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a journal of analysis and comment advancing public understanding of religion and education
(more on the Journal)

Fall 2002, Vol. 29 No. 2

School Vouchers and the Original Understanding of the Establishment Clause

Lane V. Sunderland

On June 27, 2002, the Supreme Court of the United States handed down a decision in the controversial Ohio Pilot Scholarship Program case. The Ohio program included tuition aid, commonly called "vouchers," for students who attended religious schools. In Zelman v. Doris Simmons-Harris, a 5-4 majority of the Supreme Court upheld the Cleveland voucher scheme, ruling that it is not a "law respecting an establishment of religion." The Ohio program resulted from a 1994 order of the United States District Court in Cleveland that directed the Ohio Superintendent of Education to address the educational crisis in Clevelandís public schools. The Ohio legislature and the governor responded with a program, the constitutionality of which was ultimately decided by the United States Supreme Court. The Court of Appeals for the Sixth Circuit, in a 2-1 decision, had ruled that the program violated the First Amendmentís Establishment Clause.

School officials, the general public, and legal analysts are sharply divided over the Establishment Clause issue and over the question of whether the issuing of school vouchers constitutes good public policy. The arguments take many forms, but in general, opponents of vouchers believe such financial assistance to parents of students in religious schools creates a chasm in the wall of separation between church and state and undermines the public schools. Proponents believe that vouchers provide an opportunity, particularly for low-income families, to escape substandard schools and that vouchers broaden the freedom of educational choice in a manner that does not violate the Establishment Clause. This article will focus on the voucher case and relevant Supreme Court precedents. Since the determinative factor in constitutional cases is not what justices have said about the Constitution, but the Constitution itself, I will also examine the original understanding of the Establishment Clause as a foundation for analyzing the voucher issue. The policy question is sometimes treated as indistinguishable from the constitutional question. Insofar as possible, I treat these questions as independent and concentrate my analysis on whether the voucher program challenged in this case violates the Establishment Clause.

[Fall 2002 Issue Contents]