Continuing a permissive trend in the use of tax money for parochial schools, the Supreme Court approved an Ohio program of providing low-income families with tax-subsidized vouchers to pay for tuition at private schools.

As part of plan to increase educational opportunity, the legislature of Ohio enacted a statute with a Pilot Scholarship Program that provided vouchers for low-income students to attend private schools of their choice from kindergarten through the eighth grade, with the announced goal of improving academic achievement. During the 1990-2000 school year, 96 percent of the students participating in the program attended religiously affiliated schools, and 82 percent of the participating schools had religious affiliations. Susan Tave Zelman, Ohio’s superintendent of public instruction, joined with other Ohio taxpayers to initiate a lawsuit alleging that the program violated the establishment clause of the First Amendment. The challengers prevailed in both the District Court and the Court of Appeals.

The lower courts based their decision on the three-pronged test in Lemon v. Kurtzman[c]Lemon v. Kurtzman (1971), which required a secular purpose, a secular primary impact, and no “excessive entanglement” between government and religion. For some time, however, the Supreme Court had been applying the Lemon test permissively, with less and less insistence on a “high wall” of separation between church and state. In Mueller v. Allen[c]Mueller v. Allen (1983), the Court had upheld a Minnesota law permitting a tax deduction for tuition costs at private parochial or secular schools, even though 95 percent of the deductions were for attendance at parochial schools. More recently, in Mitchell v. Helms[c]Mitchell v. Helms (2000), the justices by a 5-4 margin had upheld a federal program of providing religious schools with computers and other equipment, despite the likelihood that some equipment might be occasionally used for religious instruction.

In the Zelman case, the Supreme Court reversed the lower courts’ rulings and upheld the constitutionality of the Ohio voucher program. Speaking for a 5-4 majority, Chief Justice William H. RehnquistRehnquist, William H.;Zelman v. Simmons-Harris reasoned the program was “entirely neutral with respect to religion.” Developing a “private choice test,” he argued that the Court’s precedents had consistently recognized a distinction between government aid going directly to the schools and assistant going to private individuals who are given adequate secular options. He emphasized that the government had done nothing to encouraged the students to attend parochial rather than nonreligious schools. In a strong dissent, Justice David H. SouterSouter, David H.;Zelman v. Simmons-Harris countered that the program involved the use of tax funds to subsidize religious indoctrination.

Although the Zelman decision created great controversy, it was unlikely that vouchers would be offered in many other places. Between 1970 and 2000, eight states held elections to decide the issue, and each time the voters rejected the proposal, usually by a vote of more than 65 percent.

First Amendment

Lemon v. Kurtzman

Religion, establishment of

Rehnquist, William H.

Souter, David H.