The Supreme Court

Legalizing School Vouchers

The Bush Administration is a big proponent of school vouchers. The door was at least partially opened for vouchers after a 2002 Supreme Court ruling in Zelman v. Simmons-Harris.

Opponents of school vouchers believe they will force citizens—Christians, Jews, Muslims, and atheists—to pay for religious indoctrination of school children at schools with narrow parochial agendas. Estimates are that 80 percent of vouchers will be used in schools whose central mission is religious training. Religion permeates these schools in the classroom, the lunchroom, even on the athletic fields. Channeling public money in this direction, opponents believe, flies in the face of the constitutional mandate of separation of church and state.

The Zelman v. Simmons-Harris case did not give a green light for all school vouchers programs, only ones designed in a similar way to the Cleveland School District's voucher program. The Court ruled a legal voucher program must:

• Be a part of a wider program of multiple educational options including magnet schools and after-school tutorial assistance,
• Offer parents a real choice between religious and nonreligious education,
• Not only address private schools, but ensure benefits go to schools regardless of whether they are public or private, religious or not.

Zelman v. Simmons-Harris also was narrowly decided on a split 5 to 4 decision. Chief Justice Rehnquist wrote the opinion for the court with Justices O'Connor, Scalia, Kennedy, and Thomas joining. Justice O'Connor also wrote a concurring opinion joined by Thomas. Souter filed a dissenting opinion joined by Stevens, Ginsburg and Breyer. Stevens filed his own dissenting opinion and Breyer filed a dissenting opinion joined by Stevens and Souter.

Chief Justice Rehnquist wrote in the opinion announced by the Court on June 27, 2002:

• “Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion …. This Court's jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it 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.”

In his dissent, Souter wrote:

• “The Court's majority holds that the Establishment Clause is no bar to Ohio's payment of tuition at private religious elementary and middle schools under a scheme that systematically provides tax money to support the schools' religious missions. The occasion for the legislation thus upheld is the condition of public education in the city of Cleveland. The record indicates that the schools are failing to serve their objective, and the vouchers in issue here are said to be needed to provide adequate alternatives to them. If there were an excuse for giving short shrift to the Establishment Clause, it would probably apply here. But there is no excuse. Constitutional limitations are placed on government to preserve constitutional values in hard cases, like these ….
• “Today, however, the majority holds that the Establishment Clause is not offended by Ohio's Pilot Project Scholarship Program, under which students may be eligible to receive as much as $2,250 in the form of tuition vouchers transferable to religious schools. In the city of Cleveland the overwhelming proportion of large appropriations for voucher money must be spent on religious schools if it is to be spent at all, and will be spent in amounts that cover almost all of tuition. The money will thus pay for eligible students' instruction not only in secular subjects but in religion as well, in schools that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension. Public tax money will pay at a systemic level for teaching the covenant with Israel and Mosaic law in Jewish schools, the primacy of the Apostle Peter and the Papacy in Catholic schools, the truth of reformed Christianity in Protestant schools, and the revelation to the Prophet in Muslim schools, to speak only of major religious groupings in the Republic.”

The battle for school vouchers is far from over. The next round will probably be fought at either state legislatures or in the U.S. Congress as proponents try to develop voucher systems that meet the tests set by the majority in this case.

As you can see, the Supreme Court plays a major role in key education decisions that affect your child and how your child is treated inside the schools. In the next section, we'll look at the issue of sharing power between state and federal governments.

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.