Supreme Court Upholds Cleveland Voucher Program

By Mark Walsh — June 27, 2002 6 min read
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Cleveland’s state-enacted school voucher program does not violate the U.S. Constitution, the U.S. Supreme Court has ruled in a 5-4 decision.

At 10:23 A.M. on June 27, Chief Justice William H. Rehnquist began announcing the court’s decision, its final one of the 2001-02 term. The Cleveland Scholarship and Tutoring Program “is entirely neutral with respect to religion,” he said.

“It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district,” he added. “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.”

He was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Read the majority opinion, delivered by Chief Justice Rehnquist, in Zelman v. Simmons-Harris, from U.S. Supreme Court. Concurring and dissenting opinions are included. (Requires Adobe’s Acrobat Reader.)

Justice David H. Souter read a summary of the main dissent from the bench. The majority’s decision was “a major devaluation of the establishment clause,” he said in a reference to the First Amendment’s prohibition against a government establishment of religion. The ruling is “potentially tragic,” he added.

He was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. The court’s decision in Zelman v. Simmons-Harris (Case No. 00- 1751) ensures that some 3,700 Cleveland students will be able to continue attending private schools, including religious schools, at state expense.

Lori Kaloger, whose three children attend St. Leo School in Cleveland using vouchers, said she was “thrilled to pieces” at the court’s decision. A reversal would likely have meant that her children would have to withdraw from the Roman Catholic elementary school.

Outside the Supreme Court building, Clint Bolick, a vice president of the Institute for Justice and a longtime legal advocate of vouchers, beamed on a withering summer day.

“This was the Super Bowl of school choice, and children won,” he said.

But Barry W. Lynn, the president of Americans United for Separation of Church and State, said: “The majority took a wrecking ball today to the First Amendment’s protection against government subsidies to religion. Vouchers are an unconscionable diversion of resources away from the public schools.”

Long-Running Challenge

The Cleveland voucher program, enacted by the Ohio legislature in 1995, pays up to $2,250 in tuition for each student to attend one of 49 participating schools. Parents are expected to contribute either 10 percent or 25 percent of the school’s tuition, depending on family income.

The program was challenged soon after its enactment by groups of taxpayers backed by the major teachers’ unions and such organizations as the American Civil Liberties Union, People for the American Way, and Americans United for Separation of Church and State. The challenge bounced from state courts in Columbus to federal courts in Cleveland and Cincinnati, where the U.S. Court of Appeals for the 6th Circuit struck down the program last year as a violation of the establishment clause.

A panel of the Cincinnati-based court ruled 2-1 that the aid program was similar to a New York state tuition-reimbursement program for private school parents struck down by the Supreme Court in the 1973 case of Committee for Public Education and Religious Liberty v. Nyquist.

The ruling was appealed to the Supreme Court by the state of Ohio as well as by a group of voucher parents and by several religious schools participating in the program, which has continued to operate pending the further appeals.

In his majority opinion, Chief Justice Rehnquist said the aid at issue in the Cleveland program was constitutional based on a line of rulings that began in 1983, when the high court upheld a Minnesota program authorizing tax deductions for educational expenses, including tuition at religious schools.

Then-Associate Justice Rehnquist was the author of the court’s opinion in that case, Mueller v. Allen.

The chief justice also cited the 1986 case of Witters v. Washington Department of Services for the Blind, which upheld the use of a state vocational scholarship by a graduate student at a religious seminary, and Zobrest v. Catalina Foothills School District, which rejected an establishment-clause challenge to the use of a government sign-language interpreter to aid a deaf student in a Roman Catholic school.

Chief Justice Rehnquist said those cases “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.”

The Cleveland voucher program, likewise, is neutral toward religion and provides no financial incentives that skew the choices towards religious school, he said.

The chief justice rejected arguments from the program’s opponents that it should be overturned based on the Nyquist case. The New York state program in that case involved a package of benefits exclusively to private schools and parents of private school students, the chief justice said. The Cleveland program shares none of the features of the program in Nyquist, he said.

Both Justices O’Connor and Thomas signed on to the chief justice’s opinion, but filed their own concurring opinions.

Justice O’Connor was the crucial fifth vote for upholding the Cleveland program, because the other four members of the majority had signaled in a case two years ago that they were prepared to uphold a voucher program.

She said in her concurrence that she did not believe the majority decision “marks a dramatic break from the past.”

“The support that the Cleveland voucher program provides religious institutions is neither substantial nor atypical of existing government programs,” she said. Many religious institutions benefit from tax policies that amount to significant sums of decreased tax revenue to the government, she said.

Justice O’Connor also argued that it was important to examine the voucher program in the context of other options open to Cleveland parents, such as magnet schools and charter schools, which Ohio calls community schools.

“I am persuaded that the Cleveland voucher program affords parents of eligible children genuine nonreligious options and is consistent with the establishment clause,” she said.

Justice Thomas’s concurrence was a bit more provocative.

“Today, many of our inner-city public schools deny emancipation to urban minority students,” he said. Despite the promises of Brown v. Board of Education, the historic 1954 case striking down school segregation, “urban children have been forced into a system that continually fails them,” Justice Thomas wrote.

“Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs because they provide the greatest educational opportunities for their children in struggling communities,” he added.

Justice Souter wrote the main dissent, emphasizing the view that the majority’s ruling contradicts the 1947 ruling in Everson v. Board of Education of Ewing, which upheld the public transportation of private school students but declared that “no tax in any amount, large or small, can be levied in support of any religious activities or institutions.”

“The scale of the aid to religious schools approved today is unprecedented,” Justice Souter said. “I hope that a future court will reconsider today’s dramatic departure from basic establishment-clause principle.”

Justices Stevens and Breyer filed their own dissents.

“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy,” wrote Justice Stevens.

Justice Breyer expressed fears that the voucher decision would lead to more “religiously based social conflict.”

And “the majority’s analysis here appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools,” he said.


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