Zelman v. Simmons-Harris, No. 00-1751.

CourtUnited States Supreme Court
Citation536 U.S. 639
Docket NumberNo. 00-1751.
PartiesZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL. <I>v.</I> SIMMONS-HARRIS ET AL.
Decision Date27 June 2002

Page 639

536 U.S. 639
ZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL.
v.
SIMMONS-HARRIS ET AL.
No. 00-1751.
Supreme Court of the United States.
Argued February 20, 2002.
Decided June 27, 2002.*

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

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 scholarships. 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. Cleveland 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 toward 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 lowincome families, who receive greater assistance and have priority for admission. Rather than creating financial incentives that skew it toward 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., post, p. 663, and THOMAS, J., post, p. 676, filed concurring opinions. STEVENS, J., filed a dissenting opinion, post, p. 684. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 686. BREYER, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined, post, p. 717.

Judith L. French, Assistant Attorney General of Ohio, argued the cause for petitioners in No. 00-1751. 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. 00-1777. 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. Schaeffer. 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 the midst of a "crisis that is perhaps unprecedented in the history of American education." Cleveland City School District Performance Audit 2-1 (Mar. 1996). The district had failed to meet any of the 18 state standards for minimal acceptable performance....

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233 practice notes
  • Carson v. Makin, No. 19-1746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 29, 2020
    ...decided Supreme Court cases: Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), and Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). In Locke, the Supreme Court rejected a free exercise challenge to a law that barred state scholarship aid from......
  • American Atheists, Inc. v. Detroit Downtown Development Authority, No. 07-2398.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2009
    ...No reasonable, reasonably informed observer, see Good News Club, 533 U.S. at 118, 121 S.Ct. 2093; see also Zelman v. Simmons-Harris, 536 U.S. 639, 655, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), moreover, would infer from the churches' participation in this program, alongside and on equal term......
  • Child Evangelism v. Montgomery County, No. 03-1534.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 30, 2004
    ...in unconstitutional coercion, we must initially view the purportedly coerced activity in context. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 656, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (explaining that in assessing whether Ohio's voucher program imposes unconstitutional coercion, "[......
  • Zhang Jingrong v. Chinese Anti-Cult World Alliance, 15–CV–1046
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 30, 2018
    ...because of religious belief avoiding a $475 million fine), supply assistance to religious schools, see, e.g. , Zelman v. Simmons–Harris , 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (upholding a school voucher program where the majority of students were enrolled in religious school......
  • Request a trial to view additional results
219 cases
  • Carson v. Makin, No. 19-1746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 29, 2020
    ...decided Supreme Court cases: Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), and Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). In Locke, the Supreme Court rejected a free exercise challenge to a law that barred state scholarship aid from......
  • American Atheists, Inc. v. Detroit Downtown Development Authority, No. 07-2398.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2009
    ...No reasonable, reasonably informed observer, see Good News Club, 533 U.S. at 118, 121 S.Ct. 2093; see also Zelman v. Simmons-Harris, 536 U.S. 639, 655, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), moreover, would infer from the churches' participation in this program, alongside and on equal term......
  • Child Evangelism v. Montgomery County, No. 03-1534.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 30, 2004
    ...in unconstitutional coercion, we must initially view the purportedly coerced activity in context. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 656, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (explaining that in assessing whether Ohio's voucher program imposes unconstitutional coercion, "[......
  • Zhang Jingrong v. Chinese Anti-Cult World Alliance, 15–CV–1046
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 30, 2018
    ...because of religious belief avoiding a $475 million fine), supply assistance to religious schools, see, e.g. , Zelman v. Simmons–Harris , 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (upholding a school voucher program where the majority of students were enrolled in religious school......
  • Request a trial to view additional results
4 books & journal articles
  • THE POLITICS OF PROPORTIONALITY.
    • United States
    • Michigan Law Review Vol. 120 Nbr. 6, April 2022
    • April 1, 2022
    ...J., dissenting). (130.) Schwartzman & Tebbe, supra note 120, at 295 (discussing Justice Breyer's dissent in Zelman v. Simmons-Harris, 536 U.S. 639, 717 (2002)); id. at 292 (discussing Justice Kagan's dissent in Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 169 (131.) See Trin......
  • Public Schools, Religious Establishments, and the U.S. Supreme Court
    • United States
    • American Politics Research Nbr. 37-1, January 2009
    • January 1, 2009
    ...W. (1991). The dynamics of political control of the bureau-cracy. American Political Science Review,85, 801-828.Zelman v. Simmons-Harris, 536 U.S. 639 (2002).McGuire / Public Schools, Religious Establishments, and the U.S. Supreme Court 73 Kevin T. McGuire is professor of political science ......
  • Outsourcing the Constitution and Administrative Law Norms
    • United States
    • American Review of Public Administration, The Nbr. 35-2, June 2005
    • June 1, 2005
    ...responsible manner. Washington, DC: Author.West v. Atkins, 487 U.S. 42 (1988).Wyatt v. Cole, 504 U.S. 158 (1992).Zelman v. Simmons-Harris, 536 U.S. 639 (2002).David H. Rosenbloom is distinguished professorof public administration in the School of Public Affairs atAmerican University in Wash......
  • The Family Vs. the State: Protecting the Rights of Parents to Raise and Educate Their Children
    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 18-2, July 2020
    • July 1, 2020
    ...v. Granville, 530 U.S. 57, 60 (2000). 115. Id. at 67. 116. Lemon v. Kurtzman, 403 U.S. 602, 612–613 (1971). 117. Zelman v. Simmons-Harris, 536 U.S. 639 (2002). 118. See Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017). 618 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:605 r......

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