Let's Talk About Vouchers, Part Three (The Majority Opinion in Zelman)

Voucher BoyWe’ve been looking at Zelman v. Simmons-Harris (2002), the case most often cited when I’m researching vouchers and their constitutionality. 

If you haven’t been with me on this lil’ journey so far, you might want to check out Part One or Part Two of this series. Or you might not. You might decide to consult other bloggers or experienced voices instead – it’s completely your choice. 

And as it turns out, “choice” is central to the Court’s 5-to-4 determination that Ohio’s voucher program was, in fact, constitutional. 

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 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.

It’s worth noting that the question before the Court was about separation of church and state, and involved this specific program. The Court did NOT decide that all voucher programs everywhere were constitutional, and it certainly did not proclaim that they were equitable, justifiable, or in any way a good idea. 

Perhaps most significantly, this decision does nothing to address the question of whether vouchers worked.  

Rehnquist goes on to lay out the severity of the situation in Cleveland and to describe state efforts to address it before getting to the legislation in question. 

It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program… The program provides financial assistance to families in any Ohio school district that is or has been “under federal court order requiring supervision and operational management of the district by the state superintendent” … 

The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent’s choosing…  Second, the program provides tutorial aid for students who choose to remain enrolled in public school… 

The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. 

Meets statewide educational standards? So that’s already different than anything proposed in Oklahoma.

Participating 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.” 

White White AcademyHere’s a fun little game. Go to Google Images and type the name of any private school – religious or not – in your area, and the word “students.” Look at all the wonderful photos which come up in your search results. Notice anything they all have in common?

I’ll give you a minute…

I’m not suggesting any of these institutions are consciously screening out students of color, or overtly shunning lower socio-economic segments of the community. I doubt they even see themselves as “white” or “affluent” or “privileged.”

They’re “normal.” It’s just that so many other people, well… aren’t. 

Aren’t you curious as to how many of these places would agree to some sort of racial equity in order to participate in a state voucher program? That’s not the specific issue being considered by the Court in Zelman, but it’s certainly a potential snag in any variation Oklahoma is likely to offer. 

Any public school located in a school district adjacent to the covered district may also participate in the program. Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student. 

As discussed last time, this is a critical element of Ohio’s program – there are vouchers, yes, but they arrive with substantial additional support for public schools as well. 

All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent.

Voucher Insufficiency

I can’t hammer this point enough. It makes all the difference in the world not that there simply be choice, but who is making that choice. If schools get to pick and choose, that’s not parent choice. If parents can’t send their kid to the school they prefer, whatever its costs, expectations, or cultural norms, then by definition that’s NOT. PARENT. CHOICE. 

Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. For these lowest-income families, participating private schools may not charge a parental co-payment greater than $250. 

Private institutions who choose to participate cannot charge the neediest parents a significant amount beyond the value of the voucher. Period. (See previous point.) 

For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap. These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate. 

In other words, parents who qualify for that 90% deal above are prioritized when allocating resources. 

Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school.

Sep Ar Atio NAs discussed last time, this is a big part of what makes the program constitutional from a “wall of separation” standpoint. 

The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment… 

You want choice, Oklahoma? Let’s add something like this to the mix. I’d even open it up to students themselves to tutor other students for money, if that proves beneficial. 

There are a few more financial details we’ll skip. 

The program is part of a broader undertaking by the State to enhance the educational options of Cleveland’s schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery…

When Oklahoma wants to do something like this, they try to remove things like minimum salary schedules and criminal background checks during times of deep budget cuts so that “empowered schools” can have “flexibility.” 

Somehow it doesn’t seem as freeing that way. 

For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive.

Community schools – a subset of public schools – received twice what vouchers were worth to private schools, in order to better innovate and serve high-needs populations. That’s much different than “we’re cutting your budget again because we’re hoping the top ten percent of your student body bails on you.” 

Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students… These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts…


Again with the variety and innovation and such, all within a public school context. Schools stepping up are supported, rather than expected to hunt down their own resources from the community or philanthropic businesses in the area. 

The decision then addresses the “separation of church and state” issue at some length. Their focus is on the distinction between direct aid to sectarian institutions and aid to parents who then choose from a variety of options, public or private, secular or religious. The former would be unconstitutional, the latter is not. 

I’ve done my best to wax pithy that issue before, and there’s nothing new here in that regard. But the Court keeps coming back to the issue of just how many choices parents were being offered in Cleveland. 

We believe that the program challenged here is a program of true private choice… and thus constitutional. As was true in those cases, 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… 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. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools…

Not ChoicesThis is where I wonder if the lack of actual parent choice in previous Oklahoma proposals might play a role. I’m not sure that takes us all the way to the other side, but I suspect it could be a factor. 

The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools.

I’m sorry, I zoned out for a moment – could you repeat that part?

The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools...

Huh. That seems significant to me. Or have I mentioned that before? 

The Court notes that not every detail included is a deal-breaker in terms of constitutionality, but that collectively these specifics help distinguish between what Ohio was doing and alternatives potentially violating the Establishment Clause by pushing parents or students towards sectarian options. 

And then there’s this:

There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. 

There it is again. Genuine, varied, financially supported public options – all over the place. The state was apparently awash in them. 

That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.

I know it gets tedious, but the number of times Rehnquist returns to this theme strikes me as significant.  

Domination Of ChurchOhio’s program is constitutional because of all of the non-religious alternatives promoted by the state. If parental choice means a majority of kids end up in religious schools, that’s fine – as long as it’s the result of true choice. That means a variety of accessible options, both religious and non, public and private. 

So just how many choices beyond one’s typical public school need be available, and to what actual percentage of parents, for this to hold true? If the Court is suggesting this program steers clear of Establishment violations because of this plethora of possibilities, what’s the “cut-off” for that to remain constitutional?

In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.

There are a few related cases we should look at, as well as some concurring and dissenting opinions in this one. At some point, too, I’m curious how things are going in Cleveland these days. 

Looks like I’ll be coming back to this topic a few more times before we’re done. Thank god there are bunnies.

Bunny and Carrot

Curious Bunny

Anya Bunnies

RELATED POST: Let's Talk About Vouchers, Part One (What Happened In Cleveland?)

RELATED POST: Let's Talk About Vouchers, Part Two (Zelman v. Simmons, 2002)

RELATED POST: A Wall of Separation - Vouchers Approacheth

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