On 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 separate.

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.