The Catholic University of America

Zelman v. Simmons-Harris, Nos. 00-1751, 00-1777, and 00-1779, SUPREME COURT OF THE UNITED STATES, 2002 U.S. LEXIS 4885; 70 U.S.L.W. 4683, June 27, 2002, Decided.

In a 5-4 decision, the United States Supreme Court held the Cleveland voucher program does not offend the Establishment Clause. Chief Justice Rehnquist delivered the opinion of the Court, which capped a shift in the Court's jurisprudence on religion that has slowly developed over the last twenty years. Although the Court was careful to paint the decision as not a major departure from earlier cases, most commentators view the decision as a landmark victory of enduring importance. In deciding the case, the 5 member majority[1] relied on the distinction between government programs that provide direct aid to religious schools, and those that provide indirect aid. The Court was clear that they were deciding this case as part of the line of cases approving indirect aid.

The facts in the case indicate the Cleveland School district had failed to meet any of the 18 state standards for minimal acceptable performance. More than two thirds of high school students either dropped out or failed out before graduation. To combat this problem, the Ohio Legislature enacted a Pilot Project Scholarship Program, which provided a choice of tuition aid, which enabled a child in the failing district to attend a public or private school of the parent's choosing. Another option under the program was tutorial aid for students remaining in the failing public schools. Participating private schools included religious schools. All schools were required to agree not to discriminate on the basis or race, religion, or ethnic background, or to advocate or foster any unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion. The Program also involved the creation of magnet and charter schools in Cleveland as part of a varied approach to deal with the failing school system.

The Court held that the program was one of true private choice, consistent with the Mueller (see below) line of cases, and thus constitutional. The program was neutral towards religion, and part of a multifaceted approach to providing education to children in a non-functional school district. The only preference in the program was for low-income families. In terms of the schools participating, private schools received only half the government assistance given to community schools, and one-third of that given to magnet schools.

The tuition aid was distributed according to financial need, and the tutorial aid was available to any student in a covered district who remained in the public school. Neighboring public suburban schools could have participated in the program and received extra tuition money from the state for accepting inner city children from the failing schools, but none of the suburban schools participated.

The Court stated the case was not about numbers. In upholding the program, the Court noted the following from Mueller v. Allen, 463 U.S. 388 (1983):

Five Members of the Court, in separate opinions, emphasized the general rule from Mueller that the amount of government aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional inquiry. 474 U.S., at 490-491 (Powell, J., joined by Burger, C. J., and Rehnquist, J., concurring) (citing Mueller, supra, at 398-399); 474 U.S., at 493 (O'Connor, J., concurring in part and concurring in judgment); id., at 490 (White, J., concurring). Our holding thus rested not on whether few or many recipients chose to expend government aid at a religious school but, rather, on whether recipients generally were empowered to direct the aid to schools or institutions of their own choosing.

In discussing Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) the Court stated:

Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools. Id., at 10-11. See, e.g., Agostini, 521 U. S., at 229 ("Zobrest did not turn on the fact that James Zobrest had, at the time of litigation, been the only child using a publicly funded sign-language interpreter to attend a parochial school").

Justice O'Connor, at page 2 of her concurring opinion, did note that the voucher cases [2]are indeed "different from prior indirect aid cases in part because a significant portion of the funds appropriated for the voucher program reach religious schools without restriction on the use of these funds." Her opinion was interesting in that she noted the large amount of money the federal and local governments currently spend on religious institutions:

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, see 26 U.S.C. § 501(c)(3); the corporate income tax in many States, see, e.g., Cal. Rev. & Tax. Code Ann. §23701d (West 1992); and property taxes in all 50 States, see K. Turner, Property Tax Exemptions for Nonprofits, 12-Oct. Probate and Property 25 (1998); and clergy qualify for a federal tax break on income used for housing expenses, 26 U.S.C. § 1402(a)(8). In addition, the Federal Government provides individuals, corporations, trusts, and estates a tax deduction for charitable contributions to qualified religious groups. See §§170, 642(c). Finally, the Federal Government and certain state governments provide tax credits for educational expenses, many of which are spent on education at religious schools. See, e.g., §25A (Hope tax credit); Minn. Stat. §290.0674 (Supp. 2001).

Perhaps most significant is that the decision holds that the burden rests on those who challenge a voucher program that meets the neutrality criterion to show that "genuine, independent" choices are not available to those who participate in the program. See the majority opinion at page 10:

Mueller, Witters, and Zobrest thus 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. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients.



[1] Chief Justice William Rehnquist, together with Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Sandra Day O'Connor. Both Justices Thomas and O'Connor authored concurring opinions.

[2] Three different cases involving the Cleveland public schools and the voucher program were consolidated and heard together.

Created July 12, 2002.