Zelman v. Simmons-Harris (2002)
Supreme Court Decisions on Religious Liberty
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Background Information
Ohio had been running the "Pilot Project Scholarship Program" which allowed parents of students in the Cleveland School District since the 1996-1997 school year to use public monies to pay for tuition at private schools, including religious schools. Aid was give to parents according to financial need, and where the aid was spent depended only upon where parents chose to enroll their children.
Between 1999 and 2000, 82%of the participating private schools were religious none of the adjacent public schools participated,and 96%of the students participating in the scholarship program were enrolled in religiously affiliated schools. Participating schools are not permitted to discriminate on the basis of race, religion, or ethnic background. They are also not allowed to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion."
Court Decision
In a 5-4 Court decision written by Chief Justice Rehnquist, with concurring opinions by Justices O'Connor, Kennedy, Scalia and Thomas, the Supreme Court found that the program did not violate the Establishment Clause of the First Amendment. In their ruling, they offered the primary reason that the program survived the first prong of the Lemon Test because it was enacted for a secular purpose, not a religious purpose.
According to the legislation, the point of allowing parents to use public money to send their children to private schools was so that parents in poor areas with failing public schools could get a better education for their children. If parents pick religious schools for their children, that has no bearing on the government:
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.
Key to the Court's ruling is that, in theory, there is no need for parents to use religious schools. So long as the law does not specify or encourage religious schools, the fact that just about all money does go to religious schools is ultimately irrelevant. Thus, government support for religion is constitutional so long as it occurs de facto and not de jure. Formally, the law is neutral with respect to religion:
...the Ohio program is neutral in all respects toward religion.It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion.
Against the challenge raised by the parents, the Court did not accept that the fact that most money goes to religious schools would cause the impression on a neutral, reasonable observer that "the State is endorsing religious practices and beliefs."
In rejecting the above arguments, Justice Stevens wrote that: first, the educational crisis in Cleveland is not something which should influence a constitutional question; second, that the range of public school choices is not relevant to the point that there is no real range of choices among private schools; and third:
...the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible. Today, however, the Court seems to have decided that the mere fact that a family that cannot afford a private education wants its children educated in a parochial school is a sufficient justification for this use of public funds.
Although not a legal argument, Stevens did make a point of stating that he was influenced by the ways in which religious strife in the world, past and present, has been aided and encouraged by children being segregated into sectarian religious schools. Stevens also joined the dissenting opinion of Souter, Breyer and Ginsburg, derided the idea that the program is genuinely "neutral" and that there is genuine "choice."
Souter was particularly vociferous in his denunciation of the fact that this decision effectively undermines the very point of prohibiting a religious establishment. First, the voucher program requires people to pay taxes which go to support religious beliefs antithetical to their own.
The second is to "save religion from its own corruption." By accepting large amounts of public money, religious schools must also necessarily accept large amounts of public oversight. Participation in the program is dependent upon adopting many rules and regulations, in particular some prohibiting various forms of religious discrimination. Thus, for example, a religious school cannot prefer children of that school's faith over nonbelievers or members of any other faith. Government control and regulation will only broaden as the amounts of public financing increase.
When government aid goes up,so does reliance on it; the only thing likely to go
down is independence. ...A day will come when religious schools will learn what
political leverage can do, just as Ohio's politicians are now getting a lesson in
the leverage exercised by religion.
[...]
Religious teaching at taxpayer expense simply cannot be cordoned from taxpayer politics, and every major religion currently espouses social positions that provoke intense opposition. Not all taxpaying Protestant citizens, for example,will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America's Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines "a nationalistic sentiment" in support of Israel with a "deeply religious" element. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife's obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention. Views like these, and innumerable others, have been safe in the sectarian pulpits and classrooms of this Nation not only because the Free Exercise Clause protects them directly, but because the ban on supporting religious establishment has protected free exercise, by keeping it relatively private. With the arrival of vouchers in religious schools, that privacy will go, and along with it will go confidence that religious disagreement will stay moderate.
Further problems were pointed out by Breyer, who asked just how a public official was supposed to go about deciding how to treat religious schools which advocate civil disobedience to unjust laws or those which use otherwise illegal drugs in religious rituals. Are these school violating the program's rules by advocating illegal conduct? Would there be public hearings to judge such schools and such religious beliefs? Or will an appointed bureaucrat make the decision on her own?
How would the public react to the public financing of a fundamentalist Muslim school which advocates the elimination of Israel and, perhaps, the elimination of democracy in the United States? What would happen if an administrator in such a school offered support to Osama bin Laden?
Significance
One definite result of this decision is that efforts to create school voucher programs will increase across the country. Religious conservatives have been hoping for exactly this outcome for quite a while.
Another likely result is that President Bush's efforts to create "faith based" programs in which public money funds social services administered by overtly religious groups will get a big boost. Such programs are now much more likely to be passed by the Congress.
Over the long term, the warnings by Souter and Breyer should be heeded - religious schools are going to seek public education money in the hopes of improving and expanding their ability to teach, but at the same time they will be accepting increasing government oversight with regards to what they teach and how they teach. Some schools already reject participation in such programs because they recognize that interference for what it is - many, however, only see the money.
One thing to watch for is the curious reasoning offered by Justice Thomas in his concurring opinion. Thomas argues that the state governments should be held to different standards than the federal government when it comes to deciding Establishment Clause cases.
...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 religious liberty interest.
Here Thomas seems to be giving people a green light to to ahead and try to have laws passed at the state level which, previously, have been struck down when enacted by the federal government.
Another curious facet of Thomas' concurring opinion is that he seems to use the necessity of a good education as part of the basis for accepting the constitutionality of Cleveland's school voucher program:
..without education one can hardly exercise the civic, political, and personal freedoms conferred by the Fourteenth Amendment. Faced with a severe educational crisis, the State of Ohio enacted wide-ranging educational reform that allows voluntary participation of private and religious schools in educating poor urban children otherwise condemned to failing public schools.
Similar reasoning might be used to bring a civil rights lawsuit against local and state governments which provide inadequate education to children. After all, if a good education is necessary to "exercise civic, political and personal freedoms, is the government then obligated to provide an adequate education?
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