536 U.S. 639 (2002), 00-1751, Zelman v. Simmons-Harris

Docket NºSUSAN TAVE ZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL., PETITIONERS 00-1751
Citation536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604, 70 U.S.L.W. 4683
Case DateJune 27, 2002
CourtUnited States Supreme Court

536 U.S. 639 (2002)

122 S.Ct. 2460, 153 L.Ed.2d 604, 70 U.S.L.W. 4683

SUSAN TAVE ZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL., PETITIONERS 00-1751

v.

DORIS SIMMONS-HARRIS ET AL. HANNA PERKINS SCHOOL, ET AL., PETITIONERS 00-1777

v.

DORIS SIMMONS-HARRIS ET AL. SENEL TAYLOR, ET AL., PETITIONERS 00-1779

v.

DORIS SIMMONS-HARRIS ET AL.

Nos. 00-1751, 00-1777, and 00-1779

United States Supreme Court

June 27, 2002

Argued February 20, 2002[*]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Syllabus

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 scholar-ships. 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. Cleve-land 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.

Page 640

(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 towards 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 low-income families, who receive greater assistance and have priority for admission. Rather than creating financial incentives that skew it towards 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

Page 641

Ohio provides Cleveland schoolchildren, only one of which is to obtain a scholarship and then choose a religious school. Cleveland's preponderance of religiously affiliated schools did not result from the program, but is a phenomenon common to many American cities. Eighty-two percent of Cleveland's private schools are religious, as are 81% of Ohio's 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 is lower, but not in Cleveland, where Ohio has deemed such programs most sorely needed. Likewise, an identical private choice program might be constitutional only in States with a lower percentage of religious private schools. Respondents' additional argument that constitutional significance should be attached to the fact that 96% of the scholarship recipients have enrolled in religious schools was flatly rejected in Mueller. The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school. Finally, contrary to respondents' argument, Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756—a case that expressly reserved judgment on the sort of program challenged here—does not govern neutral educational assistance programs that offer aid directly to a broad class of individuals defined without regard to religion. Pp. 653-663.

234 F.3d 945, reversed.

REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., and THOMAS, J., filed concurring opinions. STEVENS, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined.

Judith L. French, Assistant Attorney General of Ohio, argued the cause for petitioners in .No. .00-4751. With her on the briefs were Betty D. Montgomery, Attorney General, David M. Gormley, State Solicitor, Karen L. Lazorishak, James G. Tassie, and Robert L, Strayer, Assistant Attorneys General, Kenneth W. Starr, and Robert R. Gasaway. David J. Young argued the cause for petitioners in No. OQ-1777. With him on the briefs were Michael R. Reed and David

Page 642

J. Hessler. Clint Bolick, William H. Mellor, Richard D. Komer, Robert Freedman, David Tryon, and Charles Fried filed briefs for petitioners in No.00-1779.

Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Gregory G. Garre, Robert M. Loeb, and Lowell V. Sturgill, Jr.

Robert H, Chanin argued the cause for respondents Simmons-Harris et al. in all cases. With him on the brief were Andrew D. Roth, Laurence Gold, Steven R. Shapiro, Raymond Vasvari, Elliot M. Mincberg, and Judith E. Schdeffer. Marvin E. Frankel argued the cause for respondents Gatton et al. in all cases." With him on the brief were David J. Strom, Donald J. Mooney, Jr., and Marc D. Stern[†]

Page 643

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

The State of Ohio has established a pilot program designed to provide educational choices to families with children who

Page 644

reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not.

There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland's public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a "crisis of magnitude" and placed the entire Cleveland school district under state control. See Reed v. Rhodes, No. 1:73 CV 1300 (ND Ohio, Mar. 3, 1995). Shortly thereafter, the state auditor found that Cleveland's public schools were in...

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413 practice notes
  • Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities
    • United States
    • Agency For International Development,Education Department,Justice Department,Labor Department
    • Invalid date
    ...of ``indirect Federal financial assistance'' to align more closely with the Supreme Court's decision in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), by removing the requirement that beneficiaries have at least one secular Clarify the existing provision that a faith-based organization part......
  • Federal Law Protections for Religious Liberty
    • United States
    • Federal Register October 26, 2017
    • October 26, 2017
    ...a secular-aid program. See, e.g., Trinity Lutheran, 582 U.S. at ___ (slip. op. at 6) (scrap tire program); Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (voucher Religious Test Clause Finally, the Religious Test Clause, though rarely invoked, provides a critical guarantee to religious ......
  • 183 P.3d 1269 (Ariz.App. Div. 2 2008), 2 CA-CV 2007-0143, Cain v. Horne
    • United States
    • Arizona Court of Appeals of Arizona
    • May 15, 2008
    ...to the individual recipient, not to the government, whose role ends with the disbursement of benefits. Zelman v. Simmons-Harris, 536 U.S. 639, 652, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) . Like the Ohio program and the measures challenged in Jordan and Kotterman, the statutes at issue here ......
  • 110 S.W.3d 458 (Tex.App. - Austin 2003), 03-02-00066, Strayhorn v. Ethical Soc. of Austin
    • United States
    • Texas Court of Appeals of Texas
    • March 6, 2003
    ...against the states by the Fourteenth Amendment should be applied differently in the state courts. E.g., Zelman v. Simmons-Harris, 536 U.S. 639, 678-79, 122 S.Ct. 2460, 2480-81, 153 L.Ed.2d 604, 633 (2002) (Thomas, J., concurring). The situation before us, however, encompasses not the policy......
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247 cases
  • 183 P.3d 1269 (Ariz.App. Div. 2 2008), 2 CA-CV 2007-0143, Cain v. Horne
    • United States
    • Arizona Court of Appeals of Arizona
    • May 15, 2008
    ...to the individual recipient, not to the government, whose role ends with the disbursement of benefits. Zelman v. Simmons-Harris, 536 U.S. 639, 652, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) . Like the Ohio program and the measures challenged in Jordan and Kotterman, the statutes at issue here ......
  • 110 S.W.3d 458 (Tex.App. - Austin 2003), 03-02-00066, Strayhorn v. Ethical Soc. of Austin
    • United States
    • Texas Court of Appeals of Texas
    • March 6, 2003
    ...against the states by the Fourteenth Amendment should be applied differently in the state courts. E.g., Zelman v. Simmons-Harris, 536 U.S. 639, 678-79, 122 S.Ct. 2460, 2480-81, 153 L.Ed.2d 604, 633 (2002) (Thomas, J., concurring). The situation before us, however, encompasses not the policy......
  • 256 F.Supp.2d 290 (D.N.J. 2003), Civ.A.02-05222, L.M. ex rel. H.M. v. Evesham Tp. Bd. of Educ.
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • March 31, 2003
    ...government resources. See Tenafly Eruv Assn. v. Tenafly, 309 F.3d 144, 174 (3d Cir.2002) (collecting cases). In Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 2476, 153 L.Ed.2d 604 Page 303 Justice O'Connor described the endorsement test as a refinement of the Lemon test: A central......
  • 11 Misc.3d 1051(A), 2006-50171, Nussenzweig v. DiCorcia
    • United States
    • New York New York Supreme Court Appelate Division
    • February 8, 2006
    ...his constitutional right to practice his religion. The free exercise clause, however, restricts state action. Zelman v. Simmon-Harris, 122 S.Ct. 2460 (2002). There is no state action complained of in this case, only the private actions of defendants. Thus, this situation is distinguishable ......
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1 firm's commentaries
  • Religious Institutions Update: March 2016
    • United States
    • JD Supra United States
    • March 2, 2016
    ...the Establishment Clause. For example, he joined the majority decision finding school vouchers constitutional in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and he also supported public displays of religion on public property and legislative prayer. Justice Scalia also joined the majorit......
124 books & journal articles
  • An overview and evaluation of state Blaine Amendments: origins, scope, and First Amendment concerns.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 26 Nbr. 2, March 2003
    • March 22, 2003
    ...ON HISTORY 164 (Liberty Fund 1979) (1943). (2.) Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 673 (1970). (3.) Zelman v. Simmons-Harris, 536 U.S. 639 (2002). For a discussion of Establishment Clause issues and vouchers for private religious education, see Michael J. Frank, The Evolving Establis......
  • Constitutional contraction: religion and the Roberts court.
    • United States
    • Stanford Law & Policy Review Vol. 26 Nbr. 2, March - March 2015
    • March 22, 2015
    ...v. ACLU, 545 U.S. 844 (2005); Van Orden v. Perry, 545 U.S. 677 (2005); Locke v. Davey, 540 U.S. 712 (2004); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002); Good News Club v. Milford Cent. Sch., 533 U.......
  • Private voucher schools and the First Amendment right to discriminate.
    • United States
    • Yale Law Journal Vol. 113 Nbr. 3, December 2003
    • December 1, 2003
    ...to prohibit discrimination in voucher schools. The "right" to discriminate may not be as expansive as many fear it to be. (1.) 536 U.S. 639 (2002). (2.) Recent work on this topic includes Jesse H. Choper, Federal Constitutional Issues, in SCHOOL CHOICE AND SOCIAL CONTROVERSY: POLI......
  • Schooling at Risk
    • United States
    • Iowa Law Review Nbr. 103-3, March 2018
    • March 1, 2018
    ...children to public schools, it granted states a broad right to regulate public school alternatives. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 663 (2002) (upholding a voucher program providing tuition aid for students attending private schools); Pierce v. Soc’y of the Sisters of the......
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26 provisions
  • Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities
    • United States
    • Agency For International Development,Education Department,Justice Department,Labor Department
    • Invalid date
    ...of ``indirect Federal financial assistance'' to align more closely with the Supreme Court's decision in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), by removing the requirement that beneficiaries have at least one secular Clarify the existing provision that a faith-based organization part......
  • Federal Law Protections for Religious Liberty
    • United States
    • Federal Register October 26, 2017
    • October 26, 2017
    ...a secular-aid program. See, e.g., Trinity Lutheran, 582 U.S. at ___ (slip. op. at 6) (scrap tire program); Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (voucher Religious Test Clause Finally, the Religious Test Clause, though rarely invoked, provides a critical guarantee to religious ......
  • Equal Participation of Faith-Based Organizations in HUD Programs and Activities: Implementation of Executive Order 13831
    • United States
    • Housing And Urban Development Department
    • Invalid date
    ...of ``indirect Federal Financial assistance'' to align more closely with the Supreme Court's definition in Zelman v. Simmons- Harris, 536 U.S. 639 (2002). B. Alternative Provider and Alternative Provider Notice Requirement Executive Order 13559 imposed notice and referral burdens on faith- b......
  • Nondiscrimination in Matters Pertaining to Faith-Based Organizations
    • United States
    • Federal Register August 06, 2015
    • August 6, 2015
    ...take their benefit and ``spend'' it, whether that provider is public or private, non-religious or religious. See Zelman v. Simmons-Harris, 536 U.S. 639, 652-53 (2002). In these instances, the government does not encourage or promote any explicitly religious programs that may be among the op......
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