Reactions to the Supreme Court Ruling on Vouchers: Introduction to an Online Special Issue
by Amy Stuart Wells - June 29, 2002
An introduction to the issues in the Cleveland Voucher Case
In a long-awaited ruling on public funding for religious school tuition, the U.S. Supreme Court upheld a Cleveland program providing students with vouchers to attend private, sectarian schools. In a 5-4 vote in the case of Zelman v. Simmons-Harris, the Court held that the voucher program does not offend the First Amendment's edict of separation of church and state because the parents, and not the religious schools themselves, receive the public funding and make "private choices" about where their children attend school. Therefore, Chief Justice Rehnquist stated in the majority opinion, this program is "entirely neutral with respect to religion."
Although the full impact of this landmark ruling will not be known for some time, many observers have argued that this decision will change the face of American education as we know it. Some claim that this is the most important Supreme Court case in education since Brown v. Board of Education 48 years ago. Only time will tell.
What we do know is that this decision marks the end of a long legal battle over critical constitutional questions of the boundaries between religion and publicly supported education. But it is important for those of us in the field of education to recognize that this ruling also marks a new beginning - a moment in which debates about the educational, and not the legal, meaning of vouchers and private school choice must come to the fore. In this way, June 27, 2002, was the dawn of a new era when opponents of such policies can no longer lean on the U.S. Constitution for support and when the fate of public, private and religious education will rest more squarely in the hands of the American public and the policy makers they elect. Of course, there will be more important legal battles down the road, but the venue of the debate has clearly shifted toward the broader public arena.
In light of this shift, Teachers College Record has prepared a special online issue of invited commentaries on the implications of the ruling and its possible long-term impact on the field of education. This special issue is part of TCR's effort to create a space for public dialogue and deliberation on important and timely debates in education. We hope that our readers will join in this dialogue by posting responses to a specific piece in the "comment on this article" section within each commentary. More general responses or comments about the Supreme Court ruling on vouchers can be entered on the Teachers College Record "Charters and Vouchers" discussion board.
To introduce these commentaries, I provide a brief description of the Cleveland voucher program below followed by an overview of the Supreme Court's ruling. What this overview points out is that although the legal implications of this case are primarily about the height of the wall between church and state, the educational implications of this decision are much broader, including issues of equal educational opportunity, school finance, student access, and accountability. In other words, this ruling does not help parents, educators or policy makers better understand what is sound or reasonable educational policy in light of a reduced legal separation of public funds and religious schools. It merely expands the boundaries of what is possible. For this reason, a dialogue about this decision and its meaning to the future of education in this country is critical.
VOUCHERS IN CLEVELAND: WHAT WE KNOW
At the center of the legal storm about public funds for private schools and the entanglement of church and state sits the Cleveland, Ohio, voucher program. Created via a 1995 Ohio law titled the Pilot Project Scholarship Program, the voucher plan was a response to the documented decline of the 76,000-student Cleveland Public Schools. Earlier that year, a Federal District Court had declared the school system to be in a "state of crisis" and ordered a state takeover of the district.
A few months later, the state legislature passed the Pilot Project legislation authorizing "financial assistance" to families residing in school districts taken over by the state government and operating under the supervision of the state superintendent. Such financial assistance comes in two forms: 1) tuition aid for K-8 grade students attending a private or public school of choice or 2) tutorial services for students who remain in the public schools.
Cleveland, as the only district that was under state control, became the site of the first pilot program -- the Cleveland Scholarship and Tutoring Program -- which went into effect for the 1996-97 school year. This program made Cleveland the second city, after Milwaukee, to operate a state-mandated voucher program.What follows is a brief overview of the scope and boundaries of the Cleveland plan.
ELIGIBILITY OF SCHOOLS AND STUDENTS
What makes the Cleveland program distinct from that of Milwaukee, is that it is not exclusively designed to serve poor students, although poor students are supposed to have the most choice. Thus, the law states that the lottery selection of students eligible for vouchers by virtue of being in a state-takeover district must give preference to low-income families - defined as those families with incomes below 200 percent of the poverty line. The state determines how many new vouchers are awarded each year within the limitations of the annual appropriation for the program. If low-income families do not use all of the available vouchers, students from families with income above the guidelines are eligible to receive the remaining vouchers.
Religious or non-religious private schools within the city of Cleveland as well as any public school within an adjacent public school district are eligible to enroll students through the voucher program. In order to participate in the program, however, the private schools must adhere to state standards for private schools and agree to a random selection process to determine voucher student enrollment if the number of applications exceeds the number of spaces available. Participating schools also must agree not to discriminate against students based on race, ethnicity, or religion. Thus, even religious private schools must accept students of all religions.
There are two different voucher payment schemes under the Cleveland plan. First of all, poor families with incomes below 200 percent of the poverty line - or about $32,000 for a family of four -- are eligible for vouchers that are either 90 percent of a private school tuition or $2,250, whichever is lower. For families with incomes above 200 percent of the poverty line, the voucher amount is limited to 75 percent of school tuition up to a maximum of $1,875. During the 2001-02 school year, the program was expected to cost a total of $14.9 million dollars.
The participating private schools must also agree not to charge low-income families for tuition in excess of 10 percent of the maximum voucher amount. Thus, the overall tuition charge for participating private schools must not exceed $2,500. In addition, the private schools must agree to allow any such tuition to be paid by the families through the provision of in-kind services instead of money.
PARTICIPATING SCHOOLS AND STUDENTS
Perhaps one of the more interesting and least discussed aspects of the Cleveland voucher program is that none of the public schools eligible to participate in the program - those in districts that are adjacent to Cleveland - elected to accept voucher students from Cleveland.
In terms of the private schools, the percentage of participating schools that are religious has increased over the life of the program. For instance, in the early years of the Cleveland voucher program, about three-fourths of the nearly 2,000 participating students attended religious schools. By the 2001-02 school year, about 4,200 voucher students were attending 51 private schools, and only 25 of those students - or less than 1 percent - were attending the 3 non-religious schools participating in the program. Furthermore, about two-thirds of the families using vouchers to send their children to religious schools do not subscribe to the religion of those schools.
According to 1999 data, voucher students in Cleveland, on average, come from families that are more likely to be headed by a single parent and have lower incomes when compared to students in the public schools. But these students' parents are also, on average, more highly educated than the parents of public school students in general, with more of them holding high school degrees and almost twice as many mothers - 14 percent of voucher student mothers versus less than 8 percent of public school mothers - having completed four-year college degrees.
The racial breakdown of the voucher students in Cleveland during the 1998-99 school year was about 73 percent African American and about 27 percent white. Thus, the voucher student population had a higher percentage of white students and a lower percentage of African American students compared to the Cleveland Public Schools student population, which is almost 80 percent African American and only 21 percent white. Also, about 60 percent of the families participating in the voucher plan have incomes below 200 percent of the poverty line.
Analyses of where the voucher students were prior to enrolling in the voucher schools show that only 21 percent were actually enrolled in the Cleveland Public Schools, while 33 percent were enrolled in private schools prior to receiving their vouchers. Another six percent of the students were entering kindergarten after attending a voucher pre-school the year before, and 40 percent of the students were attending school for the first time. Thus, general perceptions that students are using vouchers to flee public schools that they are dissatisfied with after a first-hand experience may not fit the reality of the experiences of about 80 percent of the students in the program.
EVIDENCE ABOUT THE IMPACT
The research on this program - like that on voucher programs in general - is mixed and, at times conflicting. According to the Government Accounting Office report, the contracted evaluations of voucher students' academic achievement in both Cleveland and Milwaukee found little or no difference between the performances of private versus public school students. Research by other, more pro-voucher evaluators have found slight gains for private school students in some subjects, but none of these findings are considered definitive, in part because the data are uneven and inconsistent.
Clearly far more research is needed on voucher programs and their impact on students before educators, parents and policy makers can begin to understand the educational pros and cons of private school choice plans. Still, as I point out below, the Supreme Court ruling in the Cleveland case is not about the efficacy of one educational policy over another, rather this is a case first and foremost about the wall between church and state.
THE SUPREME COURT RULLING IN ZELMAN V. SIMMONS-HARRIS
Despite the myriad of educational issues and concerns that one might raise about the political, economic and social impact of the Cleveland-based voucher program, this case has always been focused specifically on the First Amendment of the U.S. Constitution. Since 1999, when the plaintiffs first filed suit, the argument was that Ohio's Pilot Project Scholarship Program violated the constitutional separation of church and state.
The fate of the Cleveland program, therefore, has turned entirely on the Establishment Clause of the First Amendment, which states that Congress - and through the Fourteenth Amendment, the states - shall make no law respecting an establishment of religion. Over the years, as case law has evolved, the legal standard for testing a violation of the Establishment Clause was to question whether Congress or the states had enacted laws that have the "purpose" or "effect" of advancing or inhibiting religion. If it could be proven in court that a program such as the Cleveland voucher plan had the purpose or effect of either advancing or inhibiting religion, it would be declared unconstitutional.
In fact, such a determination had been made twice in this case when in December of 2000 the Sixth Circuit Court of Appeals affirmed the ruling of a District Court judge, declaring the Cleveland voucher plan in violation of the Establishment Clause. The Appellate Court ruled that the program's diversion of government aid to religious institutions served as an endorsement of religious education. The Supreme Court ruling overturned this Appellate Court decision, declaring that the voucher program had neither the purpose nor the effect of advancing religion. In fact, Chief Justice Rehnquist, writing the majority opinion dismissed the question of whether or not the program had the "purpose" of advancing or inhibiting religion because it was enacted "for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system." The legal question, Rehnquist wrote, was "whether the Ohio program nonetheless has the forbidden 'effect' of advancing or inhibiting religion.
THE MAJORITY AND CONCURRING OPINIONS
The ruling ultimately came down to the fact that five of the nine Supreme Court justices concurred that the Cleveland plan did not have such a forbidden "effect," by making a distinction between government programs that provide aid directly to religious schools versus 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."
In a very rational tone, Rehnquist's majority opinion described this ruling as highly consistent with the Supreme Court's jurisprudence with respect to "true private choice programs." The opinion argues that each time this question has been brought before them, the Supreme Court justices have rejected challenges to government programs that provide aid directly to individuals who then in turn, through their private choices, direct the government aid to religious schools or institutions. The majority cited three other Supreme Court cases - Mueller, Witters and Zobrest - in which this very issue of "individual choices" as opposed to "direct" government aid led to public funds (or tax deductions) being used to help pay for or augment religious education. Rehnquist wrote in the Opinion that in these three prior rulings, the Court made clear:
… that where a government aid program is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.
Under such circumstances, the opinion states, "The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits."Restating the legal consistency of this ruling, Rehnquist's majority opinion argues that the Court has "repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement."
Furthermore, both the majority opinion and Justice O'Conner's concurring opinion rely on the premise that the many other secular school choices available to students who live in Cleveland, (e.g., the alternative community schools, magnet schools and traditional public schools with tutorial assistance), prove that the voucher students have many non-religious choices available to them. In other words, the majority stated that with thousands of students enrolled in these various publicly provided programs, less than 20 percent of all students in Cleveland attending non-neighborhood or non-traditional public schools are enrolled in religious schools through the voucher program. Thus, the majority opinion is that the very existence of these other options in Cleveland proves that the parents who choose religious schools through the voucher program have genuine choices of religious or nonreligious institutions when deciding where to direct their government aid.
The Supreme Court concludes that the Cleveland program is neutral with respect to religion because it provides benefits directly to a wide spectrum of individuals and permits these individuals to exercise genuine choice among options public and private, secular and religious. "The program is therefore a program of true private choice." Furthermore, the justices write that in keeping with their unbroken line of decisions rejecting challenges to similar programs, "we hold that the program does not offend the Establishment Clause."
In contrast, the dissenting opinions in the case argue that the issue of "genuine choice" within the public school system should have no bearing on whether Ohio's Pilot Project Scholarship Program can constitutionally pay the tuition of a private school that will provide students with a sectarian education. In other words, the dissenting argument is that various school choice options available through the Cleveland Public Schools - options that would be there regardless of the voucher plan and are not under question in this case - should not determine the constitutionality of a separate policy that pays for private school choice. As Justice Souter argued in his dissent:
If 'choice' is present whenever there is an educational alternative to the religious school to which vouchers can be endorsed, then there will always be a choice and the voucher can always be constitutional, even in a system in which there is not a single private secular school as an alternative to the religious schools.
Indeed, a central argument made by the dissenting judges was that the size of the voucher offered through the Cleveland program was so small that it greatly prohibited the private school choices of participating families. In other words, they argued that because secular private schools generally charge higher tuition than do urban parochial schools, voucher recipients in Cleveland were really provided very few non-religious private school choices through this program. In his dissent, Souter questioned the extent to which the parents had "genuine choices." He stated: "The question is whether the private hand is genuinely free to send the money in either a secular direction or a religious one." His answer to the question was that for the overwhelming number of children participating in the voucher program, the only alternative to the public schools is religious schools.
In a separate dissent, Justice Breyer wrote that he did not believe that the "parental choice" aspect of the voucher program offset his concerns about the impact of such a voucher program on a religiously diverse society. He stated that this parental choice, for instance, cannot help taxpayers who do not choose to finance the religious education of children, nor does it help parents who see little "real choice" between an inadequate public education and education at a school where the religious teaching is contrary to their own. Breyer wrote that the choice offered through the voucher plan also fails to satisfy religious minorities who do not have the choice of a private school grounded in their beliefs. In short, Breyer argued that the so-called "genuine choices" "...will not satisfy groups whose religious beliefs preclude them from participating in a government-sponsored program, and who may feel ignored as government funds primarily support the education of children in the doctrines of the dominant religions."
Perhaps the most important aspect of Zelman v. Simmons-Harris is what it does not tell us. Thus, the point of this Introduction to the Teachers College Record special issue on this landmark ruling is to help illustrate not only the significant legal implications of this case, but also the educational policy void that it has created. While some readers may mourn the lost separation between church and state and others may rejoice in it, no one can clearly foresee the larger educational meaning of a case and a ruling that simultaneously both changes so much and changes so little.
Given the decentralized nature of our educational system, with no mention of educational rights or guarantees in the U.S. Constitution and the responsibility to provide free and adequate or appropriate education vested in the states, there is only so much impact a Supreme Court case can have on the choices that voters make about the future of their educational systems. The justices of the Sixth Circuit Court of Appeals, writing in their December 2000 ruling that declared this same Cleveland program unconstitutional, noted this limited impact of the federal judiciary. They stated:
The courts do not make educational policy; we do not sit in omnipotent judgment as to the efficacy of one scheme or program versus another. The design or specifics of a program intended to remedy the problem of failing schools and to rectify educational inequality must be reserved to the states and the school boards within them, with one caveat: the proposed programs may not run afoul of the freedoms guaranteed to all citizens in the Constitution.
The U.S. Supreme Court, in overturning this Appellate Court ruling in the Cleveland voucher case, has moved the boundaries of the freedoms guaranteed to all citizens in the Constitution. This will no doubt have a lasting impact on education and many other aspects of public policy. But the daunting responsibility of providing equal educational opportunities in urban as well as suburban communities is still left to the American public.
 Zelman v. Simmons-Harris, No. 00-1751, Opinion of the Court, slip. op. at 21 (June 27, 2002).
Fredrick M. Hess and Patrick J. McGuinn, "Muffled by the din: The competitive noneffects of the Cleveland voucher program," Teachers College Record 104 (2002): 727-764.
Hess and McGuinn, 727-764.
Since the Ohio law went into effect, Florida has passed legislation providing vouchers for students in failing schools. Also, Main and Vermont have, for decades, paid for high school students in towns with no public high schools to attend private schools. See, General Accounting Office, School Vouchers: Publicly Funded Programs in Cleveland and Milwaukee. (Washington D.C.: General Accounting Office, 2001).
 General Accounting Office, 9.
National Center for the Study of Privatization in Education. The Cleveland Scholarship and Tutoring Program: Some Basic. (New York: National Center for the Study of Privatization in Education, 2001), 1.
 General Accounting Office, 10.
 General Accounting Office, 10; National Center for the Study of Privatization in Education, 1.
Mark Walsh, "High court high noon," Education Week (February 13, 2002): 2.
Policy Matters Ohio, "Cleveland school vouchers: Where the students go," (Cleveland, OH: Policy Matters Ohio, 2002): 1.
 General Accounting Office, 10.
 National Center for the Study of Privatization in Education, 1.
 General Accounting Office, 13.
 General Accounting Office, 17.
 National Center for the Study of Privatization in Education, 1.
 General Accounting Office, 5.
Zelman v. Simmons-Harris, No. 00-1751, Opinion of the Court, slip op. at 7 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751, Opinion of the Court, slip op. at 7 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751, Opinion of the Court, slip op at 10 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751, Opinion of the Court, slip op. at 10 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751, Opinion of the Court, slip op at 13 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751, Opinion of the Court, slip op. at 21 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751, Souter, J. dissenting, slip op. at 16 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751 Opinion of the Court, slip op. at 15 (June 27, 2002).
Zelman v. Simmons-Harris, No. 00-1751 Breyer, J., dissenting, slip op. at 23 (June 27, 2002).
Simmons-Harris v. Zelman, FED App. 0411P (6th Cir.) 9-10 (2000).