Let's Talk About Vouchers, Part Two (Zelman v. Simmons-Harris, 2002)

Utah Voucher Cartoon

Zelman v. Simmons-Harris (2002) - The Syllabus 

The first section of most Supreme Court decisions is the “syllabus” of the case. It lays out the basic facts and the Court’s decision before presenting the more detailed and sometimes disparate written opinions. 

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. 

Circumstances in Cleveland were dire by any measure. The Court’s opinion recognized the decades of prior efforts to improve or reform Cleveland Public Schools. Vouchers here were not a long-sought goal looking for justification; they were a last-ditch effort when all else had failed. 

Ohio had been spending more and more on these schools in an effort to address dramatic disparities and fatal flaws – not cutting their resources and options repeatedly over the years in order to better blame them for poor performance.  

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. 

The Cleveland program allowed parents to take a percentage of what would otherwise be spent on their behalf in their local public school and use that money to offset tuition at a private school – religious or otherwise. But they also developed numerous “magnet” and “community” schools with intensive state funding and alternative approaches of their own. Or, if parents wished, the money could be applied to intensive tutoring while the child remained in their community school. 

In other words, Cleveland’s constitutional voucher program expanded options both public and private for parents and students, and made those options genuinely viable. Oklahoma has made a few token efforts along these lines, but no one could accuse the state of pouring resources and creativity into bettering education for all. 

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. 

That parental choice element is what keeps the program constitutional. 

The number of tutorial assistance grants provided to students remaining in public school must equal the number of tuition aid scholarships. 

This is an interesting provision. I’d like to learn more about how this part worked.

At first glance, it seems to ensure a general sort of equity between funds sent to private institutions and additional funds poured into students remaining in public schools. I’ll have to do more reading to clarify. 

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. 

As mentioned above, this is one of the most important distinctions between what Cleveland did and most popular plans in Oklahoma. Ohio provided massive additional support to impoverished and underperforming districts, and incentivized public schools to try a variety of ways to better serve their populations.

Voucher Cartoon  

Oklahoma, by contrast, wants to use part of the shrinking budget of an over-regulated public education system and divert it to private options. I don’t know if that makes it unconstitutional, but it makes it very, very different from what was tried in Cleveland. 

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.

So the Supreme Court, in a 5-4 split decision, agreed with the lower courts that this voucher plan was constitutionally sound. 

(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...

Citing Agostini v. Felton (1997) and Mueller v. Allen (1983), the Court decided it did not. It's the parents who choose the school, not the state. There is no bonus or penalty for choosing a religious school over a non-religious school, or vice versa.  

Although the Court doesn’t reference it by name here, this corresponds to the first prong of the “Lemon Test.”  

(b) {This voucher program} is neutral in all respects towards 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 low-income families, who receive greater assistance and have priority for admission.

Lemon TestThis addresses the second prong of the “Lemon Test” – legislation must not have the primary effect of either advancing or hindering religion. 

Rather than creating financial incentives that skew it towards 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.

This is a tricky area. The Cleveland program would pay up to 90% of private school tuition, depending on family income, but the Court seems to suggest that not quite paying all of it is part of what keeps this from wandering into government promotion of religion. At the same time, a voucher program that doesn’t pay enough towards a high quality alternative to public ed isn’t really offering choice to parents. They can want whatever they like, but if it's not financially possible, they're just as stuck as they were before. 

Here’s an excerpt from the Majority Opinion which goes into greater fiscal detail:

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… For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap… 

That, combined with the wide variety of well-financed public school options supported by the program, is much, MUCH closer to offering “parent choice” than ANYTHING I’ve seen proposed locally so far. 

MF Quote Parent Choice

The other barrier to true choice is allowing private schools to pick and choose from applicants as they wish. Here’s a passage from the Majority Opinion which addresses that element:

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.” 

That’s already problematic in Oklahoma, since those attitudes seem to largely motivate our voucher efforts in the first place. 

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… 

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

White Team

In other words, none of the participating schools can pick and choose who they do and don’t want. The practice of skimming the cream, cashing the checks, then booting out any undesirables who slipped through just before evaluation time (to be absorbed back into their local public schools who can then be blamed for their low achievement) would prove much more difficult under this system. 

As it turns out, a substantial number of Cleveland’s many Catholic schools were perfectly ready and willing to admit students from diverse racial, economic, and academic backgrounds. The same “missionary zeal” some claimed might make vouchers unconstitutional proved to be a benefit in practice, as these parochial schools considered it their “calling” to serve the population most in need of “better options.” 

I confess to a certain skepticism as to whether Oklahoma’s many private academies are anxious to fill their rooms with similar diversity. 

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… 

I’m curious to what extent this scenario is essential to the constitutionality of similar voucher programs. There’s nothing remotely comparable in the various Oklahoma proposals of which I’m aware. 

Next time we’ll look at excerpts from the actual opinions written in both support and dissent of the Court’s decision. Should be good times!

Oh, and I haven't forgotten to keep things festive: 

Cup Bunnies

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

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