Vouchers: Legal Perspectives
Martha McCarthy, Ph.D.
June 27, 2002, the Supreme Court delivered a significant school
decision in Zelman v. Simmons-Harris. In this five-to-four ruling,
the Court upheld a government scholarship program for disadvantaged
families in Cleveland that provides up to $2,500 for 90 percent
of the tuition at participating public or private schools. No
eligible public school from an adjacent district has elected
to be involved in the voucher program, and the vast majority
of the participating private schools are church-related.
The Supreme Court found no Establishment Clause violation, reasoning
that the Cleveland program facilitates “true private choice.”
The majority relied heavily on the fact that parents - not the
government - make the decision for the funds to flow to sectarian
schools. The Court equated the voucher program with permissible
state tax benefits for tuition, textbook, and transportation
expenses incurred in public or private schools, as both types
of state aid are neutral with respect to religion. The majority
noted that under the voucher program, government benefits are
provided to a broad group of individuals defined only by their
financial need and residence in the Cleveland City School District.
Even though 96 percent of the students receiving scholarships
attend religious schools, the Court majority reasoned that the
program does not provide incentives for parents to choose sectarian
schooling for their children, since they still have to contribute
a portion of the private school tuition. The Court emphasized
that a neutral program does not become
unconstitutional simply because most recipients decide to use
the aid in religious schools.
Zelman is the latest decision in a series of Supreme Court
rulings relaxing the wall of separation between church and state
in terms of government aid to religious schools. In the past
decade the Court has condoned use of public school personnel
to serve as sign language interpreters and to provide remedial
and other auxiliary services for students in religious schools.
It also has upheld the use of public funds for computers and
other instructional equipment and materials for parochial school
students. Indeed, the Court recently has dismantled most
of the decisions rendered in the 1970s and early 1980s when
it struck down various types of government aid to religious
schools and took a firm position on keeping church and state
Some have equated Zelman with the landmark Brown desegregation
case in terms of its potential to equalize educational opportunities
for disadvantaged students. But others fear that the ruling
will have a negative impact on social justice by opening the
floodgates to government support for homogeneous private schools.
A number of states are considering voucher proposals in the
wake of Zelman, and it remains to be seen whether this ruling’s
impact on the nature of American education will be as dramatic
as some anticipate.#
Martha McCarthy, PhD is the Chancellor Professor, School of
Education, Indiana University.
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