A Long Road to the Court

July 10, 2002 4 min read

Given the ferocity of the debate over vouchers, it is often forgotten that early in the history of the United States, religiously affiliated schools at times received generous public funding from states and cities. By the mid-19th century, with the rise of the common school and the increasing desire by Roman Catholic immigrants for their own schools, government aid to private schools gradually declined. Such aid to religious schools was generally not considered unconstitutional, however, until the 14th Amendment was interpreted as applying to the states the First Amendment’s prohibition on a government establishment of religion. The specific policy debate on vouchers that led to the U.S. Supreme Court’s June 27 decision is a post-World War II phenomenon. Here’s a look at some mileposts on the way to that ruling:


Vermont passes a law authorizing “tuitioning,” in which the state and districts pay for children to attend private schools in towns without their own public schools. Today, in some 90 Vermont towns without high schools, districts pay tuition for some 6,500 children to attend secular private schools.


Maine adopts a tuitioning law. Today, some 5,600 students from 55 towns without high schools attend secular private schools at state and district expense.


Congress falls short of passing the so-called Blaine Amendment. If state legislatures had then ratified it, the measure would have amended the U.S. Constitution to prohibit any religious sect from controlling public funds for schools. The amendment was named for Rep. James G. Blaine of Maine, the 1884 Republican presidential nominee. Many states later added similar language to their own constitutions


In Pierce v. Society of Sisters, the U.S. Supreme Court upholds the right of parents to choose to send their children to private schools


In Everson v. Board of Education of Ewing, the Supreme Court upholds the use of public school buses to transport private and parochial school students. But the decision also establishes a principle that “no tax” should go to support religious activities or institutions.


Economist Milton Friedman writes an article (“The Role of Government in Education,” from Economics and the Public Interest, 1955) that proposes a system of school vouchers to introduce competition into the educational system.


In Committee for Public Education and Religious Liberty v. Nyquist, the Supreme Court rules against direct state subsidies to religious schools for repair and maintenance of facilities, and strikes down tuition reimbursements and tax credits for parents of children in religious schools.


In Mueller v. Allen, Supreme Court upholds Minnesota’s tax deduction for private school tuition, including tuition at religious schools, the first in a series of rulings that school voucher proponents view as favorable to their cause.


Academics John E. Chubb and Terry M. Moe (left) publish Politics, Markets, and America’s Schools, a highly influential book that calls for states to govern public schools more like private schools and to create systems that foster greater competition for students between public and private schools.

Wisconsin’s legislature adopts a landmark urban voucher program authorizing 1,000 Milwaukee schoolchildren to attend secular private schools at state expense.


Wisconsin expands the Milwaukee voucher program to allow the participation of religious schools.

Ohio adopts a voucher program for the Cleveland district that includes religious schools.


An Ohio state judge upholds the Cleveland voucher program; children begin using vouchers to attend religious schools there for the first time on a wide scale.


The Wisconsin Supreme Court rules that inclusion of religious schools in the Milwaukee voucher program does not violate U.S. Consititution’s prohibition against a government establishment of religion. Despite widespread anticipation that it will take up the case, the U.S. Supreme Court declines. The Wisconsin program spreads to religious schools and now includes about 10,000 student participants.


Florida adopts the first statewide voucher program, open to students in failing schools that do not improve their performance. Such students may receive vouchers to attend other public schools or private schools, including religious schools.

The Ohio Supreme Court rules that inclusion of religious schools in the Cleveland program does not violate the U.S. Constitution, but it strikes down the program on state procedural grounds. The legislature reauthorizes the program, and the new law is challenged in federal court. A federal district judge in Cleveland strikes down the program as “skewed toward religion.”


In Mitchell v. Helms, the U.S. Supreme Court upholds a federal program that lends computers and other equipment to religious schools. Four justices sign an opinion signaling that they would uphold the inclusion of religious schools in a voucher program as long as the government aid was offered on a neutral basis.

A federal appeals court in Cincinnati rules against the Cleveland voucher program.


The new Bush administration joins the state of Ohio and other voucher advocates in asking the Supreme Court to hear the Cleveland case. The justices accept the case at the beginning of their 2001-02 term.


Voucher supporters rally outside the Supreme Court on Feb. 20. Opponents were out in force, too.

Feb. 20: The Supreme Court hears 80 minutes of oral arguments on the constitutionality of the Cleveland program, which has some 4,200 participants.

June 27: The Supreme Court, 5-4, upholds the Cleveland voucher program.

SOURCES: Education Week, CQ Researcher

A version of this article appeared in the July 10, 2002 edition of Education Week as A Long Road to the Court