Zelman v. Simmons-Harris

In Zelman v. Simmons-Harris (2002), a bitterly divided U.S. Supreme Court upheld the voucher part of the Ohio Pilot Project Scholarship Program (OPPSP) under which qualified poor students can attend private schools, including ones that are religiously affiliated, at public expense. In so doing, the Court granted poor inner-city parents the opportunity to send their children to the schools of their choice.

Zelman traces its origins to 1992 when Governor George Voinovich asked a panel of experts to investigate whether a voucher program could be implemented in Ohio. In March 1995 the Ohio General Assembly adopted the OPPSP in response to a federal trial court order requiring judicial supervision and management of the Cleveland school district by the state superintendent of public instruction.

The primary goal of the statute was “to provide for a number of students … to receive scholarships to attend alternative schools, and for an equal number of students to receive tutorial assistance grants while attending public school” (Ohio Rev. Code Ann. § 3313.975(A)).

Under the law, students could use vouchers to attend nonpublic schools in Cleveland or public schools in contiguous public school districts.

At its heart, the OPPSP created publicly funded scholarships for students from poor families. In order to avoid First Amendment concerns, the voucher checks were made out to parents or guardians who were to endorse them before the schools could use the funds. Other parts of the law were designed to provide greater choices to parents and children via the creation of community and magnet schools; the law also contains antidiscrimination provisions. Since its implementation, only private schools participated in the OPPSP because public schools in suburban Cleveland chose not to participate in the program.

The voucher program survived an initial challenge in state court when a trial judge granted the state's motion for summary judgment on the basis that since the aid to private schools participating in the OPPSP was indirect, the statute did not violate the Establishment Clause (Gatton v. Goff, 1996). On further review, an intermediate appellate court reversed in determining that the statute had the impermissible effect of advancing religion (Simmons-Harris v. Goff, 1997). Then, the Supreme Court of Ohio decided that although the OPPSP passed analysis under Lemon v. Kurtzman (1971), it violated the state constitutional provision that requires every statute to have only one subject; the court therefore invalidated the law (Simmons-Harris v. Goff, 1999). The court stayed enforcement of its order until June 30, 1999, to avoid disrupting the then current school year. The General Assembly of Ohio addressed the court's concerns and reenacted the statute on June 29, 1999.

When opponents again filed suit, a federal trial court in Ohio, relying largely on the U.S. Supreme Court's judgment in Committee for Public Education and Religious Liberty v. Nyquist (1973). In Nyquist the Court invalidated a program from [Page 954]New York that, in part, provided tuition for lowincome children whose parents wished to send them to religious schools, enjoined the operation of the revised statute in maintaining that it violated the Establishment Clause (Simmons-Harris v. Zelman, 1999). A divided Sixth Circuit, also applying Nyquist, affirmed that the OPPSP had the impermissible effect of advancing religion (Simmons-Harris v. Zelman, 2000).

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