Zelman v. Simmons-Harris, 536 U.S. 639; 122 S. Ct. 2460 (2002)
Facts—Ohio adopted a Pilot Project Scholarship Program to enhance educa- tional choice by providing tuition aid for parents in under-performing school districts, like that in Cleveland, which were under court supervision or management. The program distributed tuition aid according to need to nearby private or public schools and tutorial assistance for qualified individuals who stayed in their existing school. Most students who participated in the program went to parochial schools. Ohio taxpayers challenged the law as a violation of the establishment clause of the First Amendment. The U.S. Supreme Court stayed a preliminary injunction issued by the District Court in this case. The District Court, affirmed by a divided vote of the U.S. Sixth Circuit Court of Appeals, subsequently granted summary judgment for the taxpayers on the basis that the law had the “primary effect” of advancing religion.
Question—Does Ohio’s Pilot Project Scholarship Program violate the es- tablishment clause of the First Amendment, as applied to the states via the Fourteenth Amendment?
Decision—No.
Reasons—C.J. Rehnquist (5–4). Rehnquist argued that the law in question had a valid secular legislative purpose to aid poor children in failing school systems. He upheld the law against challenges that it had the “primary effect” of advancing religion by relying on three cases. Mueller v. Allen (1983), Witters v. Washington Department of Services for the Blind (1986), and Zobrest v. Catalina Foothills School District (1993) have respectively authorized tax deductions for educational expenses to both public and private schools, for vocational tuition aid for a blind student studying to become a pastor, and for money to hire a sign language interpreter for a student in a parochial school. All distinguished between unconstitutional “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.” Rehnquist believed this case fell into the latter category, with the state providing no financial incentive to the religious schools that were popular choices under the program. Rehnquist further denied that any “reasonable observer” would confuse such parental choice with “the imprimatur of government endorsement,” and he did not believe that the fact that most parents who participated in the program chose alternate religious schools to be constitutionally significant.
J. O’Connor’s concurring opinion emphasized the continuity of this decision with previous ones, whereas J. Thomas’s concurrence suggested that states might be permitted greater latitude in establishment clause cases than the national government. J. Souter’s dissent viewed this opinion as a clear and unprecedented departure from Everson v. Board of Education (1947) in that it allowed tax monies to go to religious institutions. J. Souter’s dissent further expressed concern that expenditures of state monies that ended up funding religious activities could lead to discord.
