Zelman v. Simmons-Harris

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Zelman v. Simmons-Harris
Seal of the United States Supreme Court.svg
Argued February 20, 2002
Decided June 27, 2002
Full case name Susan Tave Zelman, Superintendent of Public Instruction of Ohio, et al., Petitioners v. Doris Simmons-Harris, et al.'
Citations 536 U.S. 639 (more)
122 S. Ct. 2460; 153 L. Ed. 2d 604; 2002 U.S. LEXIS 4885; 70 U.S.L.W. 4683; 2002 Cal. Daily Op. Service 5788; 2002 Daily Journal DAR 7295; 15 Fla. L. Weekly Fed. S 490
Prior history On writs of certiorari to the United States Court of Appeals for the Sixth Circuit. Simmons-Harris v. Zelman, 234 F.3d 945, 2000 U.S. App. LEXIS 31367, 2000 FED App. 411P (6th Cir. Ohio 2000)
The Court ruled that the Ohio program did not violate the Establishment Clause of the First Amendment, because it passed a five-part test developed by the Court.
Court membership
Case opinions
Majority Rehnquist, joined by O'Connor, Scalia, Kennedy, Thomas
Concurrence O'Connor
Concurrence Thomas
Dissent Stevens
Dissent Souter, joined by Stevens, Ginsburg, Breyer
Dissent Breyer, joined by Stevens, Souter
Laws applied
U.S. Const. amend. I

Zelman v. Simmons-Harris, 536 U.S. 639 (2002), was a five to four decision of the United States Supreme Court that tested the allowance of school vouchers in relation to the First Amendment's Establishment Clause.

A divided Court upheld an Ohio school voucher plan.


The public schools in many of the poorer parts of Cleveland were deemed failures, and the legislature enacted the Pilot Project Scholarship Program in an effort to address the problem.[1] Ohio had been running the "Pilot Project Scholarship Program" which allowed parents of qualified students in the Cleveland School District since the 1996–97 school year to use public money to pay for tuition at private schools in the program; this included religious schools.[2] Of the fifty six private schools that agreed to the Pilot Project Scholarship Program, forty six of them were sectarian. This program aimed to improve the significantly low educational performance of the students in the Cleveland public school district [3] The program provided tuition vouchers for up to $2,250 a year to some parents of students in the Cleveland City School District to attend participating public or private schools in the city and neighboring suburbs; it also allocated tutorial aid for students who remained in public school.

The vouchers were distributed to parents according to financial need, and these parents chose where to enroll their children. Because the number of students applying to the program greatly exceeded the number of vouchers available, recipients were chosen by lottery from among the eligible families. In the 1999–2000 school year, 82 percent of the participating private schools had a religious affiliation; none of the adjacent suburban public schools joined the program; and 96 percent of the students receiving vouchers were enrolled in religiously affiliated schools and 60 percent were from low-income families, at or below the poverty line. Participating schools are not permitted to discriminate on the basis of race, religion, or ethnic background. They are also not allowed to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion."[2] A group of Ohio taxpayers then filed an action against Susan Zelman, the superintendent of public education in Ohio, pleading that this program violates the Establishment Clause.[4] Simmons-Harris along with other residents of the Cleveland area argued that the government "could not pay tuition for students to attend religious school."[3] The local federal district court, in addition to the Court of Appeals for the Sixth Circuit ruled in favor of Simmons-Harris. Zelman continued this case and appealed to the Supreme Court of the United States, in which ruled to sustain the voucher program.[3]

First Amendment[edit]

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference.[5] The First Amendment comes into play during this case because the taxpayers of Ohio said that this program was a violation of the Establishment Clause. The Establishment Clause is one of the two clauses in the First Amendment. The Establishment Clause guarantees freedom of religion, and strictly prohibits the government from passing any legislation to establish an official religion or preferring one religion over another; it enforces the "separation of church and state."[5] Since the program was designed to provide no incentive for either religious private, secular private, or public schools, the taxpayers did not want their money to pay for the children who wanted religious schooling.[6]

Synopsis of Rule of Law[edit]

A school voucher program, which offers parents the option to send their children to a private school, is not in violation of the Establishment Clause, where the vast majority of participating private schools are affiliated to a religious group.[2]


A majority of the Court examined the Cleveland program in its totality, looking at the options available for students to go to magnet schools, receive after-school counseling, additional tutoring or use a voucher to go to a private school. Key to the decision were the twin requirements of neutrality and private choice. When exploring the factors of neutrality and private choice, the overwhelming number of participants who chose religious schools is noted. Since the program was designed to provide no incentive for either religious private, secular private, or public schools, the Court found that true private choice exists.[6] It is found that the program actually provides disincentives for religious schools in that private school only received half of that allocated to community schools and only a third of that given to assist magnet schools.[3]


Delivering the opinion of the Court, Chief Justice Rehnquist declared that the school voucher program was not in violation of the Establishment Clause. The 5-4 ruling upheld the Cleveland school voucher program. Additionally, government support for religion is deemed constitutional as long as it occurs de facto and not de jure, or does not specify or encourage religious schools.[7] Maintaining the program's strictly secular aims, Chief Justice Rehnquist refers to this program merely as assistance for the poor, low performing children otherwise stuck in the communities failing public school district. Moreover, the issue is whether the school voucher program directly encourages or inhibits religion. Noting the Court's ruling in Mueller v. Allen (1983), this issue is confronted. Parallel to Mueller v. Allen (1983), the Court found that in reference to the Establishment Clause there are no religious advances. The vouchers are available to a general class of citizens who meet the needed criteria and are given a personal independent choice of voucher-accepting schools. As a state plan to make a better education readily available for poor students, there was no religious bias. Offering parents the opportunity to use the voucher for tutorial aid in public school, a scholarship for religious or nonreligious private schools, magnet schools, or enrollment in community college makes no incentive to pick a religious private school. If the parents want to pick religious schools for their children to attend, then that should have no bearing on the government.The incidental advancement of a religious mission,is reasonably inferable to the individual, not the government; the government's role ends with the expense of beliefs.[7] Chief Justice Rehnquist continues to provide defense that the program encourages the true private choice of the family. Basing school vouchers strictly on the economic means of the student, and geographic location, religious concerns are factored. Another primary issue of the case concerns the 96% of scholarship recipients who attended religious private school. That is overturned with help from the Mueller v. Allen case; the likelihood of religious private schools, in the area, at the particular time, and the decision of the student are not fundamental in the constitutionality of the voucher program. Overall, the Court ruled 5-4 that Cleveland's voucher program was religiously neutral and gave parents the benefit of true private choice.[8]


Both Justice O'Connor and Justice Thomas deliver the agreeing opinions to this decision.

Justice O'Connor: She strongly believes that the program makes no real and clear distinction between religious and non-religious schools and that both are rational education alternatives. O'Connor mentions in her concurrence that there are a great deal of beneficiaries use these community, and private non-religious schools. Due to this and the fact that true private school choice is available, the program does not technically violate the Establishment Clause.

Justice O’Connor’s concurring opinion focused on a few specific points. First, like the full majority, she emphasized that their inquiry requires an evaluation of all reasonable educational options Ohio provides the Cleveland school system, regardless of whether they are formally made available in the same section of the Ohio Code as the voucher program." She insisted that the facts are critical in cases arising under the Establishment Clause, saying that failing to look at all of the educational options is "to ignore how the educational system in Cleveland actually functions."

Second, she believed that this "decision, when considered in light of other longstanding government programs that impact religious organizations and our prior Establishment Clause jurisprudence, [does not] mark a dramatic break from the past."

Finally, Justice O’Connor believed that "[t]he share of public resources that reach religious schools is not ... as significant as respondents suggest" because, while "$8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions" without there being any serious question regarding the constitutionality of such support. Her conclusion in this case, as in many other cases, was tied closely to the facts of the case.[9]

Justice Thomas: Justice Thomas’ opinion focused on the civil rights implications of the case. Specifically he said: "Frederick Douglass once said that "[e]ducation ... means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court's observation nearly 50 years ago in Brown v. Board of Education, that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education," urban children have been forced into a system that continually fails them. These cases present an example of such failures. Besieged by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emergency when Ohio enacted its scholarship program."[9]

Thomas gives another string concurrence to this Supreme Court decision, he believes "The protection of religious liberty using the Fourth Amendment is legitimate, but to use the Establish Clause to prevent the operation of a perfectly neutral program concerning school choice is not". In keeping with this clause, Thomas simply asserts that all this program is doing essentially is providing an educational opportunity to a range of disadvantaged minority children, and that is the importance of it all.[10]


Justice Stevens’ dissent focused on the method by which the majority reached its conclusions. In his view, the Court "should ignore three factual matters that are discussed at length." Specifically, he argued that the Court should NOT consider: the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program, the wide range of choices that have been made available to students within the public school system, nor the voluntary character of the private choice to prefer a parochial education over an education in the public school system.[9]

Allocating the dissenting opinions, Justice Souter presents the voucher program as using the tax payers for religious and secular instruction. Justice Souter calls to the verdict of a similar case. Everson v. Board of Education decided that no tax shall be used to support religious means. Because Ohio's school voucher program offers aid to those who wish to attend the available religious private schools, it is in direct violation of Everson. Furthermore, allowing vouchers to be used with religious schooling advances secular learning and institutions while using Everson as a base. [11][8] Justice Souter expresses that ignoring the ruling of Everson v. Board of Education ignores that importance of neutrality and private choice.[4] Moreover, disregarding Everson promotes a new way of thinking that holds government aid as insignificant in constitutional grounds.[4]

Justice Souter, in his dissenting opinion comments on the 96.6% of current voucher money that was going to religious schools as a reflection of free choice by families; "The 96.6% reflects, instead the fact that too few nonreligious school desks are available and few, but religious schools can afford to accept more than a handful of voucher students...For the overwhelming number of children in the voucher scheme, the only alternative to the public schools is religious.[12] Souter strongly voices his denunciation on the fact that this cases' decision undermines the point of prohibiting religious establishments. He claims that it is all to save religion from its own corruption, but participation in this program is dependent on adopting rules which may come in forms of religious discrimination.[7]


The Supreme Court ruled that the Ohio program did not violate the Establishment Clause of the First Amendment to the United States Constitution, because it passed a five-part test developed by the Court in this case, titled the Private Choice Test. The decision was 5–4, with moderate justices Anthony Kennedy and Sandra Day O'Connor and conservative justices William Rehnquist, Antonin Scalia, and Clarence Thomas in the majority.

Under the Private Choice Test developed by the court, for a voucher program to be constitutional it must meet all of the following criteria:

  • the program must have a valid secular purpose
  • aid must go to parents and not to the schools
  • a broad class of beneficiaries must be covered
  • the program must be neutral with respect to religion
  • there must be adequate nonreligious options

The court ruled that the Ohio program met the five-part test in that 1) the valid secular purpose of the program was "providing educational assistance to poor children in a demonstrably failing public school system", 2) the vouchers were given to the parents, 3) the "broad class" was all students enrolled in currently failing programs, 4) parents who received vouchers were not required to enroll in a religious-based school, and 5) there were other public schools in adjoining districts, as well as non-sectarian private schools in the Cleveland area, available that would accept vouchers.

Chief Justice Rehnquist, writing for the majority, stated that "The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits." They found that, in theory, there is no need for parents to use religious schools, and so long as the law does not especially encourage the use of vouchers for religious schools, the fact that most parents do choose parochial schools is irrelevant. Indeed, the fact that in this case, the funding was given to the parents to disburse as they chose, whereas in Lemon v. Kurtzman the funding at question was given directly to the schools, this was a key part of the Private Choice test. The majority held, therefore, that the intent of the law was the important thing.

In his concurring opinion, Justice Thomas emphasized that voucher programs like the one in this case were essential because "failing urban public schools disproportionately affect minority children most in need of educational opportunity." He stated that vouchers and other forms of publicly funded private school choice are necessary to give families an opportunity to enroll their children in more effective private schools. Otherwise, "the core purposes of the Fourteenth Amendment" would be frustrated.

The dissenting opinions, on the other hand, disagreed with Chief Justice Rehnquist: Justice Stevens wrote "... the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible." Justice Souter's opinion questioned how the Court could keep Everson v. Board of Education on as precedent and decide this case in the way they did, feeling it was contradictory. He also found that religious instruction and secular education could not be separated and this itself violated the Establishment Clause.

Most state constitutions have so-called Blaine Amendments which specifically forbid state funding of religious and/or sectarian education. As a question of state rather than federal law, Ohio's Blaine Amendment was not considered by the Federal courts in Zelman.[citation needed] Other states, such as Florida, have struck down similar voucher systems as violative of the Blaine Amendment.

See also[edit]


  1. ^ Zelman, 536 U.S. at 644–45.
  2. ^ a b c "Zelman v. Simmons-Harris (2002)". About Atheism. Retrieved November 12, 2015. 
  3. ^ a b c d Gillman, Howard (2013). American Constitutionalism, Volume 2, Rights and Liberties. New York, NY: Oxford University Press. pp. 910–914. ISBN 978-0199751358. 
  4. ^ a b c "Zelman v. Simmons-Harris". Casebriefs. Bloomberg LAW. Retrieved November 12, 2015. 
  5. ^ a b "Zelman v. Simmons-Harris". Religious Liberty. First Amendment Schools. Retrieved November 12, 2015. 
  6. ^ a b c "Supreme Court Decision - Zelman v. Simmons-Harris". About.com Agnosticism/Atheism. Retrieved 2015-12-08. 
  7. ^ a b "Zelman V. Simmons Harris | Casebriefs". www.casebriefs.com. Retrieved 2015-12-04. 
  8. ^ a b c Destro, Robert A. "Legal Summary Of U.S. Supreme Court Decision in Zelman V. Simmons-Harris, 436 U.S." (PDF). The Center for Education Reform. The Center for Education Reform. Retrieved December 9, 2015. 
  9. ^ "Zelman v. Simmons-Harris | Casebriefs - Part 2". www.casebriefs.com. Retrieved 2015-12-08. 
  10. ^ [1]
  11. ^ "First Amendment Schools: The Five Freedoms - Court Case". www.firstamendmentschools.org. Retrieved 2015-12-08. 

External links[edit]

Works related to Zelman v. Simmons-Harris at Wikisource