This Day in Supreme Court History—February 20, 2002

On this Day in 2002, the Supreme Court heard oral arguments in Zelman v. Simmons-Harris, one of the most significant Establishment Clause cases in recent years. The Court considered whether a state program that provides school vouchers to parents that can be used to pay for education at religious schools violates the First Amendment’s prohibition on government “establishing” religion.

Ohio established the Pilot Project Scholarship Program to provide educational choices to families with children who lived in the Cleveland City School District. Both the district court and  the Sixth Circuit Court of Appeals held that by effectively channeling state funds to religious schools, Ohio had violated the Establishment Clause .

At the Supreme Court, lawyers defending the voucher program insisted that the program was religiously neutral because the state selected voucher recipients based on income and place of residence, not religion. The parents, not the state, made the decision about whether the ultimate recipient of the voucher was a religious school or a non-sectarian school. U.S. Solicitor General Theodore Olson, who argued in support of Ohio’s position in the case, argued that because parents had a choice of sectarian and non-sectarian schools, a “reasonable observer” would not “believe that the government is putting its thumb in favor of religion on the scales here.”

Justice Stephen Breyer challenged this line of argument. Imagine you are a foreigner who comes to the United States and learns that billions of government dollars are going to the support of religious schools, Breyer asked one of the lawyers defending Ohio’s program. “Wouldn’t you then say the United States of America, like France or like England, the government of the United States endorses a religious education for young children by putting money up, massive amounts?”

The lawyer countered that the Ohio program allots more funding to parents whose children attend non-sectarian schools than those whose children attend religious schools, which he insisted showed that this program did not amount to governmental endorsement of a religion.

Justice Souter was also skeptical of Ohio’s arguments. He noted that 96 percent of the families who used the vouchers chose parochial schools, and asked whether that suggests “that there is perhaps something specious about this notion that it’s a matter of wide-open choice here.” Solicitor General Olson replied that the Court had previously ruled that parents’ “purely private choices” will not be “associated by a reasonable observer with a governmental decision.”

The lawyer representing the challengers to the voucher program pressed the following argument: “Millions of dollars of unrestricted public funds are transferred each year from the state treasury into the general coffers of sectarian, private schools, and that money is used by those schools to provide an educational program in which the sectarian and the secular are interwoven. It is a given that if those funds are properly attributable to the state, the program violates the Establishment Clause.”

The audience erupted in laughter when Justice Stevens posed hypotheticals trying to locate where exactly the challengers’ lawyer would not find the Establishment Clause to have been violated. The lawyer said a voucher program in which one out of ten schools funded were sectarian would be a “borderline” case, to which Stevens responded: “Say there are a hundred: ninety-nine non-sectarian, and one sectarian… Give us something that isn’t borderline.”

On June 27, 2002, the Court ruled, in a 5-4 vote, that the voucher program did not violated the Establishment Clause. The majority reasoned that the program was enacted for the valid secular purpose of providing educational assistance to impoverished children in a failing public school system, and that the program offered private choice that did not advance religion. Justices Souter, Ginsburg, Stevens and Breyer dissented.

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