Church and state

Perhaps the least surprising of the major decisions came in the area of church-state relations. Conservatives on the Court had long been pushing for a more accommodationist interpretation of the Establishment Clause. Justices Rehnquist, Scalia, and Thomas have been the most consistent and forceful exponents of the view that the Constitution does not prohibit aid to religious institutions provided it is meted out in a non-preferential manner. They have been able to impose their view only in those few cases where they have been able to get two of the centrists, usually O'Connor and Kennedy, to join them. In one of the most closely watched issues to come before the Court in years, a 5-4 majority upheld the constitutionality of school vouchers.

The case, Zelman v. Simmons-Harris(2002), grew out of an effort by the State of Ohio to address the fact that the public schools in many of the poorer parts of Cleveland, Ohio, were deemed as failures. The legislature enacted the Pilot Project Scholarship Program in an effort to address the problem. The program provided tuition vouchers for up to $2,250 a year to some parents of students in the Cleveland City School District to attend participating public or private schools, both within the city as well as in the neighboring suburbs; it also allocated tutorial aid for students who remained in public school. The vouchers were distributed to parents according to financial need, and the parents chose where to enroll their children. Because the number of students applying to the program greatly exceeded the number of vouchers available, recipients were chosen by lottery from among the eligible families. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation, none of the adjacent suburban public schools participated, and 96% of the students in the scholarship program were enrolled in religiously affiliated schools. A group of Ohio taxpayers, backed by teachers unions, sought to enjoin the program claiming that it violated the Establishment Clause. The district court agreed, as did the Court of Appeals for the Sixth Circuit.

The Supreme Court, however, held the voucher program constitutional by a bare 5-4 majority, giving accommodationists—those who believed the First Amendment allowed public aid to religious groups on a non-preferential basis—their biggest victory so far.

Justice Rehnquist explained that the voucher plan met constitutional standards because the program had been enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. It did not advance nor inhibit religion (the second prong of the Lemon test) nor did it involve religion and government too closely in administrative details (the third prong of the Lemon test). According to the Chief Justice, 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. Government aid thus reaches religious institutions not as a result of choices made by the government (which would be a violation of the Establishment Clause) but through the deliberate choices of numerous individual recipients. Any marginal advancement of religion is the result of individuals who have received governmental aid, and not the government, whose role ends with the disbursement of benefits.

The Ohio program conferred educational assistance directly to a broad class of individuals defined without reference to religion and permitted participation of all district schools—religious or nonreligious—and adjacent public schools. The only preference was for low-income families, who received greater assistance and had priority for admission. No reasonable observer, according to the Chief Justice, would think that such a neutral private choice program carried with it the imprimatur of government endorsement.

As for the fact that an overwhelming majority of the families receiving aid sent their children to religious schools had to be viewed in light of all the educational opportunities available. The preponderance of religiously affiliated private schools was a phenomenon common to many American cities. Eighty-two percent of Cleveland's private schools were religious, as were 81% of all Ohio private schools. To attribute constitutional significance to the 82% figure would lead to the absurd result that a neutral school-choice program might be permissible in parts of Ohio where the percentage was lower, but not in Cleveland, where Ohio has deemed such programs most sorely needed. The constitutionality of a neutral educational aid program does not turn on whether most private schools in an area are religious, or that most recipients choose to use the aid at a religious school.

The dissenters called the majority ruling a "potentially tragic" mistake that would force citizens to subsidize faiths they do not share, and corrupt religion by making it dependent upon governmental aid. In his dissent, Justice Breyer warned that the ruling could lead to "religious conflict potentially harmful to the nation's social fabric." All the dissenters agreed that the wall of separation between church and state mandated by the First Amendment had been seriously weakened by the decision.

Although President Bush, long a proponent of vouchers, immediately called upon Congress to enact a national program, it is unlikely that major change will come swiftly—perhaps not even at all. So long as it appeared that voucher programs would be struck down by the courts, politicians could easily speak in favor of them, knowing that the matter would not come up for a vote. Now the fight for vouchers shifts to the legislative and political arena, and except in a few states, public opinion polls show that a majority of Americans oppose vouchers and support public schools. Legislators, who are well attuned to the wishes of their constituents, will tend to follow what they believe to be those wishes. Even in Ohio there is no massive support for the voucher plan, and it was adopted primarily as a last resort to try to address the issues of a dysfunctional school system in one city.

In addition, given the precarious financial condition of nearly every state, with revenues sharply down from the boom days of the ‘90s, one must wonder where the money would come for vouchers. Such plans are relatively expensive, and if states have no new monies, the only place they could draw from would be existing allocations to public schools, a move that would be met with enormous hostility and opposition in every state.

But the constitutional barrier is down insofar as carefully crafted voucher plans are concerned, and at least in some states, there will be a drive to create and expand voucher systems.


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