Zelman v. Simmons-Harris

Background of the Case

The Supreme Court has generally interpreted the Establishment Clause of the First Amendment to the U.S. Constitution as preventing direct governmental funding of religious institutions. However, the government can provide indirect aid in a variety of ways. For instance, taxpayers can take deductions for donations to churches, and church property is tax-exempt. The federal courts, therefore, have long struggled to draw a line with regard to the types of public financial assistance that may be provided for K-12 education in religiously affiliated nonpublic schools. A key case in this area is Zelman v. Simmons-Harris (2002), wherein the Supreme Court upheld the Ohio Pilot Scholarship Program, a plan that provides vouchers for students from low-income families in Cleveland.

School voucher policies had been a point of academic debate ever since Milton Friedman put forward the concept of universal vouchers in 1955. Actual public voucher plans have been much less ambitious than Friedman proposed and have targeted needy students. In addition to Cleveland's plan, vouchers now exist in Milwaukee and Washington, D.C. (benefiting low-income families), as well as Florida and Utah (benefiting special-needs children). Arizona, Florida, Iowa, and Pennsylvania also have policies akin to vouchers, but implemented through a tax credit mechanism. All of these policies are effectively insulated from federal constitutional challenges due to Zelman.

When considering Establishment Clause issues, the predominant approach of the current Supreme Court focuses on the idea of governmental neutrality. Under this type of analysis, the Establishment Clause prohibits the government from acting nonneutrally; by preferring one religion over another; or by promotion of, or hostility to, religion generally.

The Court, applying this neutrality approach, allowed states to provide aid in supplying nonreli-gious textbooks for students in religiously affiliated nonpublic schools (Meek v. Pittenger, 1975); reimbursement to religious schools for the grading of tests that were prepared, mandated, and administered by the state (Committee for Public Education & Religious Liberty v. Regan, 1980); parental tax deductions for school expenses, including tuition (Mueller v. Allen, 1983); a sign language interpreter for a deaf [Page 910]student who attended a Roman Catholic high school (Zobrest v. Catalina Foothills School District, 1993); reading teachers for low-performing students eligible for Title I services, including for children who attended religious schools (Agostini v. Felton, 1997); and computers for students in religious and public schools (Mitchell v. Helms, 2000).

As applied by the majority in Zelman, the neutrality principle concerned the evenhandedness of the state's distribution of public funding in the voucher program. In so finding, the Court relied on the tenet it enunciated in Everson v. Board of Education of Ewing Township (1947), distinguishing between direct aid to religious institutions and indirect aid as part of a neutrally applied program whereby funding makes its way to religious institutions only through intervening choices of parents or other third parties.

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