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Whether Ohio’s school voucher program offends the Establishment Clause of the Constitution by allowing parents to direct tax money for tuition to private schools that may have a religious affiliation.
In the mid-1990s an Ohio state auditor found Cleveland’s public schools were in a “crisis that is perhaps unprecedented in the history of American education.” Indeed, the school district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency exam. More than two-thirds of high school students dropped out or failed out before graduation. Of those who made it to their senior years, one in four still failed to graduate, and of the remaining graduates, few could read, write, or compute at levels comparable to their counterparts in other cities. In 1995, a federal district court declared the Cleveland City School District was in a “crisis of magnitude” and placed the entire school district under state control to improve education in the city.
Subsequently Ohio initiated the Pilot Project Scholarship Program to provide more educational options to district parents, most of whom were in low-income and minority households. The program provided two forms of financial assistance to families in the district based on financial need: first, tutorial aid for students who remained in the public-school system, whereby parents arranged for registered tutors to provide assistance to their children and then submitted bills for those services to the state; and second, tuition vouchers for students who wanted to leave their schools and attend either private schools within the district or public schools in adjacent districts. The private schools could be religious or non-religious, as long as they met educational and ethical standards.
The Court Below
After failing to stop the program on the state level, Simmons-Harris filed suit in the U.S. District Court, Northern District of Ohio, against the superintendent of public education in Ohio (Zelman), asking the court to prohibit the scholarship program because they believed it violated the religious Establishment Clause of the First Amendment via the 14th Amendment. The district court granted Simmons-Harris a motion for a preliminary injunction, halting the program. The court then held that the voucher program violated the Establishment Clause. See the opinion here:
Simmons-Harris v. Zelman, 72 F.Supp.2d 834 (N.D. Ohio 1999)
The case moved to the Sixth Circuit Court of Appeals, which affirmed the lower court’s judgment for the motion for a preliminary injunction. See the opinion here:
Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000)
Zelman appealed to the Supreme Court, which reversed the lower courts and upheld the school voucher program. See the opinion here:
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
Question before the Supreme Court
“The question presented is whether this program offends the Establishment Clause of the United States Constitution[?]”
CCJ filed an amicus curiae brief in support for a petition of writ of certiorari, and also filed an amicus curiae for the writ of certiorari itself.
Amicus Brief for Petition of Writ of Certiorari
The Sixth Circuit’s decision threatens the moral education that our nation’s Founders thought critical in a republican form of government. Violence, drug abuse, sexual pressures, falling test scores, and failures to graduate in American public schools appear to be fundamentally rooted in the philosophy of moral relativism entrenched in our nation’s public school curriculum.
The sole purpose of the voucher program is to save Cleveland’s public school children from the devastating consequences of remaining in the failing school system. It is not to further the interest of religion. The program is open on equal grounds to both religious and secular schools. Other school voucher programs have been successful, with documented cases of inner city Catholic schools spending less than half of the money per student, yet achieving higher test scores. By their upholding the injunction of the lower court, the Sixth Circuit has erected an unwarranted and unconstitutional barrier to Ohio’s efforts to save their children from violence, drugs, educational mediocrity, and moral depravity.
Virtually without exception, our nation’s Founders believed that only a virtuous people are capable of self-government. The Declaration of Rights affixed to the beginning of the Virginia Constitution of 1776, for example, provides “That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” Similarly, the Founders believed virtue is inextricably tied to the need for continual moral education. The fostering of moral excellence is in turn intimately tied to religion. In George Washington’s Farewell Address, for example, the father of our country wrote that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
This is not to argue for a constitutional right to receive government financial aid for education. Rather, it is to argue whether the Constitution prohibits the removal of financial barriers for parents to further their children’s education. Without this program, if parents wanted to send their children to private schools, they would have to pay tuition plus taxation for educational services (which the parent would not utilize). This program removes that barrier by allowing them to direct taxpayer vouchers to the schools.
The Supreme Court has repeatedly ruled that an education program that incidentally benefits religion does not violate the Establishment Clause. As Eugene Volokh put it, “[The] government doesn’t necessarily endorse private choices that people make with government funds, any more than it endorses cabbage by letting people use food stamps to buy the food of their choice, which may include cabbage.” In Cleveland, any money that goes to religious institutions is merely a byproduct of independent and private individual choice. The State of Ohio is not endorsing a religion. Recipients of the funds are not defined by religion. The Ohio Supreme Court noted that the primary beneficiaries are the children, not sectarian schools. It is a facially neutral program providing parents with school choice.
Amicus Brief for Writ of Certiorari
The second of the Claremont Institute’s briefs in this case addresses whether the expansive interpretation of the Establishment Clause by the Sixth Circuit intrudes on the morals of the people and unduly interferes with the right of the parents to direct the moral upbringing of their children.
The incorporation of the Establishment Clause into the 14th Amendment is different from the incorporations of other protections clauses that were similarly applied to the states. Whereas the Free Speech and Free Exercise clauses were originally meant to protect individuals from federal encroachment of individual rights, the Establishment Clause was originally meant to prevent the federal government from interfering with state support of religion. The incorporation of the rights clauses was thus meant to protect individuals from state violations of rights.
But the incorporation of the Establishment Clause arguably contravened its original purpose by interfering with state support of religion. Instead of Congress passing no law respecting the establishment of religion, through incorporation it was the states that could pass no laws respecting the establishment of religion—but they had already been exercising this state power, which is a particularly important state power since states have also traditionally been tasked with protecting the health, safety, welfare, and morals of its citizens. It is for this reason that the state should be given more latitude in making laws that may touch on those objects.
In accordance with the Establishment Clause and its application to the states, the program does not excessively entangle government with religion. First, parents can send their children to a non-religious school. Also, the program does not religiously indoctrinate students because any religious instruction a child receives at a religious school could not be reasonably attributed to government action. Rather, it is the parents’ action, and indeed their fundamental right and duty, to direct the moral education of their children. It is the parents who send their children to these schools, and they do so because they are dissatisfied with government action to begin with—its failing to provide adequate education. By letting stand financial barriers to school choice, the Sixth Circuit is unduly interfering with the right of the parents to direct the moral upbringing of their children.
The Supreme Court upheld the school voucher program, holding that it did not violate the Establishment Clause. Agreeing with CCJ, Chief Justice Rehnquist wrote that the program was religiously neutral, that the financial aid and choice of schooling was left to the parents, and there was no inherent incentive in the program for the parents to choose a religious school. The incidental advancement of a religion, should the parent choose a religious school, was based on the individual’s choice, not the government’s direction or influence.
Justice Thomas wrote a concurring opinion in which he noted the civil rights implications of the program. Echoing CCJ’s second brief, he wrote that the selective incorporation of the Bill of Rights into the 14th Amendment should advance, not constrain, individual liberty. In this case, abrogating the program based on Establishment Clause and 14th Amendment grounds would restrict the liberty of parents to educate their children in ways most beneficial to their futures. “Thus,” he wrote, “while the Federal Government may ‘make no law respecting an establishment of religion,’ the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual liberty interest.”