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U. S. Supreme Court Decision in Zelman v. Simmons-Harris:
Discussion by Pete Wright

On June 27, 2002 the U. S. Supreme Court issued a split five-four decision in Zelman v. Simmons-Harris, et. al., the religious school / school voucher case.

Chief Justice Rehnquist authored the opinion. He was joined by Justices O'Connor, Scalia, Kennedy, and Thomas. Dissenting opinions were filed by Justices Stevens, Souter, Ginsburg, and Breyer.

Although this case is often called "the school voucher case", the word "voucher" is not mentioned in the majority opinion. Instead, the decision focuses on issues related to using tax dollars to support a religious institution. The full decision with concurring and dissenting opinions is long; the majority opinion is less than one-fourth of the decision.

The decision begins with this statement:

"The State of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not."

In the second paragraph of the decision, Chief Justice Rehnquist describes the dismal state of public education in Cleveland and the impact this has on poor children who attend Cleveland public schools (NOTE: Words and sentences in bold were added by Pete Wright to emphasize key issues and concepts):

"There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland's public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a "crisis of magnitude" and placed the entire Cleveland school district under state control. . . . Shortly thereafter, the state auditor found that Cleveland's public schools were in the midst of a "crisis that is perhaps unprecedented in the history of American education." . . . The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation. Of those students who managed to reach their senior year, one of every four still failed to graduate. Of those students who did graduate, few could read, write, or compute at levels comparable to their counterparts in other cities."

"It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program . . . (which) . . . provides financial assistance to families in any Ohio school district that is or has been 'under federal court order requiring supervision and operational management of the district by the state superintendent.'"

The following text contains selected quotes from Chief Justice Rehnquist's majority opinion:

"Cleveland is the only Ohio school district to fall within that category.

The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent's choosing. Second, the program provides tutorial aid for students who choose to remain enrolled in public school.
. . .
Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250 . . . For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap.
. . .
The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount.
. . .
In the 1999-2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998-1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the 1999-2000 school year.

The program is part of a broader undertaking by the State to enhance the educational options of Cleveland's schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools.
. . .
Community schools are funded under state law but are run by their own school boards, not by local school districts. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery.
. . .
Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students. For each student enrolled in a magnet school, the school district receives $7,746, including state funding of $4,167, the same amount received per student enrolled at a traditional public school. As of 1999, parents in Cleveland were able to choose from among 23 magnet schools, which together enrolled more than 13,000 students in kindergarten through eighth grade. These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts.
. . .
In July 1999, respondents filed this action in United States District Court, seeking to enjoin the reenacted program on the ground that it violated the Establishment Clause of the United States Constitution. . . . In December 1999, the District Court granted summary judgment for respondents. In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the "primary effect" of advancing religion in violation of the Establishment Clause. The Court of Appeals stayed its mandate pending disposition in this Court. We granted certiorari, 533 U. S. 976 (2001), and now reverse the Court of Appeals.

The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the "purpose" or "effect" of advancing or inhibiting religion. "[W]e continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the `effect' of advancing or inhibiting religion" (citations omitted)).

There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system.

Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion.
. . .
(In prior U. S. Supreme Court cases) 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. . . The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.
. . .
It is precisely for these reasons that we have never found a program of true private choice to offend the Establishment Clause.

We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or non-religious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools.
. . .
There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They 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 non-religious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.
. . .
In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. 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. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.

The judgment of the Court of Appeals is reversed.

It is so ordered."


Carter & Zellman: Increased Choices & Options for Parents:
Pete & Pam Wright

In 1993, the U. S. Supreme Court issued a unanimous decision in Florence County School District IV v. Shannon Carter. The Carter decision expanded parental choice about where disabled children could be educated and by whom.

In Carter, the school district failed to provide Shannon with an appropriate education. By the end of ninth grade, Shannon was reading at the fifth grade level and doing math at the sixth grade level.

Shannon's parents placed her in Trident Academy, a private special education school where she received an appropriate education. At Trident Academy, Shannon learned to read, write, spell and do arithmetic.

The school district refused to reimburse Shannon's parents for her education at Trident Academy because the private school did not meet state education standards.

Court: Emphasis on State Standards is "Ironic"

The Court ruled that failure to meet state standards did not bar reimbursement:

"Indeed, the school district’s emphasis on state standards is somewhat ironic. As the Court of Appeals noted, “it hardly seems consistent with the Act’s goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child’s needs in the first place.” 950 F.2d. at 164.

Expanded Parental Options

led to increased choices and options for parents of children with disabilities.

After Carter, a federal court ordered a Maryland school district to reimburse Alex Gerstmyer's parents for their son's education at a Montessori school. (Gerstmyer v. Howard County Public Schools, 850 F. Supp. 361, 20 IDELR 1327, (D. MD 1994))

Parents of children with disabilities like autism and PDD were awarded reimbursement for homebased ABA Lovaas programs. (See Mr. X v. New York (S.D. NY 1997); T. H. v. Bd. Ed. Palatine IL (N. D. IL 1999); Independent Sch. Dist. No. 318 (MN SEA 1996). For more more cases, go to the Caselaw Library and the Autism Topics page.)

The Zelman decision increases parental options and choices again.

Rod Paige: "Zelman Increases Options & Choices When System Fails"

In "A Win for America's Children," Secretary of Education Rod Paige wrote:

"It is difficult to overstate the importance of the Supreme Court's decision yesterday in Zelman v. Simmons-Harris, the Cleveland school choice case." LINK

"In Zelman, the court recognized not only the compelling need for children and families to acquire a decent education but also the importance of parents' being able to do something when their children's schools don't work . . . it is the parents who make the decision about where to send their child, not the system."

"The court correctly reasons that a public interest -- education -- can be advanced by a private, in this case religiously affiliated, institution. But the court's decision sends a more significant message. The purpose of American public education is just that, education. For a long time, our system of public education did a pretty decent job of delivering an education to most of the American people. But times have changed. By almost every indicator, the "system" is no longer up to the job.

"The No Child Left Behind Act, when fully implemented, will make it easier to determine what works and what doesn't in America's schools, and it will carry consequences for failure. Among the consequences are public school choice and access to supplemental educational services, both underwritten by federal dollars. Now the Supreme Court has opened the door to even broader school choices, not only ushering in a new era in American education policy but also potentially starting a reformation in American public education. What must emerge through this education reformation should be a focus on students and achievement, rather than on the 'system.'"

"During the last 20 years, every social and economic institution in America has undergone profound change: banking, health care, insurance, manufacturing. Until now, education seemed almost immune to the sort of change that institutions must undergo to remain relevant."

"Almost 50 years ago the Supreme Court considered the condition of American education and recognized the need to usher in a new era . . . the doctrine of "separate but equal" could not be reconciled with the Constitution's demands for equal protection. Brown v. Board of Education changed American education forever. I know because I grew up in the South when schools were segregated. With Brown, education became a civil rights issue, and the decision introduced a civil rights revolution that continues to this day."

"Zelman v. Simmons-Harris holds the same potential. It recasts the education debates in this country, encouraging a new civil rights revolution and ushering in a "new birth of freedom" for parents and their children everywhere in America." Read "A Win for America's Children" by Rod Paige.

Establishment Clause

The majority opinion, concurring opinions, and dissents focus on the Establishment Clause, i.e., using tax dollars for the purpose or effect of advancing religion.

Most public discussion of this case has focused on vouchers that allow parents to remove their children from failing public schools and place their children in private schools, including private schools that have religious affiliations. Commentators have discussed the presumed adverse financial impact to failing public schools if parents remove their children from these schools and place their children in private schools.

When you read this decision, you will see that the justices did not express concerns about a negative financial impact on public school systems even if these vouchers were limited to schools that did not have religious affiliations.

Assume for discussion that the Ohio law had limited "vouchers" to exclude schools with religious affiliations. There would have been no case.

Can we assume that vouchers are here to stay? If Congress acts to overturn the impact of Zelman, how will Congress address vouchers for private schools that do not have religious affiliations?

Readers who want to learn more about the Establishment Clause as it affects children with disabilities should read the earlier U. S. Supreme Court opinion in Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

In Zobrest, the Supreme Court held that a public school district may constitutionally use IDEA funds to provide a sign language interpreter for a deaf student at a Catholic high school. Under Zobrest, providing government services to a religious school will survive a First Amendment challenge if:

(i) the services are provided in a neutral manner without regard to religion;
(ii) the services are provided at the parochial school not as a result of legislative choice but rather as a result of the private choice of the individual utilizing the services; and
(iii) the funds traceable to the government do not "find their way into the sectarian schools' coffers."

Readers who are interested in educational policy and civil rights should read the decision by the U. S. Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954):

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

Legal Links

Brown v Board of Education (1954):

Florence County v. Shannon Carter (1993):

Decision from the U. S. Court of Appeals for the Fourth Circuit in Florence County v. Shannon Carter:

Zelman v. Simmons-Harris, et. al (2002):

Zobrest v. Catalina Foothills School District (1993):

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