Zelman v. Simmons-Harris - Supreme Court Upholds School Vouchers for Religious Schools

On June 27, 2002, the Supreme Court ruled 5-4 in Zelman v. Simmons-Harris that Cleveland’s school voucher program did not violate the Establishment Clause, even though 96% of voucher students attended religious schools. The decision, authored by Chief Justice William Rehnquist, removed the primary constitutional barrier to publicly funded private school vouchers and provided legal foundation for nationwide voucher expansion.

The case arose from Cleveland’s Pilot Project Scholarship Program, created in 1995 in response to a federal court finding that Cleveland schools were in “crisis.” The program provided tuition vouchers of up to $2,250 for low-income students to attend participating private schools. Of 56 participating private schools, 46 were religious. The Ohio Supreme Court and the Sixth Circuit Court of Appeals had struck down the program as unconstitutional state support for religious institutions.

The Supreme Court’s majority held that the program was “neutral with respect to religion” because parents, not the state, chose where to spend the vouchers. Rehnquist’s opinion established that indirect aid flowing through private choices satisfies the Establishment Clause, even when the practical effect is massive public funding of religious education. Justice O’Connor’s concurrence emphasized “true private choice” while Justice Thomas, in a concurrence, argued that failing urban schools were the real threat to minority children, not religious instruction.

Justice Souter’s dissent warned that the ruling would “authorize any public school system to be privatized” and that the “true private choice” rationale was a fiction when 96% of funds flowed to religious schools. The dissenters noted that secular private schools could not operate on $2,250 tuition while religious schools could because they received additional church subsidies and employed uncertified teachers at lower wages.

The Zelman decision was a major victory for the school choice movement, particularly the Institute for Justice, a libertarian public interest law firm that represented the voucher program and whose co-founder Clint Bolick had pioneered litigation strategies for school choice. The ruling opened the floodgates for voucher programs in Florida, Indiana, Wisconsin (religious school expansion), and eventually universal voucher programs in states like Arizona. By establishing that public funding of religious schools through “neutral” voucher mechanisms satisfies the Constitution, Zelman enabled the transfer of billions of public education dollars to religious institutions, fulfilling a decades-long goal of religious conservative and libertarian activists who viewed public education as inherently hostile to their values.