Zelman v. Simmons-Harris
The Supreme Court upheld Ohio's Cleveland school voucher program, ruling that letting parents use publicly funded tuition vouchers at religious schools does not violate the separation of church and state, because parents — not the government — freely choose where to send the money.
The decision opened the door for more states to adopt voucher programs that include religious schools as options, so long as parents have a genuine choice among religious and nonreligious schools and public and private options.
How it got here: A federal trial court granted summary judgment against the program; the Sixth Circuit affirmed; Ohio officials asked the Supreme Court to review and it agreed.
The Case in Depth
What happened
Cleveland's public schools were in severe crisis, with dismal test scores and graduation rates, prompting a federal takeover in 1995. Ohio responded by creating a scholarship program giving low-income families vouchers to pay tuition at participating public or private schools, including religious ones. A group of Ohio taxpayers sued, arguing that most participating schools were religious and most voucher money ended up funding religious education, violating the Establishment Clause.
The question before the Court
Could Ohio give low-income Cleveland families vouchers to pay tuition at private schools, even though most families used them at religious schools?
Why it matters
Families in struggling school districts nationwide can now use taxpayer-funded vouchers at religious schools without triggering an automatic constitutional violation. States considering voucher programs gained a clearer legal roadmap, and religious schools became eligible for a significant new source of public funding, intensifying debates over the wall between church and state.
What changes now
The judgment against the voucher program is reversed, meaning Cleveland's scholarship program can continue operating with religious schools included. This is a final decision on the merits, resolving the federal constitutional question, though states remain free to design their own voucher programs differently, and future disputes about specific program features may still arise in lower courts.
What this does not decide
The Court did not decide that all forms of aid to religious schools are constitutional — only that this particular neutral, private-choice voucher program was. It left open how much money channeled to religion, or how skewed the range of choices, might cross a constitutional line in a different program.
Concurrences and dissents
Concurrence — Justice O'Connor
Justice O'Connor agreed the program was constitutional but stressed the decision was not a dramatic break from precedent, noting that government already provides religious institutions with much larger sums through tax exemptions, Medicare, Medicaid, and Pell Grants. She also argued that evaluating whether parents had a genuine choice must account for all educational alternatives available in Cleveland, including community and magnet schools, not just the voucher program in isolation.
Concurrence — Justice Thomas
Justice Thomas emphasized that failing urban schools deny educational opportunity to minority children and framed vouchers as a tool for educational liberation. He also questioned, as a matter of first principles, whether the Establishment Clause should even apply to the states in the same way it applies to the federal government, suggesting states should have more latitude to experiment with religious involvement in education.
Dissent — Justice Stevens
Justice Stevens argued the Court should ignore the severity of Cleveland's school crisis, the availability of other public school options, and the voluntariness of parental choice, because none of these bear on whether the government may fund religious indoctrination. He warned that removing bricks from the wall separating church and state increases the risk of religious strife and undermines democracy.
Dissent — Justice Souter
“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.”Souter's dissent quoting Everson's foundational no-aid principle he says the majority abandoned.
Justice Souter argued the majority effectively abandoned Everson's foundational no-aid principle and manipulated the concepts of neutrality and private choice until they became empty formalisms. He contended the scale of aid flowing to religious schools was unprecedented and that the program failed every historical objective of the Establishment Clause, including protecting freedom of conscience and preventing religious strife.
Dissent — Justice Breyer
Justice Breyer focused on the risk that publicly financed religious education creates religiously based social conflict in an increasingly diverse America. He argued that parental choice cannot resolve this problem because it does nothing to prevent taxpayers, religious minorities, and competing sects from clashing over how voucher money and program criteria are administered.
How the Court got there
The legal reasoning, step by step
- The Court applied the Establishment Clause test asking whether a government program has the purpose or effect of advancing or inhibiting religion, noting no dispute that Ohio's secular purpose — helping poor children in failing schools — was valid.
- The Court distinguished between government aid that flows directly to religious institutions and aid that reaches religious schools only through the independent, private choices of individuals like parents; only the first category has consistently raised constitutional problems.
- Relying on three earlier rulings upholding tuition tax deductions, a blind student's vocational scholarship, and a sign-language interpreter paid to attend a religious school, the Court held that when aid passes to religious schools solely because parents freely chose to send it there, the government is not seen as endorsing religion.
- The Court found Ohio's program neutral because it was open to any school, religious or not, in the district, provided assistance based on financial need without regard to religion, and even gave financial disincentives to choosing private religious schools compared to public alternatives.
- The Court rejected the argument that the high percentage of voucher recipients enrolling in religious schools proved parents lacked real choice, reasoning that this reflected the mix of schools available in Cleveland rather than any government steering of aid toward religion, and that other options like community and magnet schools broadened the field of real choices.
- Because parents, not the State, were the ones directing government money to religious schools through their own decisions, the Court concluded the program did not have the forbidden effect of advancing religion under the Establishment Clause.
Doctrinal impact
Cases affected by this decision
Limits Nyquist (413 U. S. 756)
The Court held Nyquist does not govern neutral aid programs offering assistance to a broad class of individuals regardless of religion.
Reaffirms Mueller v. Allen (463 U. S. 388)
The Court relied on Mueller's rule that neutral aid reaching religious schools via private choice survives Establishment Clause review.
Reaffirms Witters v. Washington Dept. of Servs. for Blind (474 U. S. 481)
The Court used Witters to support upholding aid that reaches religious schools only through independent private choices.
Reaffirms Zobrest v. Catalina Foothills School Dist. (509 U. S. 1)
The Court applied Zobrest's reasoning that neutral aid following private choice does not offend the Establishment Clause.