Zelman v. Simmons-Harris,
536 U.S. 639 (2002)

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No.00-1751. Argued February 20, 2002-Decided June 27, 2002*

Ohio's Pilot Project Scholarship Program gives educational choices to families in any Ohio school district that is under state control pursuant to a federal-court order. The program provides tuition aid for certain students in the Cleveland City School District, the only covered district, to attend participating public or private schools of their parent's choosing and tutorial aid for students who choose to remain enrolled in public school. Both religious and nonreligious schools in the district may participate, as may public schools in adjacent school districts. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. The number of tutorial assistance grants provided to students remaining in public school must equal the number of tuition aid scholarships. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation, none of the adjacent public schools participated, and 96% of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. Cleveland schoolchildren also have the option of enrolling in community schools, which are funded under state law but run by their own school boards and receive twice the per-student funding as participating private schools, or magnet schools, which are public schools emphasizing a particular subject area, teaching method, or service, and for which the school district receives the same amount per student as it does for a student enrolled at a traditional public school. Respondents, Ohio taxpayers, sought to enjoin the program on the ground that it violated the Establishment Clause. The Federal District Court granted them summary judgment, and the Sixth Circuit affirmed.

Held: The program does not offend the Establishment Clause.

Pp. 648-663.

*Together with No. 00-1777, Hanna Perkins School et al. v. SimmonsHarris et al., and No. 00-1779, Taylor et al. v. Simmons-Harris et al., also on certiorari to the same court.



(a) 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. See Agostini v. Felton, 521 U. S. 203, 222-223. 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. See, e. g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. 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. Pp. 648-653.

(b) The instant program is one of true private choice, consistent with the Mueller line of cases, and thus constitutional. It is neutral in all respects toward religion, and is part of Ohio's general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools-religious or nonreligious-and adjacent public schools. The only preference in the program is for lowincome families, who receive greater assistance and have priority for admission. Rather than creating financial incentives that skew it toward religious schools, the program creates financial disincentives: Private schools receive only half the government assistance given to community schools and one-third that given to magnet schools, and adjacent public schools would receive two to three times that given to private schools. Families too have a financial disincentive, for they have to copay a portion of private school tuition, but pay nothing at a community, magnet, or traditional public school. No reasonable observer would think that such a neutral private choice program carries with it the imprimatur of government endorsement. Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school. The Establishment Clause question whether Ohio is coercing parents into sending their children to religious schools must be answered by evaluating all options

Full Text of Opinion

Primary Holding

A state can create a program to give parents tuition vouchers that allow their children to attend a private or religious school of their choice, since the vouchers do not promote religious schools alone.


The Ohio state legislature created the Pilot Project Scholarship Program to help correct deficiencies in Cleveland public schools. Many schools in certain areas of the city were not meeting even baseline requirements for effective functioning. The program gave tuition vouchers worth up to $2,250 a year to parents of students in the affected areas of the Cleveland City School District so that their children could attend other public or private schools in the city or the surrounding area. Families whose children stayed in public school received financial aid for tutorial assistance. Parents could decide where their children would attend school.

Although the vouchers were intended to be allocated according to degree of need, a lottery system was imposed when many more families sought to enter the program than the legislature had made vouchers available. Almost all of the students whose families participated in the program became enrolled in religious schools, since public schools in the surrounding areas did not participate and most of the private schools in the area were operated by religious organizations.



  • William Hubbs Rehnquist (Author)
  • Sandra Day O'Connor
  • Antonin Scalia
  • Anthony M. Kennedy
  • Clarence Thomas

The standard used by the majority in this case became known as the private choice test. It required that voucher programs meet five criteria to be constitutional if they transferred children from secular to religious schools. These were that the program must have a valid secular purpose, it must cover a broad group of beneficiaries, the money must go directly to the parents rather than the schools, there must be adequate secular educational alternatives, and the program must be neutral on its face regarding religion.

All of these criteria were met in this situation, especially since all of the students were enrolled in non-functional schools, the legislature had plenty of evidence to support the need for transferring them, there was no requirement to enroll in a religious school, and not every school accepting vouchers in the area around Cleveland was religiously affiliated. The state could not be held accountable for any preference by the individual parents to send their children to religious rather than secular schools, since the funds were out of the state's control once they had been transferred to the parents. Rehnquist focused on the intent of the legislature in theory rather than the impact of its policies in reality.


  • Clarence Thomas (Author)

Connecting the First Amendment to the Fourteenth Amendment, Thomas pointed out that minority children were disproportionately affected by the failing schools in the inner city. This meant that true educational equality for children of all ethnicities could be achieved only through a voucher program.


  • Sandra Day O'Connor (Author)


  • John Paul Stevens (Author)

Stevens was not persuaded by the distinction that the majority drew between the government encouraging children to enroll in religious schools and the government funding a program through which parents chose to enroll their children in religious schools.


  • David H. Souter (Author)
  • John Paul Stevens
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

In addition to warning of conflicts with the Court's own precedents, which had not been overruled in this decision, Souter did not think that the program effectively permitted for separating religious instruction from secular education.


  • Stephen G. Breyer (Author)
  • John Paul Stevens
  • David H. Souter

Case Commentary

This decision may not have as broad an impact as it appears. Funding of religious education by the government is generally forbidden under Blaine Amendments to state constitutions, although the Court did not see the need to address the Blaine Amendment in Ohio because it was a question of state law. However, courts in many states have invalidated programs similar to the Cleveland voucher program under the Blaine Amendments.

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