Education Vouchers: An Overview of the Supreme Court's Decision in Zelman v. Simmons-Harris
CRS Report for Congress
Education Vouchers: an Overview of the
Supreme Court’s Decision in
Zelman v. Simmons-Harris
American Law Division
Education vouchers generally refer to school choice programs in which the state
will help parents pay tuition for their children to attend out-of-district public schools,
charter schools, private schools, and, sometimes, religious schools. When vouchers are
used by parents to send their children to religious school, public dollars flow from public
to religious coffers, and therefore, may violate the Establishment Clause of the First
Amendment. However, in Zelman v. Simmons-Harris, the Supreme Court upheld an
Ohio school educational choice program that gave poor families in the Cleveland public
school system an opportunity to send their children largely at state expense to private
schools, including religious schools. This report provides factual background and
summarizes the Court’s prior precedent, the Sixth Circuit’s decision, and the Supreme
Court’s analysis of the relevant constitutional issues. It will not be updated.
Background. Vouchers generally refer to school choice programs in which the
state will help parents pay tuition for their children to attend out-of-district public schools,
charter schools, private schools, and, sometimes, religious schools. A voucher can take
the form of a direct subsidy, a grant, or a tax benefit. Proponents of vouchers claim that
America’s elementary and secondary educational system are in disrepair and can only be
revitalized by making schools compete to attract students. Vouchers, they argue, are the
most feasible way to inject competition into education. Critics of vouchers decry the loss
of money to public schools, and charge that when vouchers can be used to attend a
religious school the constitutionally drawn line between church and state blurs.
In Zelman v. Simmons-Harris,1 the Supreme Court, in a 5-4 decision, upheld an Ohio
school choice program, which, among other options, gave parents vouchers which could
be used to send their children to a private, religious school. The purpose of the program
1 536 U.S. __ (2002)(slip opinion). For analysis of cases prior to Zelman, see CRS Report
RL30165, Education Vouchers: Constitutional Issues and Cases.
Congressional Research Service ˜ The Library of Congress
was to give poor families in the Cleveland public school system an opportunity to send
their children largely at state expense to schools they prefer to their local public school.
As designed, the program provided scholarships worth up to $2,250 a year for children
to attend either private schools within the city limits, including sectarian schools, or
public schools in the school districts around Cleveland. Participating schools could give
preference in admission on the basis that the student’s parents were affiliated with any
organization that provides financial support to the school, but could not discriminate on
the basis of race, religion, or ethnic background. The program does not place restrictions
on the use of the funds; monies received through the program could apparently be used
by the schools to further a religious mandate, and not just secular purposes. As an
alternative to the voucher program, parents may also accept tutorial aid to obtain special
help for students opting to remain in the Cleveland schools. Vouchers and tutorial aid are
only one aspect of Ohio’s school choice program; the Cleveland school district also offers
parents the choice to send their children to a community or magnet school, which are
secular, public schools within the city limits of Cleveland, but operate independently of
traditional Cleveland schools.
The program went into effect in the 1996-97 school year. Over the years, none of
the surrounding public school districts has chosen to participate in the program, and 82
percent of the private schools that participated were sectarian. However, the ratio of
secular to sectarian private schools participating in the voucher program does not appear
to be disproportionate, since 81 percent of the private schools in Ohio are religious
schools. Of the participating religious schools, most were pervasively sectarian – they
wove religion into traditional courses of study, mandated participation in religious
services, and required students to take religious courses. Most students in the voucher
program attended these schools. In the 1999-2000 school year, 96 percent of the students
participating in the voucher program chose to attend sectarian schools, up from 78 percent
in the 1997-1998 school year. However, when including the population of students
participating in other aspects of Ohio’s school choice program by opting to attend a
community or magnet school, the number of students attending a sectarian schools drops
from 96 to 20 percent.
Discussion. When public dollars flow from public to religious coffers, as they do
when vouchers are used by parents for religious schools, it may violate the Fourteenth
Amendment, which applies the Establishment Clause of the First Amendment against the
States, directing them “to make no law respecting an establishment of religion.”2 In
Lemon v. Kurtzman, the Supreme Court set forth the following test to determine whether
a statute withstands constitutional scrutiny: (1) the statute must have a secular legislative
purpose; (2) the principal or primary effect of the statute must neither advance nor inhibit
religion; and (3) the statute must not foster excessive governmental entanglement with3
religion. In Agostini v. Felton, a case involving direct aid to religious schools, the Court
folded the second and third prongs of the test together, since both inquiries largely rely
on the same evidence, and “the degree of entanglement has implications for whether a
2 U.S. CONST. amend I. See Everson v. Board of Education, 330 U.S. 1 (1947)(applying the
Establishment Clause of the First Amendment against the States).
3 403 U.S. 602 (1971).
statute advances or inhibits religion.”4 While the Court has been divided on the utility of
this test in cases of direct governmental aid, the Court has been consistent in cases
involving “true private choice programs” or “indirect aid,” and has affirmed the use of this
test in those cases, particularly the “primary effects” prong.5
The Ohio voucher program may result in indirect aid of religion, since public dollars
may flow from state to religious coffers through private citizens – an independent choice,
not a governmental decree, determines whether a religious school receives public aid. As
in most indirect aid cases, the primary question posed by Zelman v. Simmons-Harris is
how to apply the primary effects prong. In other indirect aid cases, the Court has reached
mixed results. In Committee for Public Education v. Nyquist, the Court struck down a
New York tuition subsidy program for low-income students in private elementary and
secondary schools.6 The program failed the Lemon test’s second prong, since it was
confined to children attending private schools, most of those schools (85-90%) were
pervasively sectarian, and, as a consequence, the programs had a primary purpose and
effect of subsidizing such schools.7 Moreover, the use of the aid was not restricted; it
could be used by participating schools to further their religious mandate. On the other
hand, the Court has upheld voucher and tax programs that benefit religious schools. In
Mueller v. Allen, the Court upheld a program that allowed parents of elementary and
secondary school children to deduct educational expenses from their state taxes, which
would include deductions of tuition payments to sectarian schools.8 In Witters v.
Washington Department of Services for the Blind, the Court upheld a vocational
rehabilitation program that allowed a blind student to attend a Bible college.9 In
upholding the programs, the Court stressed that they were designed as general welfare
programs, and did not specifically aim to provide aid to religious organizations. Instead,
they distributed funds to religious organizations based on religiously neutral criteria and
only as a result of the independent choices of the individual beneficiaries.10
The Sixth Circuit held that the Ohio program was closer to Nyquist than Mueller or
Witters, and, accordingly, held it unconstitutional.11 Given that no public school and few
secular private schools opted to participate, Ohio’s program created an incentive for
parents to send their children to religiously affiliated schools, the court found.
Accordingly, the “choice” the program provided was “illusory” and “clearly ha[d] the
impermissible effect of promoting sectarian schools,” the court held.12 The low level
scholarship amount, the court found, was the program’s primary flaw, since it essentially
locked out most private secular schools from participating, but encouraged sectarian
4 Zelman, 536 U.S. __, slip op. at 7 (O’Connor, J., concurring), citing, 521 U.S. 203 (1997).
5 Zelman, 536 U.S. __, slip op. at 7 (Opinion of the Court).
6 413 U.S. 756 (1973).
7 See also Sloan v. Lemon, 413 U.S. 825 (1973).
8 463 U.S. 388 (1983).
9 474 U.S. 481 (1986).
10 See also Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993).
11 234 F.3d 945 (6th Cir. 2000).
12 Id. at 960.
schools to participate, since they have low tuition rates. “There is no neutral aid when
that aid principally flows to religious institutions; nor is there truly ‘private choice’ when
available choices resulting from the program design are predominately religious,” the
Reversing the Sixth Circuit, the Supreme Court held that the Ohio program was
closer to Mueller and Witters than Nyquist. According to the five Justice majority, this
result “did not signal a major departure from [the] Court’s prior Establishment
jurisprudence,” even though the majority never cited the Lemon test.14 As there was no
dispute that the voucher program was enacted for the valid secular purpose of providing
educational assistance to poor children, the only question before the Court was whether
the program had “the forbidden ‘effect’ of advancing or inhibiting religion.”15 “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 governmental 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.”16 Under
such programs, the Court found that the incidental advancement or endorsement of
religion through the use of public dollars is “reasonably attributable to the individual”
decision-maker, “not to the government, whose role ends with the disbursement of
Empirical data suggesting that the Ohio voucher program had the primary effect of
advancing religion did not significantly influence the Court’s analysis. The Court
attached no constitutional significance to the fact the majority of participating private
schools were religious and found it irrelevant that most parents receiving vouchers chose
to use them at a religious school, since the Court could “perceive no principled standards
by which such statistical evidence might be evaluated.”18 For instance, statistics indicate
that 96 percent of the students participating in the voucher program chose to attend
sectarian schools, up from 78 percent in the 1997-1998 school year. However, when
including the population of students participating in other aspects of Ohio’s school choice
program (e.g., those opting to attend a community or magnet school), the number of
students attending a sectarian schools drops from 96 to 20 percent. The Court found that
it would be “arbitrary” to only sample students participating in the voucher program and
exclude students attending community or magnet schools. Thus, the Court de-emphasized
the significance of empirical data in evaluating whether the program had the primary
“effect of advancing religion.”
13 Id. at 961.
14 Zelman, 536 U.S. at __, slip op. at 7 (O’Connor, J., concurring).
15 Zelman, 536 U.S. at __, slip op. at 7 (Opinion of the Court).
16 Id. at __, slip op. at 10.
18 Id. at __, slip op. at 17 (Opinion to the Court).
Instead, the Court focused on the formal qualities of the voucher program, and held
that it was “a program of true private choice.”19 The Court found that the program was
entirely neutral with respect to religion, since it provided aid to “a wide spectrum of
individuals,” who were defined only by financial need and residence, and made no
reference to religion as a condition for participation in the program. Moreover, it found
that there were no “financial incentives” that skewed the program toward religious
schools.20 The Court also found that the program permitted qualifying individuals “to
exercise genuine choice among options public and private, secular and religious.”21
Specifically, parents 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 school, enroll in a community school, or enroll
in a magnet school.”22
Accordingly, the Court concluded that the principal or primary effect of the voucher
program neither advanced nor inhibited religion, and held that the program did not violate
the Establishment Clause.
Four dissenting justices emphasized that under existing precedent “‘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.’”23 Under this general rule, the dissent would have held the voucher program
unconstitutional, since “the overwhelming proportion of large appropriations for voucher
money must be spent on religious schools, [and, therefore, will] pay for eligible students’
instruction not only in secular subjects but in religion as well ... .”24 The dissent critiqued
the majority opinion as a “dramatic departure from basic Establishment Clause
19 Id. at __, slip op. at 21 (Opinion of the Court).
20 Id. at __, slip op. at 12 (Opinion of the Court).
21 Id. at __, slip op. at 21 (Opinion of the Court).
22 Id. at __, slip op. at 14 (Opinion of the Court).
23 Id. at __, slip op. at 2 (Souter, J., dissenting.), quoting Everson, 330 U.S. at 16 (1947).
24 Zelman 536 U.S. at __, slip op. at 3 (Souter, J., dissenting).
25 Id. at __, slip op. at 34 (Souter, J., dissenting).