Zelman v. Simmons-Harris / Hanna Perkins School, et al. v. Simmons-Harris, et al. / Taylor, Senel, et al. v. Simmons-Harris, et

Questions presented: Does the establishment clause of the Constitution prohibit Ohio's Pilot Scholarship and Tutorial Program, its school choice program, from authorizing parents to use tax-funded scholarships at any private school, whether religious or not?

BY MARY ELLEN MOORE & JOHN KOSS, MEDILL NEWS SERVICE

Like many inner city school districts across the country, the Cleveland public school system suffers from poor test scores, lack of resources and low teacher morale. Only a third of its students graduate from high school. During the 1999-2000 school year, the district met just three of the 27 academic standards set by the state of Ohio. The year before, it didnt meet any.

Back in 1995, a federal judge declared that the Cleveland schools were being badly managed by the local school board and placed them under the control of the state superintendent of public instruction. In response that year, the Ohio General Assembly enacted a scholarship program for students in schools subject to the order.

Under the Ohio Pilot Project Scholarship program, students between kindergarten and eighth grade can use vouchers of up to $2,250 to pay tuition at participating schools, public or private. So far, no public schools have elected to participate in the program. Of the 56 private schools that participated during the 1999-2000 school year, 46 were church-affiliated.

Almost 3,800 students used the vouchers that year, and 96 percent of them elected to attend religious schools. The program gives priority to low-income students, and about 60 percent of the children who used the vouchers came from families at or below the poverty line.

Doris Simmons-Harris, the mother of a child enrolled in the Cleveland district, filed suit in state court, challenging the scholarship program under Ohio law and under the Establishment of Religion Clause of the U.S. Constitution, which mandates the separation of church and state. Teachers unions also filed suit, claiming the program was unconstitutional because it would divert public tax dollars to private religious schools.

Judge Lisa Sadler, who combined the cases, rejected those arguments in her July 1996 ruling permitting the program. "It is simply impossible to say whether the effect of the scholarship program will be to deprive those students who do remain in the public schools of a fair educational opportunity," she wrote.

But the next spring a state appeals court found the program unconstitutional. Two years later, on May 27, 1999, the Ohio Supreme Court held the voucher program constitutional but found it in violation of Ohios "single subject" law because it had been enacted as part of a larger budget bill. In response, the Ohio legislature re-enacted the voucher program.

On July 20, 1999, Simmons-Harris filed suit again, this time in federal court. Days later, another group of plaintiffs filed suit. Both sought to enjoin the program on grounds that it violated the Establishment Clause. The next month, the U.S. District Court combined the two cases and in December the court found the voucher program in violation of the Establishment Clause.

A year later, the 6th Circuit Court of Appeals affirmed, finding the program unconstitutional because the majority of participating schools are religious. In a 2-1 decision, the appeals court relied on the outcome of a similar case, Committee for Public Education v. Nyquist, in which the Supreme Court in 1973 struck down a tuition reimbursement program in New York under the Establishment Clause. On Dec. 11, 2000, Judge Eric L. Clay wrote for the majority: "There is no neutral aid when that aid principally flows to religious institutions; nor is there truly private choice when the available choices resulting from the program design are predominantly religious."

Judge James L. Ryan dissented, arguing that the voucher program offers parents a range of options, including private religious schools, private non-religious schools and public schools. That no public schools chose to participate does not make the scholarship program invalid, he wrote. Furthermore, he argued that the decision to fund religious schools rests with the parents, not with the state. "It is difficult to imagine how a voucher statute could be crafted that more clearly and decisively forecloses the government from having any role in the religious indoctrination of Cleveland school children," Ryan concluded.

On Sept. 25, 2001, six days before the Court began its 2001-02 term, the U.S. Supreme Court granted certiorari and consolidated the three cases arising from the Ohio dispute.

Robert Chanin, who represents Simmons-Harris, said his case before the Supreme Court will follow the logic of the appeals courts decision. "Our effort here will be to convince the court not to reverse Nyquist," he said.

Clint Bollick, who founded the Institute for Justice, a legal advocacy group that favors school choice, said the case will be as significant as the landmark Brown v. Board of Education.

"This program is not about religion, its about providing educational opportunities to children who desperately need them," he said.

On June 27, 2002, the Court, divided 5-4 along ideological lines, determined that Clevelands scholarship program did not offend the 1st Amendments Establishment Clause.

According to the Courts lead opinion, written by Chief Justice William Rehnquist with Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas concurring, the Cleveland program was enacted for the "the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system."

In its opinion, the majority cited the fact that the Ohio program was neutral in all respects toward religion. According to the Court, "[the program] 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."

Justice David Souter, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and John Paul Stevens responded that the "applicability of the establishment clause to public funding of benefits to religious schools was decided in 1947 in Everson v. Board of Education of Ewing, which held that '[N]o 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.'"

The dissent accused the majority of ignoring Everson as well as ignoring the meaning of "neutrality" and "private choice" in its invocation of neutral aid provisions and private choice to sanction the Ohio law.

The majority disputed Souters assertion that because 82 percent of the private schools that participated were religious, the program must have "somehow discouraged the participation of private nonreligious schools." They refuted this point, citing the fact that 81 percent of private schools in Ohio are religious schools and that for this reason, the Cleveland program had "captured a remarkable cross-section of private schools, religious and nonreligious."

According to Souter, the high percentage of funds in Cleveland that went to religious schools reflected the fact that too few nonreligious school desks were available and few but religious schools could even afford to accept more than a handful of voucher students. For this reason, the families of the children in the voucher scheme had no "free and genuine choice" since their only alternative to public schools were religious schools.

In closing, the dissent lauded Everson's statement as the touchstone of sound law. Although the majority did not directly approved vouchers for religious schools, the dissent suggested the scheme they upheld was "clumsy" and they expressed the hope that a future court would recognize the decision as a "dramatic departure from basic establishment clause principle."

Ultimately, the majority concluded that its past decisions had drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true "private choice," in which government aid reaches religious schools only as a result of the "genuine and independent choices" of private individuals. In keeping with this unbroken line of decisions rejecting challenges to similar programs, the Court held that the program did not offend the Establishment Clause.