News: CJ Exclusives

Hurdles Remain for School Choice

Supreme Court decision still leaves room for debate

The school-choice decision in Zelman vs. Simmons-Harris was the last case decided by the Supreme Court in its 2001-02 term. Writing Voucher Wars as a chronicle leading to that decision, Clint Bolick of the Institute for Justice said, “We live in a society characterized by consumer choices — just about everywhere except in the most important service of all, elementary and secondary education.” Bolick and IJ played a pivotal role in the preparation and litigation of Zelman.

The success of Zelman for voucher advocates hinged in large part on the legal concept of “true private choice.” Parents needed market-type options, both within and without the public schools, voucher advocates argued. The Zelman decision meant that if the court’s requirements were met, a state voucher program wouldn’t violate the First Amendment Establishment Clause, and was therefore constitutional. Now that the federal question has been answered, has the door to voucher programs in the states been opened?

Not necessarily. Programs still can’t give direct aid to religious schools or religious groups. But Zelman has defined what is allowed under federal law.

Zelman “clarified the rules for determining what kinds of school-choice programs are constitutional,” said Marie Gryphon of the Cato Institute. In “True Private Choice: A Practical Guide to School Choice After Zelman v. Simmons-Harris,” Gryphon explains the five criteria necessary to meet the federal benchmark:

“True private choice”

One of the first obstacles that state voucher programs encounter are tuition payments for religious-school education. Zelman allows public funding at religious schools, assuming they serve a legitimate secular purpose. In this context, education at a religious school would likely serve both a secular and a religious purpose. If literacy and numeracy are legitimate secular purposes, for example, a Christian school that teaches math and language skills can pass the hurdle. The fact that the school promotes religious values as well would not be a barrier under the law.
According to Ira Lupu and Robert Tuttle in “Zelman‘s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles,” if government offers aid to all on the same terms, then funds going to a religious school will further a secular purpose. Government-sponsored religious indoctrination isn’t an issue under those circumstances.

A second requirement under Zelman is that aid to religious schools be indirect. Government cannot promote, or appear to promote, a specific religion. When children attend religious schools under a voucher program, parents, not the school, receive the support. In practice, the state can issue a voucher in the parents’ name, but send it to the chosen institution. The parent, exercising private choice, endorses the voucher over to the school in payment. The indirect aid requirement is designed, in part, to prevent the state from limiting the parents’ choice of schools.

The direct-indirect distinction did not originate in the Zelman case, but Zelman finally established its importance. Indirect aid, through parents, is “a necessary ingredient of a program of ‘true private choice,’” Gryphon said. No state voucher program will qualify under Zelman without meeting this requirement.

A third element of “true private choice” applies to voucher recipients. To avoid the charge that a program attempts to establish a religion, it must apply to a broad clientele. In the language of the court, the voucher program must have “a broad class of beneficiaries.”

Programs with narrowly defined beneficiaries raise a constitutional flag. Vouchers for Catholic schools have been ruled unconstitutional because they were exclusive. A program that would fund children from one religious group would be equally unconstitutional.

The “broad beneficiaries” component of true private choice would also prohibit funding that goes exclusively to private schools, religious or not. In Nyquist the ruling on vouchers exclusively for private schools was deemed unconstitutional. Even now, Nyquist retains some controversial elements for scholars. But at this point, if benefits can be claimed by a diverse group of individuals, the funding program is likely to withstand a challenge. The fact that families that could participate in a program don’t choose to do so, isn’t the pivotal issue.

Under the current interpretation of Nyquist, programs that want to pass the constitutional test must offer both secular and religious school options.

Opponents of publicly funded vouchers fear that once religious options are included, voucher programs will tilt choice toward the religious schools. But “true private choice” requires structural neutrality in voucher programs. “The choices offered can’t be rigged,” Gryphon wrote.

If programs are skewed away from the choice of a religious school, they may not run afoul of the Constitution. In Zelman, parents in Cleveland were faced with financial incentives to select a nonreligious school under the voucher plan. The program also generated incentives for nonreligious private schools to become public charter schools, a move that would increase the amount of funds they receive.

A voucher program must provide “adequate nonreligious options.” In this, Cleveland is an interesting example. Bolick and others argued during the Zelman case that public schools should be included in the alternatives available to parents. Otherwise, most of the options available in Cleveland would be religious.

The court accepted nonfailing public schools, in the form of magnet and charter schools, as “reasonable and genuine“ alternatives. The viability of nonfailing traditional schools, not considered by the court, remains an open question.


“Whatever the legal issues in a particular school choice lawsuit, our core argument throughout has been that parents, not government, should have the primary responsibility and power to determine where and how their children should be educated,” Bolick says of the institute’s role.

Because state laws vary in the details of funding restrictions, vouchers won’t become a universal feature of the education landscape right away.

Some scholars see antireligious discrimination, and the Free Exercise clause, as a future line of argument for voucher advocates. Others see the tainted history of state restrictions, because of the “Blaine amendments” to state constitutions, as a line of challenge.

Whatever the future of vouchers, it is likely to be years before many of the remaining issues are resolved.

Palasek is assistant editor at Carolina Journal.