ago. In its view, the parental choice that offers each religious group a kind of equal opportunity to secure government funding overcomes the establishment clause concern for social concord. An earlier court found that equal-opportunity principle insufficient; it read the clause as insisting upon greater separation of church and state, at least in respect to primary education. In a society composed of many different religious creeds, I fear that this present departure from the court's earlier understanding risks creating a form of religiously based conflict potentially harmful to the nation's social fabric.
Justice John Paul Stevens
... [T]he wide range of choices that have been made available to students within the public school system [italics from the opinion text] has no bearing on the question whether the state may pay the tuition for students who wish to reject public education entirely and attend private schools that will provide them with a sectarian education. The fact that the vast majority of the voucher recipients who have entirely rejected public education receive religious indoctrination at state expense does, however, support the claim that the law is one "respecting an establishment of religion." The state may choose to divide up its public schools into a dozen different options and label them magnet schools, community schools, or whatever else it decides to call them, but the state is still required to provide a public education and it is the state's decision to fund private school education over and above its traditional obligation that is at issue in these cases.
... I am convinced that the court's decision is profoundly misguided.
Vol. 21, Issue 42, Pages 22-23