ANALYSIS OF VOUCHER DECISION
(Zelman, Supertintendent of Public Instruction of Ohio v. Simmons-Harris)
Disseminated by the Jewish Council for Public Affairs and Americans United for Separation of Church and State

• The decision does not validate all voucher programs. At a minimum, to be constitutional, a voucher program must be "neutral with respect to religion," must "provide[] assistance to a broad class of citizens," and if those citizens choose to use the vouchers at parochial schools, they must do so "wholly as a result of their own genuine and independent private choice."

• The Court made clear that for a voucher program to be constitutional, in addition to giving parents true private choice between religious and non-religious options, the program must not give parents incentives to pick religious schools over non-religious ones, and the non-religious options must be genuine options in practice. The opinion states that a constitutional voucher program must be "one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools," and must "provide genuine opportunities for . . . parents to select secular educational options for their school-age children."

• The opinion strongly suggests that a constitutional voucher program must not only offer parents true choice between religious and non-religious options, but also between public and private options. The court's opinion noted that the program permits "a wide spectrum of individuals, defined only by financial need and residence in a particular school district," to "exercise genuine choice among options public and private, secular and religious" and "is therefore a program of true private choice." The court's majority, as well as Justice O'Connor's concurring opinion, placed great emphasis on the wide variety of publicly-funded options available to parents eligible for the voucher program - including sending their children to regular public schools, to private non-religious schools, to secular community schools, to secular magnet schools, and to public schools of other school districts.

• The court explicitly refrained from overruling its 1973 decision in Committee for Public Education and Religious Liberty v. Nyquist, and also did not overrule its 1973 decision in Sloan v. Lemon. Both decisions struck down voucher-type programs which provided "tuition reimbursement grants" solely to parents of children attending private schools. The Court explained that the Cleveland voucher program, unlike the program in Nyquist, made assistance "available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited."

• The decision provides no support for increased direct aid to religious institutions. The opinion states, "our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools . . . and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals." The opinion further explains that, for purposes of determining whether the government is unconstitutionally endorsing religion, "a government program of direct aid to religious schools . . . differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools."

• The decision provides no support for public funding, even through vouchers, of religious institutions that discriminate on the basis of religion. The Court noted that, to participate in the program, private schools must "agree not to discriminate on the basis of race, religion, or ethnic background" or to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion."

• Voucher programs still are unconstitutional under most state constitutions, which provide tighter restrictions on aid to religious schools than the federal constitution does. We believe that 37 out of 50 state constitutions prohibit voucher aid to religious schools.

• Language in the opinion reaffirms that set-asides for religious organizations are flatly unconstitutional. It is clear from the opinion that a government aid program will be declared unconstitutional if it "differentiates based on religious status of beneficiaries or providers of services," for that is "the touchstone of neutrality [required] under the Establishment Clause."

• The Court reaffirmed the Lemon test, which prohibits government bodies from passing laws "that have the purpose or effect of advancing or inhibiting religion."

• Justice Thomas, in a concurring opinion not joined by any other Justices, took the position that the Establishment Clause should not be fully applicable to the States.