Citation
Zelman v. Simmons-Harris

Material Information

Title:
Zelman v. Simmons-Harris A Public Policy Analysis
Creator:
Sciortino, Kathleen G
Place of Publication:
[Gainesville, Fla.]
Publisher:
University of Florida
Publication Date:
Language:
english
Physical Description:
1 online resource (257 p.)

Thesis/Dissertation Information

Degree:
Doctorate ( Ph.D.)
Degree Grantor:
University of Florida
Degree Disciplines:
Educational Leadership
Educational Administration and Policy
Committee Chair:
Wood, R. Craig
Committee Members:
Honeyman, David S.
Doud, James L.
Leverty, Lynn H.
Graduation Date:
8/11/2007

Subjects

Subjects / Keywords:
Education ( jstor )
Establishment Clause ( jstor )
Private schools ( jstor )
Public schools ( jstor )
Religion ( jstor )
Religious schools ( jstor )
School vouchers ( jstor )
Schools ( jstor )
Students ( jstor )
Vouchers ( jstor )
Educational Administration and Policy -- Dissertations, Academic -- UF
law, public, school
Leon County ( local )
Genre:
Electronic Thesis or Dissertation
born-digital ( sobekcm )
Educational Leadership thesis, Ph.D.

Notes

Abstract:
State and federal court decisions have been divided over the constitutionality of school voucher programs that include religious schools. In the absence of a uniform national standard, these court decisions provided mixed messages to policymakers concerning what constitutes permissible public aid to religious schools. In Zelman v. Simmons-Harris, the U. S. Supreme Court held that the Ohio Pilot Project Scholarship Program, as implemented in the Cleveland Voucher Program, does not violate the Establishment Clause of the U. S. Constitution by providing state funds to religious schools. The Court held that the program was neutral with respect to religion, and 'provide[d] assistance directly to a broad class of citizens who, in turn, direct[ed] government aid to religious schools wholly as a result of their own genuine and independent private choice.' The purpose of the study was to trace the school voucher movement in the United States, specifically examining the Ohio Pilot Project Scholarship Program and subsequent legal challenges that culminated in the U. S. Supreme Court's Zelman v. Simmons-Harris decision. The study highlighted policy trends the Court found persuasive in Zelman. The research summarized the U. S. Supreme Court Establishment Clause standards with regard to direct public aid for religious schools, traced the shift in U. S. Supreme Court Establishment Clause doctrine, summarized indirect public aid for religious schools, and described pertinent judicial decisions the Court found applicable in Zelman. A review of litigation was presented pertaining to the Cleveland Voucher Program which led directly to the U. S. Supreme Court decision in Zelman v. Simmons-Harris. The study reviewed school voucher legislation since the Zelman decision. To discover central issues, traditional legal research methods were used to examine and analyze the permissible use of publicly funded vouchers in support of religious schools. ( en )
General Note:
In the series University of Florida Digital Collections.
General Note:
Includes vita.
Bibliography:
Includes bibliographical references.
Source of Description:
Description based on online resource; title from PDF title page.
Source of Description:
This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Thesis:
Thesis (Ph.D.)--University of Florida, 2007.
Local:
Adviser: Wood, R. Craig.
Statement of Responsibility:
by Kathleen G Sciortino.

Record Information

Source Institution:
University of Florida
Holding Location:
University of Florida
Rights Management:
Copyright Sciortino, Kathleen G. Permission granted to the University of Florida to digitize, archive and distribute this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.
Resource Identifier:
662509265 ( OCLC )
Classification:
LD1780 2007 ( lcc )

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Full Text








School Voucher Opponents ............ .......__ ...............97..
School Voucher Politics .............. ...............101....
Democrats/Republicans .............. ...............103....
Summary ............ .......__ ...............104..

3 ESTABLISHMENT CLAUSE JURISPRUDENCE ................ ............... ......... ...107


Introducti on ................. ........... ...............107......
Doctrinal Background .............. ...............109....
Strict Separation ................. ...............112......... ......
Nonpreferentialism ................. ...............113......... ......
Government Neutrality ................. ...............114......... ......
Early Cases: Separationist Perspective ................. ...............115...............
Landmark Lemon and Progeny .............. ...............121....
Transition to Government Neutrality ................. ...............135...............
Significant Doctrinal Shift ................. ...............142................
Sum m ary ................. ...............149......... ......

4 ZELMAN v SIMMONS-HARRIS DECISION .............. ...............152....


Introducti on ................ .. ...... ........ .. ...............152.....
The Ohio Pilot Proj ect Scholarship Program ................. ...............154........... ..
Legal Challenges to the Voucher Program ................. ...............158..............
U. S. Supreme Court Decision ................. ...............167........... ...
Mueller, Witters, and Zobrest..................... ........... ...............169.....
Supreme Court Responses to Respondent's Argument .............. .....................7
Concurring Opinions .............. ...............176....
Justice O'Connor's concurrence ................. ......................... ............176
Justice Thomas' concurrence .............. ...............178....
Dissenting Opinions .............. ...............179....
Justice S outer' s di ssent. ................ ................ ......... ........ ........ 179
Justice Steven' s di ssent ................. ...............18. 0.............
Justice Breyer' s dissent ................ ...............180...............
Significance .............. ...............181....
Im plications .............. ...............186....

5 SUMMARY, CONCLUSIONS, IMPLICATIONS, AND RECOMMENDATIONS .........190


Summary .................. ............. ....... .__ ... ...... ........9
Parent' s Rights, a Persuasive Policy School Voucher Argument. ................. ............._..192
U. S. Supreme Court Establishment Clause Standards in Zelman .............. ....................19
Direct Aid to Religious Schools ............ ......_ ...............196
Shift in Establishment Clause Doctrine ....._ .....___ .........__ ............9
Indirect Aid to Religious Schools ............ ......_ .. ...............19
Applicable Judicial Decisions .............. ...............199....
Cleveland School Voucher Program Litigation............... ...............20
School Voucher Legislation after Zelman .............. ...............204....










where they will live. Too often attending the neighborhood school places poor children into

schools populated entirely of other poor children.

Various educational reforms have been proposed,6 SOme reforms have even been shown to

have a positive effect,' but in general, the piecemeal approach to educational reform has not

resulted in enduring and comprehensive improvement in urban public schools.8 One

controversial solution to the desperate needs of urban public schools is to change the way school

systems are governed through school choice.9 In theory, school choice reforms, which include

charter schools and school vouchers, are dedicated to improving the quality of education.

Increased educational options are made available to parents of children enrolled in public schools

and thereby make public schools more directly accountable to parents for educational outcomes.

Educational policy in the United States is a complex system of decision-making that

focuses on the critical question of how public education should be governed, and by whom. In

order to understand the role of public participation in education and educational policy, it is first

necessary to note the respective roles of the federal, state, and local government in public

education. Currently, legislatures at both the federal and state level are active in creating

educational policy. 10



6 See i.e., Back-to-Basics curricula, teacher professional development, class-size reduction, raised graduation
requirements, comprehensive school reform, high-stakes testing, abolition of social promotion, site-based
management, and innumerable reading and math programs.

SSee Geoffrey D. Borman, Robert E. Slavin, Alan Cheung, Anne Chamberlain, Nancy Madden, and Bette
Chambers. "The National Randomized Field Trial of Success for All: Second-Year Outcomes." American
Educational Research Journal 42 (4), 673-696. (April, 2005). Available at
http://www.successforall.org/_images/pdfs/FEYa2Otoe~o (last visited Feb. 2, 2007).

SFrederick Hess. Spinning Wheels: the Politics of Urban School Reform. Washington, D.C.: Brookings Institution
Press, 1999.

9 Carl Krueger and Todd Ziebarth, "No Child Left Behind Policy Brief: School Choice." Education Commission of
the States, April 2002. Available at httpl w\ \\ \\ .ecs.org/clearinghouse/3 5/21/3 521.pdf (last visited Feb. 26, 2007).

'0 Frances C. Fowler. Policy Studies for Educational Leaders. New York: Prentice-Hall Inc., 2000.













Pennsylvania ............... ...... .._. ._ ...............23_ 4....

Pennsylvania Constitution ..............._ ...............234......_ ......

Pennsylvania Statute Ann ........._._.. ..... .___ ...............23 4....
C ases ........._._.. ..... ___ ...............23 4....

Verm ont ........._._ ........_. ...............23 4....

Statutes .............. ...............234....

Cases ........._._.. ..... ___ ...............234.....

Virginia ........._._.. ..... ___ ...............235.....
Washington ........._..... ...... ...._._....... .. ._ ............23

Washington Constitution Article 1, @ 11 .............. ...............235....

Washington Revised Code .............. ...............235....
Cases ........._._.. ..... ___ ...............235.....

Wisconsin .............. ........ ...............235

Wisconsin Constitution .............. ...............235....

W isconsin Act .............. ...............235....

W isconsin Statute ........._._ ........_. ...............235....

Cases ........._._.. ..... ___ ...............236.....


LIST OF REFERENCE S ........._._. ........_. ...............237....


BIOGRAPHICAL SKETCH .............. ...............257....










The school children and the state alone are the beneficiaries."12 The Court unanimously upheld

the state rationale and constructed, what has become known as, the "child benefit" theory. Chief

Justice Hughes writing for the maj ority wrote:

Viewing the statute as having the effect thus attributed to it, we cannot doubt that the
taxing power of the state is exerted for a public purpose. The legislature does not segregate
private schools or their pupils, and its beneficiaries, or attempt to interfere with any matters
of exclusively private concern. Its interest is education, broadly; its method
comprehensive. Individual interests are aided only as the common interest is safeguarded.
Judgment affirmed.13

The Court ruled that the Fourteenth Amendment does indeed, forbid the states from

depriving a person of life, liberty, or property without due process of law. However, according to

the Court' s ling the provision of secular texts to all school children serves the public interest

and not a private interest of church schools in such a way as to violate the due process clause.

The Louisiana statute that allowed providing secular textbooks to students attending private

religious schools and to those attending public school was found constitutional.14

Doctrinal Background

In aid to religious school cases, the critical provision of the U. S. Constitution is the

Establishment Clause of the First Amendment, which reads: "Congress shall make no law

respecting an establishment of religion. ."15 A brief review of the Court's Establishment Clause

jurisprudence is necessary in order to understand how Zelman v. Simmons Harris aligns with

previous U. S. Supreme Court decisions. This chapter relies on narrative and opinion excerpts to

demonstrate how the U. S. Supreme Court, during the past sixty years, has interpreted the


'12 d. at 375.

13 Id. at374

14 Perry A. Zirkel. A Digest of Supreme Court Decisions ii tX r,,_ Education (3rd ed.). Bloomington, IN: Phi Delta
Kappa, 1995.
1s U.S. Const. Amend. I










respect to religion,"'os with vouchers provided "to a wide spectrum of individuals, defined only

by Financial need and residence in a particular school district."106 Participants in this program are

permitted to "exercise genuine choice among options public and private, secular and

religious."'07 The Court, therefore, found the program to be one of "true private choice."los Chief

Justice Rehnquist wrote the opinion of the Court and was j oined by Justices O'Connor, Scalia,

Kennedy, and Thomas. Justices O'Connor and Thomas wrote separate concurring opinions. Of

the four dissenting justices, three wrote dissenting opinions.

While the maj ority did not explicitly refer to the Lemon test, the criteria were briefly

addressed. The Court held that Cleveland' s voucher plan was "a program of true private

choice,"109 one "in which government aid reaches religious schools only as a result of genuine

and independent choices of private individuals."110 The Court held that the decision to use state

funds at a religious school "is reasonably attributable to the individual recipient, not to the

government, whose role ends with the disbursement of benefits.""l

Chief Justice Rehnquist, began his written analysis of the Ohio voucher program by

distinguishing impermissible direct aid to religious school programs from indirect programs

where the private choices of individuals determine whether, and how much, public aid reaches

religious schools.112 The Court held that the Cleveland voucher program was in the latter


105 Id. at 662.

106Id~

107 Id.

10s Id

109 Id. at 649.

110 d.

III Id. at 652.

"1Id. at 649.









Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy

ZELM~ANv. SALVIONS-HARRIS: A PUBLIC POLICY ANALYSIS

By

Kathleen Guzman Sciortino

August 2007

Chair: R. Craig Wood
Major: Educational Leadership

State and federal court decisions have been divided over the constitutionality of school

voucher programs that include religious schools. In the absence of a uniform national standard,

these court decisions provided mixed messages to policymakers concerning what constitutes

permissible public aid to religious schools. In Zelman v. Simmons-Harris, the U. S. Supreme

Court held that the Ohio Pilot Proj ect Scholarship Program, as implemented in the Cleveland

Voucher Program, does not violate the Establishment Clause of the U. S. Constitution by

providing state funds to religious schools. The Court held that the program was neutral with

respect to religion, and provided[] assistance directly to a broad class of citizens who, in turn,

directed] government aid to religious schools wholly as a result of their own genuine and

independent private choice."

The purpose of the study was to trace the school voucher movement in the United States,

specifically examining the Ohio Pilot Proj ect Scholarship Program and subsequent legal

challenges that culminated in the U. S. Supreme Court's Zelman v. Simmons-Harris decision.

The study highlighted policy trends the Court found persuasive in Zelman. The research

summarized the U. S. Supreme Court Establishment Clause standards with regard to direct

public aid for religious schools, traced the shift in U. S. Supreme Court Establishment Clause










Democrats/Republicans

Politicians are divided on the school voucher issue mostly along party lines, with

Democrats typically opposed and Republicans generally in favor. Both political parties recognize

that education is an important issue to voters and American society. They recognize the public

demand for more flexibility and accountability in education with failing schools being a priority.

Maj or educational policy differences exist between the Republican and Democratic Parties

regarding the appropriate degree of federal involvement in public and private schools.204 Both

parties appear to have concerns regarding the effect of school vouchers. Republicans worry that

the state might interfere with private education through the type of rules and regulations found in

public education, while Democrats are concerned with the possibility of school vouchers

draining resources from public schools.205 The Republican Party is in favor of family choice in

the selection of public, private, or for-profit schools while Democrats prefer parent choice to be

limited solely to public schools (i.e., charter schools and magnet schools).

Prior to the George W. Bush presidential victory, Republicans championed many

unpopular policies such as eliminating the Department of Education, cutting education spending,

and proposing private school youchers.206 According to the Republican point of view, the two

national teachers' unions, the National Education Association (NEA) and the American

Federation of Teachers (AFT), dictate the educational policies of the Democratic Party.207 In


2 Joel Spring. 4merican Education 9th edition. New York, NY: McGraw-Hill Higher Education, 2000, 22.

2 2004 Democratic National Convention Committee, Inc. "Strong at Home, Respected in the World: The 2004
Democratic National Platform for America." July 27, 2004, 34. Available
http://www.democrats.org/pdfs/2004platforpd (last visited Feb. 2, 2007).
206 Andrew J. Rotherham. "How Bush Stole Education." Democratic Leadership Council Blueprint Magazine.
March 25, 2002. Available httpl w\ il \\ ndol.org/ndol_ci.cfm?kaid= 110&subid=18 1&contentid=250319

207 David J. Strom and Stephanie S. Baxter. "From the Statehouse to the Schoolhouse: How Legislatures and Courts
Shaped Labor Relations for Public Education Employees During the Last Decade." Journal of Law and Education.
30, 2 (April 2001): 275-303.









CHAPTER 5
SUMMARY, CONCLUSIONS, IMPLICATIONS, AND RECOMMENDATIONS

The primary units of analysis for this study were investigations of the constitutionality of

school vouchers that provide public aid to religious schools into case law and legislative record.

In addition, scholarly commentary about school vouchers in terms of public policy was also used

as a source of analysis. The literature review of this study provided a theoretical framework from

which to interpret the observations of school voucher interest groups and their role in the

legislative policy formation process.

On September 25, 2001, the U. S. Supreme Court agreed to review a U. S. Sixth Circuit

Court of Appeals' ruling, which held that Ohio' s Pilot Scholarship Program violated the

Establishment Clause of the First Amendment.' The Sixth Circuit Court based the decision on

precedent from the U. S. Supreme Court' s Conanittee for Public Education v. Nyquist,2 which

held a New York tuition subsidy for low-income students in private schools unconstitutional.

The U. S. Supreme Court had previously declined to hear appeals arising from other school

choice programs.3 COnSiderable attention was focused on Zelnzan v. Sinanons-HarriS4 because

the Court's rationale would have significant implications for other states considering any type of

state aid which might result in financial assistance to religious schools. If, in reaching the Zelman

decision, the Court had concluded that the Ohio voucher plan unconstitutionally advances

religion, the national school voucher movement might have been severely stalled. Alternately, if


SSiminons-Harris v. Zelinan, 234 F.3d 945 (6ti' Cir. 2000).

2 413 U.S. 756 (1973).

3 See Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), cert. denied, 525 U.S. 997 (1998); Bagle v Raymond Sch.
Dept., 728 A.2d 127 (Me. 1999), cert. denied, 528 U.S. 947 (1999); Strout v. 41banese, 178 F.3d 57 (1"t Cir. 1999),
cert. denied, 528 U.S. 931 (1999); and Chittenden Town School District v. Verinont Department of Education (97-
275); 169 Vt. 310: 738 A.2d 539 (1999).

S536 U.S. 639 (2002).









The court found it unnecessary to rule regarding the separation of church and state in the

Florida Constitution question after finding OSP violates the public education provision. The

Florida Supreme Court ruling is final and cannot be appealed to the U. S. Supreme Court since

no federal issues were involved. At this time, it is unclear whether the OSP ruling offers a legal

basis for challenging Florida' s other voucher program.

The John M. McKay Scholarship for Students with Disabilities Programl29 is a Separate

scholarship program and distinct from the Opportunity Scholarship Program. Parents of a public

school student with a disability who are dissatisfied with their child's progress may request and

receive from the state a scholarship for their child to enroll in another Florida public school or an

eligible private school. Students with special needs include those who are mentally handicapped,

speech and language impaired, deaf or hard of hearing, visually impaired, dual sensory impaired,

physically impaired, emotionally handicapped, specific learning disabled, hospitalized or

homebound, or autistic.

McKay Scholarship recipients must have spent the prior school year in attendance at a

Florida public school. The parents must also obtain admission of their child to an eligible private

school and notify in writing the school district of the request for a scholarship at least sixty days

prior to the date of the first scholarship payment. Parents may choose, as an alternative, to enroll

their child with special needs in and transport their child to a public school in an adj acent school

district which has available space and has a program with the services agreed to in the student's

individual education plan (IEP).

The maximum scholarship granted for an eligible student with disabilities is the calculated

amount equivalent to the base student allocation in the Florida Education Finance Program


129 Fla. Stat., Title XVI, Chapter 229.05371(2001).










program must be limited to nonreligious schools. But the Court stated, "we conclude that the

Chittenden School District tuition-payment system, with no restrictions in funding religious

education, violates (the Vermont Constitution). The major deficiency in the .. system is that

there are no restrictions that prevent the use of public money to fund religious education .. We

decide only that the current statutory system, with no restrictions on the purpose or use of the

tuition funds violates Article 3."140 In December 1999, the U. S. Supreme Court, without

comment, declined to hear an appeal from families of students seeking to attend religious

schools.141

In Maine, families who reside in districts without a public school may send their children

to a public school in a neighboring school district or receive reimbursement from the town for

the cost of tuition to send their children to approved nonreligious private schools within or

outside of the state.142 The town is partially or fully reimbursed for the expense by the state.

The maximum allowable reimbursement is $6,305.143 If a private school enrolls 60 percent or

more publicly funded students, the school must participate in the statewide assessment program,

which includes administration of the Maine Educational Assessment.

Religious school tuition was funded by local and state government until the law was

changed in 1983. Public funds may still be used to pay for busing, textbooks, and special

educational services at religious schools. The legislation excluding religious schools was

challenged in two separate cases, one suit in state courts of Maine and one in federal court. 144 In


140 Chittenden, at 562-563.

'41 4ndrews v. Vermont Department ofEducation, 120 S.Ct. 626 (1999).

'42 Me. Rev. Stat. Ann. Tit. 20-A 117 2951.

143 Me. Rev. Stat. Ann. Tit. 20-A 219 5804 (tuition allowed for elementary school students) and Me. Rev. Stat.
Ann. Tit. 20-A 219 5806 (tuition allowed for secondary school students).

144 Bagle v Raymond Sch. Dept., 728 A.2d 127 (Me. 1999); Strout v. 41banese, 178 F.3d 57 (1st Cir. 1999).










En banc


French for "by the full court," "in the bench," or "full bench."
When all the members of an appellate court hear an argument,
they are sitting en banc. Refers to court sessions with the entire
membership of a court participating rather than the usual
quorum. U. S. courts of appeals usually sit in panels of three
judges, but may expand to a larger number in certain cases.

A revision of the Lemon test for deciding Establishment Clause
cases proposed by Justice Sandra Day O'Connor in Lynch v.
Donnelly, # asks whether a particular government action
amounts to an endorsement of religion, thus violating the
Establishment Clause. According to the test, a government
action is invalid if it creates a perception in the mind of a
reasonable observer that the government is either endorsing or
disapproving of religion.

Found in the First Amendment of the U. S. Constitution, it
states: "Congress shall make no law respecting the
establishment of religion."' It was made applicable to the states
by incorporation through the Fourteenth Amendment by the
Supreme Court in the case of Everson v. Board of~ducation.

Refers to the courts of the United States (as distinguished from
state, county, or city courts) as authorized by Art. III of the
U.S. Constitution.

Cases involving the interpretation and application of the
Constitution, laws, or treaties of the United States.

Amendment to the U. S. Constitution guaranteeing basic
freedoms of religion, speech, press, and assembly ant the right
to petition the government for redress of grievances.

Found in the First Amendment of the U. S. Constitution, it
states: "Congress shall make no law .. prohibiting the free
exercise of [religion]." It was made applicable to the states by
incorporation through the Fourteenth Amendment by the
Supreme Court in the case Cochran v. Louisiana.7


Endorsement test









Establishment Clause






Federal courts



Federal question jurisdiction


First Amendment



Free Exercise Clause


4 465 U.S. 668 (1984).

SU. S. Const. Amend. I

6 330 U.S. 1 (1947).

S281 U.S. 270 (1930).










services; psychological services; services for exceptional children; remedial and therapeutic

services; speech and hearing services; service for the improvement of the educationally

disadvantaged," "and such other secular, neutral, non-ideological services as are .. provided for

public school children of the Commonwealth."113

The U. S. Supreme Court, as it had done previously in Nyquist, analyzed the Pennsylvania

programs under the Lemon test.114 Implementing the first prong, the Court acknowledged that all

three of the programs had a secular purpose."' Relying on the precedent from Allen,116 the Court

held that the textbook loan program was constitutionally permissible."' The Court noted, "the

textbook provisions .. extend to all schoolchildren the benefits of Pennsylvania's well-

established policy of lending textbooks free of charge to elementary and secondary school

shtdents."""s The Court emphasized that since textbooks are loaned directly to the student with

ownership remaining with the State, it is the parents and children and not the private schools that

benefit.119 The Court also held that no suggestion existed that the loaned textbooks would be

used for anything other than secular purposes. 120 The M~eek decision reinforced the proposition

that secular aid to religious schools may be permitted, but only as long as that aid could not be

diverted to religious purposes.




"3 9-972.1 (b): Mleek, 421 U.S. at 353 n.2.

" Meek, at 358-59.

"5 See id. at 362-63, 368.

116 392 U.S. 236.

n7 See id. at 359-62.

"8 Meek, 421 U.S. at 360.

119 See id. at 361.

12n See id. at 361-62.










CHAPTER 4
ZELMAN V SIMMONS-HARRIS DECISION

Introduction

Public school teachers unions, the general publicly legal scholars,2 and policymakers3 wr

sharply divided over the Establishment Clause issue as it pertained to school vouchers and

whether school vouchers constitute good public policy. The arguments took many forms, but in

general, opponents of vouchers believe such financial assistance to parents of students in

religious schools weakens the wall of separation between church and state and undermines

public schools. School voucher proponents believe that vouchers provide an opportunity,

particularly for low-income families, to escape failing schools and broaden the freedom of

educational choice in a manner that does not violate the Establishment Clause.

The deeply divided Court,4 by a 5-4 maj ority, in Zelman v. Simmons-HarrisS held that the

Cleveland Scholarship and Tutoring Program (CSTP) did not violate the Establishment Clause of

the U. S. Constitution. The Court rej ected the Sixth Circuit' s holding that the voucher program





SSee The 36th Annual PhiDeltaKappa/Gallup Poll of the Public's Attitudes Toward the Public Schools, Support for
school vouchers ranged from 41% to 44%. Available at http://www.pdkintl.org/kappan/kO409pol.ht

2 See i.e., online legal issues debate about school vouchers between Michael McConnell and Kathleen M. Sullivan
that took place Dec. 8, 1998 through Jan. 13, 1999. Available at http://www.slate.com/id/10 146/entry/1 1351/

3 See Sen. Edward M. Kennedy, D-Mass in regards to Washington D.C. voucher program states, "The
administration couldn't pass a voucher provision honestly, so they've attached it to an omnibus appropriations bill to
avoid a vote to eliminate it" in Caroline Hendrie. (January 28, 2004). "Federal plan for vouchers clears Senate."
[Electronic version]. Education Week., p.2. Available at
http://www.edweek.org/ew/ewgprintstory.cfm slug-20Vouch.h23; After the successful passing of the DC School
Choice Incentive Act, DC Mayor Williams stated "I have confidence in the wisdom of parents to make the best
choices for their children's education. It's government's job to provide the options." District of Columbia Mayors
Office. "Mayor Williams Hails Passage of DC School Choice Bill." January 22, 2004. Available at
http://dc.gov/mayor/news/release.asp?id=561&mon=200401

SSee Sara J. Crisafulli. (2003). Zebnan v. Sinunons-Harris: Is the Supreme Court's latest word school voucher
programs really the last word? 71 Fordam Law Review, 2227-2281.

S536 U.S. 639 (2002).










for U. S. Secretary of Education Richard Riley for speech at the National Press Club,
Washington, D.C, September 23, 1997. Washington, DC: U. S. Department of Education,
1997. Available at http://www.ed.gov/Speeches/09- 1997/index.html

Dewar, Helen. Senate Passes Major Revamp of Education," Washington Post, June 15,
2001. Retrieved October 1, 2002 from http ://washingtonpost.com/ac2/wp-dyn/A3404-
2001Junl4?language

District of Columbia Mayors Office. "Mayor Williams Hails Passage of DC School Choice Bill."
January 22, 2004. Available at
http://dc.gov/mayor/news/release.asp?id=561&mon=200401

Dowling-Sendor, Benj amin "A victory for voucher." American School Board Journal,
January 1999.

Education Commission of the States. "Legislative Activities Involving Open Enrollment
(Choice)." Clearinghouse Notes. December 1994.

Education Finance Task Force White Paper, American Institutes of Research Draft Handbook
Update Project. Washington, DC: National Center for Education Statistics, 12/19/00.
Available at http://nces.ed. gov/forum/pdf/finance~voucher. pdf

E gan, Marcus. Keep Public Education Public: Why Vouchers Are a Bad Idea. Alexandria, VA:
National School Boards Association, 2003. Available at
http://www.nsba.org/site/docs/33 800/33736.pdf

Elmore, Richard F. and Milbrey W. McLaughlin. Steady Work: Policy, Practice, and the
Reform ofAnzerican Education. Santa Monica, CA: RAND, 1988.

Engel, Michael. (2000). The Strage~~le for Control of Public Education: Market Ideology
Vs. Democratic Values. Philadelphia: Temple University Press.

Epstein, Lee and Thomas G. Walker. Religion: Exercise andEstablishnzent in Constitutional
Law for a ChangingAnzerica: A .1/# #l t Course, 2nd. Ed. Washington, D.C.: CQ Press,
2000.

Esbeck, Carl H. "A Restatement of the Supreme Court's Law of Religious Freedom:
Coherence, Conflict, or Chaos?" 70 Notre Dame L. Rev. 581 (1995).

Fashola, O. and R. Slavin, (1998). "Schoolwide reform models: What works?" Phi Delta
Kappan, 79(5), 370-379.

Ferguson, R. F. 1991. "Paying for Public Education: New Evidence on How and Why
Money Matters." H~arvard Journal on Legislation. 28 (Summer): 465-98.

Finn, Chester F., Jr. "The Original Education President: Reagan's ABCs." National Review









Chittenden Town School District v. Vermont Department of Education (97-275); 169 Vt. 310;
738 A.2d 539 (1999).


Virginia

Virginia Constitution Article. IX, @ 140 (1902).
Virginia Code j@ 22-251 to 22-275.
Acts, 1959 Ex. Sess., c.53.
Washington

Washington Constitution Article 1, g 11


Washington Revised Code (2002):
~28B.10.814
~28B.119.005
S28B.119.010(1)(b)
~28B.119.010(8)
~28B.92.100 (2004)
Cases


Davey v. Locke, 299 F.3d 748 (9th Cir. 2002), cert. granted, 123 S. Ct. 2075 (2003), rev.
124 S. Ct. 1307 (2004).

Witters v. Comm'n for the Blind, 689 P.2d 53 (Wash. 1984).

Witters v. State Comm'n for the Blind, 771 P.2d 1119 (Wash.) (en banc), cert. denied,
493 U.S. 850 (1989).

Wisconsin

Wisconsin Constitution

Art. I, 18
Art. IV, @18
Art. X, @ 3

Wisconsin Act 27, j@ 4002-4009

Wisconsin Statute
~119.23
~119.23(2)(a)










claim that school vouchers are constitutionally suspect even though the U. S. Supreme Court has

upheld a voucher program in Cleveland.194

School Voucher Politics

Voucher politics can be viewed as "a classic political confrontation, engaging partisan

strategies and implicating political ideologies."195 Ideology and partisanship are the most

strongly related characteristics that define support and opposition for vouchers. Political

ideology forms policy, since policymakers either support or oppose vouchers according to their

different worldviews regarding the purposes and desired outcomes of education. Value conflicts

make it difficult for policymakers to reach consensus concerning goals for education or which

goals should receive priority. A tension exists between the values of concern for the collective

good and the concern for personal liberty. 196 These values or attitudes are directly related to

educational policies.19 While values encompass the political rhetoric, school voucher

implementation rests heavily on how interest groups calculate their own benefits or losses.

School vouchers have been a recurring and politically emotional issue at both the federall98

and statel99 ICVOIS for decades. The debate raises questions about how to interpret the federal and



194 See Anti-Defamation League. "School Vouchers: The Wrong Choice for Public Education." Available at
http://adl.org/vouchers/vouchers_constitsupcap (last visited Jan. 27, 2007).

195 Sheila Suess Kennedy. "Privatizing Education: The Politics of Vouchers." Phi Delta Kappan, 82,6. (Feb 2001):
450-456. Available at http://www.pdkintl.org/kappan/kken0 102.htm (last visited Feb. 2, 2007).

196 See John Witte. The Market approach to Education: 4n analysis of 4merica 's First Voucher Program.
Princeton, NJ: Princeton University Press, 2000, 11.

197 JOel Spring. 4merican Education 9th edition. New York: McGraw-Hill, 2000, 22.

198 D.C. School Choice Incentive Act of 2003 (Title III of Division C of the Consolidated Appropriations Act,
2004); (Pub. L. 108-199, Stat. 3) to Fiscal Year 2004 Omnibus Appropriations Bill (H.R. 2673); The District of
Columbia fiscal 2004 Appropriations Bill (HR 2765). Available at
http://www. ed. gov/programs/dcchoice/legislation. html
199 A publicly funded voucher program has yet to be approved through a state's initiatives. See California
Proposition 38 (2000), 71% of voters voted no to the school voucher initiative: Michigan Proposal 00-1 School
Choice (2000), 70% of voters voted no to school voucher initiative: Washington (1996) 64% of voters voted no to









and local funds. Mann contended that society's responsibility to transmit commonly held values

to the next generation could be accomplished by providing a common educational experience

that would shape children into respectable citizens. Common school supporters asserted that the

virtues of good citizenship rested on a shared moral and religious foundation that was fulfilled by

reading the King James Version of the Bible without commentary in public schools.22

Catholics and some Protestant denominations, Lutherans for example, argued that the

reading of the King James Bible in public school was unacceptable.23 At the time, the political

maj ority favored the reading of the King James Bible in public schools. This left those families

opposed to that practice to choose to remain or attend private parochial schools. When public

funding was sought, Mann and others proposed that public funds be restricted to schools run and

administered by the state, where a nonsectarian form of religion would be taught. During this

period, the struggle for public funds for religious schools began and continues to this day.

Mann was a supporter of strong governmental control of education: what was taught in

public school, how it was taught, and what resources could be used to teach, and who was

allowed to teach. During this period of rapid urbanization and bureaucratization, public school

systems became larger and more structured. Public schools were reflective of America' s

industrial nature by being structured top-down in industrial-era-management style. Two

administrative roles that emerged were the superintendent and principal. In the late nineteenth

century, as urban schools grew larger, principals became increasingly more full-time

administrators. Professional superintendents were hired to oversee the whole system of public

education.



22Steven K. Green, The Blaine amendment Reconsidered, 36 Am. J. Legal Hist. 38, 45 (1992).

23Lloyd P. Jorgenson. "The Birth of a Tradition," Phi Delta Kappan, June 1963,411.










The Ohio Pilot Project Scholarship Program

In 1802, Ohio was the first state Congress created from the Northwest Territory. Following

the terms of the Northwest Ordinance, Ohio made land grants available to every township for the

use of schools. The first Ohio Constitution required the legislature to "... to pass suitable laws to

protect every religious denomination ...and to encourage schools and means of instruction.""

During the constitutional convention of 1850-1851, the delegates modified the provision to a

"thorough and efficient system of common schools throughout the state," which remains in the

constitution to this day. 1

In 1992, then-Governor and former Cleveland Mayor George Voinovich established the

Governor' s Commission on Educational Choice to investigate the implementation of a voucher

system." In March 1995, the educational and fiscal crisis in the Cleveland Municipal School

District was so severe that the U. S. District Court for the Northern District of Ohio ordered the

state to take over the administration of the district.'" The decision resulted in the Cleveland

Municipal School District being placed under the direct supervision of the state department of

education.19 The Ohio Department of Education gave the Cleveland Municipal School District

"academic emergency" status.20 A pilot proj ect was established for any school district in the



15 Ohio Const. art. I, 7.

'6 Ohio Const. art. VI, 2. The General Assembly shall make such provisions, by taxation, or otherwise, as with the
income arising from the school trust fund, will secure a thorough and efficient system of common schools
throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any
part of the school funds of this state. http://wwly.1 egislature.state.oh.us/constitto~fat6Scin0
17 Michael Charney. "High Court Takes up Vouchers." R~. thri,, s;-,, Schooly Online. Winter Volume 16, No.2-
2001/2002, at httpl w\ int\.rethinkingschools.org/special~reports/vouce eotvhgl2shtml.

1s Zelman v. Sinanons-Harris, 536 U.S. at 644-48.

19 Sininons-Harris v.Zehnan, 72 F. Supp. 2d 834,836.

"0 A rating of "academic emergency" applies to districts that meet eight or fewer of Ohio's twenty-seven
performance standards. CCSD did not meet any of the standards during the 1998-1999 school year [score: 0/27],
thus earning last place among all Ohio's school districts. See b'lip nu \\ \ ode.state.oh. us/reportcard/Ratingby










described all pertinent judicial decisions the Court found applicable in Zelman. Next, a review of

litigation was presented pertaining to the Cleveland Voucher Program. Finally, this study

reviewed recent state school voucher legislation involving the constitutionality of state

restrictions of voucher programs, and decisions on voucher and youcher-related programs that

were handed down since the Zelman v. Simmons-Harris decision.

Significance of the Study

Legislative actions at the federal and state levels have proposed a variety of voucher plans

that have resulted in legal challenges. The legal battles center on the constitutionality of the use

of public funds to support religious schools. The Zelman v. Simmons-Harris case provides

educational policymakers with a current understanding of the federal dividing line between

permissible and impermissible public aid to religious schools. This analysis enables educational

leaders to interpret, anticipate, and effectively plan for changes in urban public schools resulting

from school vouchers that permit public aid to religious schools.

Method of the Study

In order to determine the constitutional principals the U. S. Supreme Court applied in

Zelman v. Simmons-Harris, traditional legal research methods were utilized to examine and

analyze the permissible use of publicly funded vouchers to support religious schools. Legal

research can be characterized as a "systematic inquiry into the law that can be described as a

form of historical-legal research that is neither qualitative nor quantitative."ls

Legal research involves a systematic investigation of legislation and court cases in order to

interpret those laws and cases and arrive at understanding.186 This study relies heavily upon legal


1ss Charles J. Russo. "Legal Research: The 'Traditional' Method." In David Schinunel, ed., Research That Makes a
Difference: Complimentary M~ethods For Examining Legal Issues in Education. Topeka, KS: National Organization
on Legal Problems of Education, 1996, 33.
186 Id. at 33-34.










Justice Thomas proposed that the Court apply a dual standard to Establishment Clause

challenges: a restrictive one applicable to the federal government and a more relaxed one

applicable to the states. He added, "Just as blacks supported public education during

Reconstruction, many blacks and other minorities now support school choice programs because

they provide the greatest educational opportunities for their children in struggling

commumities."m5

Dissenting Opinions

The four dissenting justices asserted that the Zelman decision was a fundamental break

with prior church-state precedent and "a maj or devaluation of the Establishment Clause." They

argued that the program is a very large transfer of state funds to religious organizations, where

the funds can be used for religious purposes.

Justice Souter's dissent

Justice David Souter wrote the principal dissent, joined by Justices Stevens, Ginsburg, and

Breyer. For Justice Souter, the Ohio voucher program violates "every obj ective underlying the

prohibition of religious establishment," and its constitutionality will have a negative impact on

religious liberty. m5 He objected to the use of any public funds to support educational programs

run by religious schools. The Cleveland voucher program allows public funding to be directed to

religious schools and indoctrination.

In his view, the Court was wrong when it focused on all of the funds the state of Ohio

makes available for public education as the backdrop for a decision on whether the program is

"neutral" with respect to religion. The Court should not have considered the various types of

public education to be an option because these schools are part of the public school system and

157 Id

lss Id










and2anageenten, 17, 3 (1998): 373-392.


."The Theory of Choice Applied to Education." In W. Clune & J. Witte (Eds.), Choice
and control in American education, Vol. III: The practice of choice, decentralization, and
school restructuring, pp. 285-318. New York: Falmer Press, 1990.

Levin, Henry M. and Cyrus E. Driver. Estimating the costs of an educational voucher system. In
William J. Fowler, Jr. (Ed.), Selected Papers in School Finance 1994, pp. 63-88.
Washington, DC: U. S. Department of Education, National Center for Educational
Statistics, 1996.

."The Costs of an Educational Voucher System." Educational Econontics 5,3 (December
1997): 265-83.

Levy, Leonard W. The Establishment Clause: Religion and the First Anzendnzent. 2nd ed. Chapel
Hill, N.C.: University of North Carolina Press, 1994.

Lewin, Nathan. "How School Vouchers Can Win In the Supreme Court-Distinguishing
'What' From 'How' in Aid to Religious Schools." Jewish Law Articles. Available at
http://www.jlaw. com/Articles/SchoolVouchers .html

Lieberman, Myron. Privatization and Educational Choice. New York: St. Martins Press,
1989.

Lieberman, Myron. Public Education: An Autopsy. Cambridge, MA: Harvard University Press,
1993.

Lowe, Bob "The Hollow Promise of School Vouchers." hI Education, hIc. Turning Learning
into Business. Alfle Kohn and Patrick Shannon, eds. Portsmouth, NH: Heinemann, 2002.
Available at
http ://www. rethi nki ngs school s .org/sp eci al~rep orts/voucher~rep ort/v_s osholw. shtml

Lupa, Ira C. and Robert W. Tuttle, Government Partnerships with Faith-Based Service
Providers: State of the Law/ 77-129 (Dec. 11, 2002).

Lutzy, Jennifer. "School Vouchers: Necessary Choice or Downfall of Public Education Ideals."
Conanunity Youth Development Journal. Volume 2, No. 3, Summer 2001. Available at
http://www.cydj ournal.org/2001 Summer/lutzy_06 13.html (last visited Jan. 27, 2007).

Lyons, Thomas W. "Parochiaid? Yes! Educational Leadership, November 1971, 102-104.

Malbin, Michael J. Religion and Politics: The hItentions of the Authors of the First
Anzendnzent. Washington, D.C.: American Enterprise Institute, 1978.

Mauro, Tony. "Voucher Advocates Plan Next Push to High Court." (08-05-02) Available at










Second, the primary effect of the statute cannot advance or inhibit religion.8 Finally, the law

cannot result in the state becoming excessively entangled with religion.82 The Court found that

both the Pennsylvania and Rhode Island statutes passed the first prong of the Lemon test, which

required a secular purpose of promoting education.83 The second prong, which deals with

primary effect, was not addressed because the Court found the laws involved a severe

entanglement between church and state.84 The U. S. Supreme Court maj ority declared that both

programs violated the third "prong" of the test because "comprehensive, discriminating, and

continuing state surveillance [would] inevitably be required to ensure" that the subsidized

teachers did not "inculcate religion.""

Even though both the Rhode Island and Pennsylvania programs provided parents a choice

in determining whether to send their children to private or public school, the Court found that

parental free choice did not outweigh the direct aid religious schools received.86 The Court

distinguished the direct aid programs in Lemon from the indirect aid programs upheld in

Everson87 and Allen,ss and found that in these cases "state aid was provided to the student and his

his parents--not to the church-related school."89 The Court viewed direct subsidization of





st See id. at 612.

82 See id. at 613.

83 See id. at 613.

84 See id. at 613-14.

85See id. at 619.

86 See id.at 621.

87330 U.S. 1 (1947).

88392 U.S. 236 (1968).

89 Lemon, 403 U.S. at 621.










Since the release of the "Coleman Report" in 1966, educational scholars have argued the

significance of money in determining the quality of education provided to students.122 The

Coleman Report, which was prepared to meet a mandate of the 1964 Civil Rights Act, set the

debate about productivity in motion. The original goal was to determine differences in the

quality of education available to different groups in the population, particularly minority groups.

The researchers extended the study and attempted to show how differences in student

performance on standardized tests were connected to differences in socioeconomic background

characteristics and school resources. 123

This report produced two controversial conclusions. First, the gap in educational resources

available to black and white students was less than expected. Second, the report found the effects

of school resource allocation on student achievement to be minor. The authors concluded that the

measurable characteristics of teachers and schools were negligible in determining student

outcomes. Socioeconomic background variables and the composition of the student body played

a more important role in determining student success. Students of well educated and higher

socio-economic parents tended to outperformed students raised in families having lower

socioeconomic status and less education.

In 1986, after surveying the literature, Eric Hanushek agreed with Coleman, concluding,

"There appears to be no strong or systematic relationship between school expenditures and








122 James S. Coleman, E.Q. Campbell, C.J. Hobson, J. McPartland, A.M. Mead, F.D. Weinfeld, and R.L. York.
Equality of Educational Opportunity. Washington, DC: U. S. Department of Health, Education, and Welfare, 1996.
123 Gary Burtless., ed. Does Money Matter? The Effect of School Resources on Student Achievement and Adult
Success. Washington, DC: Brookings Institution Press, 1996, 6-7.










yearly progress toward meeting the goals of NCLB. With this law, federal educational policy

was no longer limited to small categorical programs for underserved children but addressed

general curriculum. Most controversial in this proposed plan was the voucher program. Due to

congressional opposition, the voucher provision for private schooling was defeated and removed

from the bill.149

Liberty and Parental Rights

An existing fundamental controversy within educational policy has been whether the

interests of the state take precedence over parental interests. James Coleman underscored this

point in a book preface. He stated, "The history of education since the industrial revolution

shows a continual struggle between two forces: the desire by members of society to have

educational opportunity for all children, and the desire of each family to provide the best

education it can afford for its own children."Iso In a historic essay David Tyack describes the

str-uggle between parents and the state:

Over the long perspective of the last century, ...compulsory school attendance may be seen
as part of significant shifts in the functions of families and the status of children and
youth...Advocates of compulsory schooling often argued that families-or at least some
families, like those of the poor and foreign-born were failing to carry out their traditional
functions of moral and vocational training...Much of the drive for compulsory schooling
reflected an animus against parents considered incompetent to train their children. Often
combining fear of social unrest with humanitarian zeal, reformers used the powers of the
state to intervene in families and to create alternative institutions of socialization.l5



149See Lizette Alvarez. "House Democrats Block Voucher Provision," New York Times, May 3, 2001. Available at
http://www.nytimes.com/200 1/05/03/politics/03EDUC.html; H. Dewar.. "Senate Passes Major Revamp of
Education." Washington Post, June 15, 2001. Available at http://washingtonpost.com/ac2/wp-dyn/A3404
2001Junl4?language: Lizette Alvarez. "Senate Approves Legislation to Penalize Failing Schools." New York Times,
June 15, 2001. Available at http://www.nytimes.com/200 1/06/15/politics/15EDUC.html

150 James Coleman, In forward to George D. Strayer and Robert M. Haig. The Fe to ?.. e s of Education in the State of
New York. New York: The Macmillan Co., 1923, vii. Coleman's quote was cited in Rodriguez v. San 4ntonio
Independent School District, 411 U.S. 1, 49 (1973).

'51 David Tyack. WasI i of Seeing: An Essay on the History of Compulsory Schooling." 46 Hary. Educ. Rev. 355,
363 (1976).










Constitution concerning public aid to religious schools.16 The reasoning of the Court has

fluctuated from case to case and decision-to-decision reflecting the philosophies and dispositions

of shifting maj orities.l

Public education Establishment Clause issues have to do with the extent to which the state

may aid religious schools and the extent to which religion may be advanced by public schools.

An overview of the most significant court cases dealing with the degree to which public funds

can be used to support the education of private school students, in particular religious schools,

over the last fifty plus years follows. It is crucial to note that many of these rulings are very fact

specific and should be analyzed and applied cautiously to other fact situations.

The Court has attempted to define the conditions under which public aid to religious

schools is permissible under the Establishment Clause of the First Amendment.'" "Congress shall

shall make no law respecting an establishment of religion,"19 COmmonly referred to as the

Establishment Clause, was the legal basis in Zelnzan v. Sinanons-Harris.20 The Establishment

Clause separates government and religion to maintain religious freedom while sharing a

commitment to liberty and equality. This study focused on the U. S. Supreme Court's almost





16See Zehnan v. Siminons-Harris, 536 U.S. 639 (2002): M~itchell v. Hebus, 530 U. S. 793 (2000) .i~ ;..oe t v. Felton,
521 U.S. 203 (1997); Wohnan v. Walter, 433 U.S. 229 (1977); M~eek v. Pittenger, 421 U.S. 349 (1975); Conun. For
Pub. Educ. &~ Religious Libert v. Ny. quist, 413 U.S. 756 (1973); Lemon v. Kurtzinan, 403 U.S. (1971); Bd. OfEduc.
v. 4llen, 392 U.S. 236 (1968); Everson, 330 U.S. 1.

17 Jesse H. Choper, The Evtablishinent Clause and did to Parochial Schools n Update, 75 Cal. L. Rev. 5, 6
(1987); Michael W. McConnell & Richard A. Posner, 4n Economic approach TolIssues ofReligious Freedom, 56
U. Chi. L. Rev. 1, 25-26 (1989).

Is See Lemon v. Kurtznzan, 403 U.S. 602 (1971); Conanittee for Public Education and Religious
Liberty v. Nyquist, 413 U.S. 756 (1973); M~ueller v. Allen, 463 U.S. 388 (1983); Agostini v.
Felton, 521 U. S. 203 (1997); and M~itchellyv. Helms, 530 U. S. 793 (2000).
19 U.S. Const. Amend. I # 1.

"0 Zehnan v. Sinanons-Harris, 536 U.S. 639 (2002).










the academic improvement of schools."" Chubb and Moe proposed eliminating centralized

bureaucracies and giving authority directly to schools, parents, and students.

The degree to which the institutional environment is a barrier to educational productivity

depends on the extent to which bureaucracy and direct democratic control affect school

administration. Chubb and Moe argue that environments that are relatively homogeneous and

problem-free are likely to be the least bureaucratic, while urban areas are more likely than

suburbs or rural areas to suffer from the negative consequences of bureaucratic controls and

political pluralism.119 According to Chubb and Moe, these are the places where productivity

problems are the worst and where the need for exceptionally effective schools is the greatest.120

Productivity, the ratio of inputs to outputs, is one way to measure the quality of public

schools. Specifically, educational productivity is measured by dividing a measure of student

achievement by per-pupil spending in inflation-adjusted dollars. Many researchers have

documented that school spending has increased but student achievement as measured on the

Student Aptitude Test (SAT) has not. 121








its James S. Coleman, Thomas Hoffer, and Sally Kilgore. High School 4chieveinent. New York: Basic Books, 1982.

119 JOhn E. Chubb and Terry M. Moe. Politics, Markets, and 4merica 's Schools. Washington, DC: Brookings
Institution Press, 1990, 64.

12o Helen F. Ladd and Janet S. Hansen. Making Money Matter: Financing 4merica 's Schools. Washington, D.C.:
National Acadenw Press, 1999, 160.

121 See Eric A. Hanushek, "The Productivity Collapse in Schools," W. Allen Wallis Institute of Political Economy
Working Paper #8. Rochester, N.Y.: University of Rochester, 1996. Available at
http://nces.ed.gov/pubs97/97535/97535k.asp Richard Rothstein and K.H. Miles. Where 's the Money Gone?
C I,,;,.. in the Level and Composition of Education Spending. Washington, DC: Economic Policy Institute, 1995 &
Caroline M. Hoxby, "School Choice and School Productivity, or Could School Choice Be a Tide That Lifts All
Boats?" in Caroline Hoxby, ed., Economics of School Choice. Chicago: University of Chicago Press for the National
Bureau of Economic Research, 2001.










category of "neutral government programs that provide aid directly to a broad class of

individuals."113 According to the Court, any aid from the Cleveland program to religious schools

was a consequence of the "genuine and independent choices of private individuals."114 The

Court analogized the Ohio program to the "true private choice" programs"'5 found permissible in

Mueller,Hl6 Witters,ll and Zobrest.nls

Employing the M~ueller precedent, the Zelman Court found the presence of private choice

and the neutral availability of benefits to all parents of children in the Cleveland School District

to be an important element in favor of the program's constitutionality. 119 The Court, in Witters

and Zobrest, employed the same private choice rationale of the M~ueller decision.

Chief Justice Rehnquist wrote "...the question presented is whether the Ohio program ..

has the forbidden 'effect' of advancing or inhibiting religion." 120 Stating that "our jurisprudence

with respect to tr-ue private choice programs has remained consistent and unbroken,"121 the Court

held "...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



1 13 Id.

1 14 Id.

115 Id.
116 Mueller v. Allen, 463 U. S. 388 (1983) (The Court upheld the constitutionality of a Minnesota program allowing
tax deductions for educational expenses to all parents, whether their children attend public school or private).

117 Witters v. Wash. Dept. ofSerus. For the Blind, 474 U. S. 481 (1986) (upholding a vocational rehabilitation
program that paid the tuition for a student who was blind at a religious school because he freely chose to attend a
religious school).
Its Zobrest v. Catalina Foothills Sch. Dist., 509 U. S. 1 (1993) ( holding that the presence of a sign language
interpreter in a religious school did not violate the Establishment Clause).

119 Zelman at 650.

120 Id. at 649.
1 21 Id.










Historically, the U. S. Supreme Court has recognized the "...traditional concepts of

parental control over the religious upbringing and education of children under their control."16 In

M~eyer v. Nebra~ska, the U. S. Supreme Court addressed the constitutional right and duty of

parents to provide their children with an education "...suitable to their station in life."" In Pierce

v. Society ofSisters, the U. S. Supreme Court unanimously held that the Compulsory Education

Actls requiring all children to attend public schools was unconstitutional.19 The Court

acknowledged the "liberty of parents and guardians to direct the upbringing and education of

children under their control."20

In Zelman v. Simmons-Harris, the U. S. Supreme Court "strongly emphasized parental

freedom of choice."21 The Court held that public funds in the form of a scholarship (voucher)

could be used at religious schools as long as parents and not the state made the decision. Chief

Justice Rehnquist, wrote in the opinion: "We believe that the program challenged here is a

program of true private choice, consistent with M~ueller, Witters, and Zobrest, and thus

constitutional."22

U. S. Supreme Court Establishment Clause Standards in Zelman

Prior to Zelman, the U. S. Supreme Court' s Establishment Clause jurisprudence has

resulted in "often confusing, even contradictory decisions concerning public aid to religious


16 FE/SCOnsin v. Toder, 406 U.S. 205, 231 (1972).

17 262 U.S. 390, 400 (1923).

's Ore. Gen. Laws, ch. 1, p.9 (1923).

19 268 U.S. 510, 534-35 (1925).

20 Pierce, 268 U.S. at 535.

21 See Clive Belfield and Henry Levin. "Does the Supreme Court Ruling on Vouchers in Cleveland Really Matter
for Education Reform?" TCRecord, 2002. Available at http://www.tcrecord.org/PrintContent.aspotnl=02

22Zelman at 653.










from Here?" New York: Teachers College, National Center for the Study of Privatization
in Education, 2002. Available at
http://www.ncspe. org/publi cati ons~fil es/5 38_OC CP 51 .pdf

Kennedy, Sheila Suess. "Privatizing Education: The Politics of Vouchers." Phi Delta Kappan,
82,6. (Feb 2001): 450-45 6. Available at http://www.pdkintl .org/kappan/kkenO 102.htm

Kirkpatrick, David W. Choice in Schooling: A Case for Tuition Vouchers. Baltimore, MD:
Loyola University Press, 1990.

Kozol, Jonathan. Savage Inequalities: Children in Anzerica 's Schools. New York: Crown
Publishers, 1991.

Kozol, Jonathan. "I dislike the idea of choice, and I want to tell you why." Educational
Leadership, 50 (3), 90-92.

Krauthammer, Charles. "Race and Classrooms," The Washington Post, May 23, 1997, p.
A29.

Krueger, Carl and Todd Ziebarth, "No Child Left Behind Policy Brief: School Choice."
Denver, CO: Education Commission of the States, April 2002. Available at
http://www.ecs. org/clearinghouse/3 5/21/3 521 .pdf

Kunz, C. L., D. Schmedemann, M. Downs, and A. Bateson, The Process ofLegal
Research: Successfud Strategies 4th ed. Aspen Publishers, 1996.

Ladd, Helen F. and Janet S. Hansen, eds. Making Money Matter: Financing
America 's Schools. Washington, D.C.: National Academy Press, 1999.

La Noue, George R. Educational Vouchers: Concepts and Controversies, New York, NY:
Teachers College Press, 1972.

Labaree, David F. (2000). "Resisting educational standards." Phi Delta Kappan, 82 (1),
28-33.

Lazarus, Edward. (2006). "Assessing the Supreme Court at the Close of Its Current Term:
New Justices, Public Critiques, and the Law Clerk Issue. FindLaw/ Writ Thursday, July 6,
2006. Available at http://writ.news. findlaw. com/lazarus/20060706 .html

Levin, Henry M. "Educational Choice and the Pains of Democracy." In Thomas James and
Henry Levin, eds. Public Dollars forll~~~11~~~111~~ Private Schools: The Case of Tuition Tax Credits.
Philadelphia, PA: Temple University, 1983.

"Education as a public and private good". Journal of Policy Analysis and Management, 6,
628-641, 1987.

"Educational Vouchers: Effectiveness, Choice, and Costs." Journal of Policy Analysis










criteria present in earlier indirect aid cases.64 First, as a threshold requirement, the program must

be "neutral in all respects toward religion."65 The Court was concerned with formal neutrality

meaning that the classes of both participating schools and eligible students must be defined in

nonreligious terms. In Zelman, this criterion was satisfied because the Cleveland program was

open to any private school in the district or any public school in the adj acent districts, and the

only preferred students were those who came from lower income families.66

Second, the majority determined whether the program provided aid "directly to a broad

class of individuals, defined without reference to religion."67 This criterion was originated in

Mueller68 to ensure formal neutrality does not, in fact, represent an unfair manipulation in favor

of a particular religious group. The Cleveland program met this criterion since it was open to all

parents "of a school-age child who resides in the Cleveland City School District."69

The third criterion dealt with whether or not program recipients could direct the aid to

schools of their own choosing. The Court determined that the Cleveland program made available

to families and students a "...range of educational choices: They may remain in public school as

before, remain in public school with publicly funded tutoring aid, obtain a scholarship and

choose a religious school, obtain a scholarship and choose a private nonreligious school, enroll in

a community school, or enroll in a magnet school."'0


64M~ueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Dept. ofServs. for Blind, 474 U.S. 481 (1986);
Zobrest v. Catalina Foothills School District, 509 U. S. 1 (1993).

65 Zelman at 653.

66 Id. at 653.

67 Id

68 463 U.S. 388, 397 (1983).
69 Zelman at 653.

7o Id. at 655.










schools" formed from six of the district' s twenty-four public schools. The proj ect began in 1972

and was discontinued when federal funding ceased.97 During the program, "no appreciable

differences" in reading achievement between students in regular and choice schools was

observed.98 It was noted that most parents preferred neighborhood schools to alternative

schools.99

Voucher opponents used the Alum Rock data to discredit vouchers. Voucher advocates

protested, claiming that since no private schools participated, a free market place did not exist.

They claimed that this experiment was actually more founded on school decentralization than

free market opportunity. The Alum Rock experiment amounted to a voucher system of mini-

schools within the existing public system, each with a nominally diverse curriculum.100 This

early voucher plan was the first to include public school choice as a method to address issues of

economic and ethnic inequality. 101

Educational Trends in the 1980s

A conservative cultural and ideological shift occurred in America with the election of

Ronald Reagan in 1980. During President Reagan' s two terms, "education goals changed from






97 See Daniel Weiler. A Public School Voucher Demonstration: The First Year atAlum Rock, Summary and
Conclusions. Santa Monica, CA: Rand, 1974; Amy Stuart Wells. Time to Choose: America at the Crossroads of
School Choice Policy. New York: Hill and Wang, 1993, 152.

98 F. J. Capell and L. Dosher. 1981. A Study ofAlternatives in American Education: Vol. VI, Student Outcomes at
Alum Rock 1974-1976. Santa Monica, CA: Rand.

99 Carol Ascher, Norm Fruchter, and Robert Berne. Hard Lessons: Public Schools and Privatization. New York:
Twentieth Century Fund, 1996.

100 See Pierce Barker, Tora K. Bikson, Jackie Kimbrough, and Carol Frost. A Study in Alternatives in American
Education, Vol. V Diversity in the Classroom. Santa Monica, CA: Rand Corporation, 1981.

'01 Peter Cookson, Jr. and Kristina Berger. Expect Miracles: Charter Schools and the Politics of Hope and Despair.
Boulder: Westview Press, 2002, 27.










Felton,281 Rosenberger v. Rector and Visitors of Univ. of I .282 Cases that involved programs of

true private choice included M~ueller v. Allen, 283 Witters v. Wa~shington Dept. of Servs. for

Blind, 284 and Zobrest v. Catalina Foothills School District. 285 Chief Justice Rehnquist remarked

that the Court' s "jurisprudence with respect to the constitutionality of direct aid programs has

'changed significantly' 286 over the past two decades,"287 but the Court' s "jurisprudence with

respect to true private choice programs has remained consistent and unbroken."288 He added that,

"Three times we have confronted Establishment Clause challenges to neutral government

programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to

religious schools or institutions of their own choosing. Three times we have rej ected such

challenges."289
















281 521 U.S. 203, 225-227 (1997).

2 515 U.S. 819, 842 (1995).

2 463 U.S. 388 (1983).

2 474 U.S. 481 (1986).

2 509 U. S. 1 (1993).

;..oe j t oI, supra at 236.

2 Zehnan, supra at 2470.

2 Id.

289 Id.










the other six arguments as moot.134 In December 2003, the Denver District Court enj oined the

implementation of the program.

On June 28, 2004, the Colorado State Supreme Court upheld a lower court' s decision that

the state' s newly enacted program violates the local control provisions of Article IX, section 15

of the Colorado Constitution.135 The court concluded the voucher program to be unconstitutional

since the program required districts to pay local tax revenues to parents participating in the

program.136 The court did note that the state could implement an education program without

local control but the state must pay for such programs entirely from the state controlled Public

School Fund.137 The court stated, "If the General Assembly wants to change this fundamental

str-ucture, it must either seek to amend the constitution or enact legislation that satisfies the

mandates of the Colorado Constitution."138 The court outlined how to implement a revised

program to meet the local control constitutional issue. However, it is likely that if the state

should attempt to reenact a voucher program the other constitutional issues raised at trial court

would be re-raised also.

Florida

In August 2002, after the Zelman decision, a Leon County Circuit Court judge ruled

Florida' s Opportunity Scholarship Program (OSP) unconstitutional, citing Florida's

constitutional prohibition against direct or indirect public funding of a religious institution,





134 Id. at 15.

135 Owens v. Colorado Congress ofParents, Teachers, and Students, 92 P.3d 933, 3 (Colo. 2004).

136 Id., citing Colo. Rev. Stat. ##22-56-108(3) and (4)(a) (2003).

137 Id., citing Craig v. People ex rel. Hazzard, 89 Colo. 139, 148, 299 P. 1064, 1067 (1931).

138 Owens, at 6.









A RAND Research Study. Cambridge, MA: MIT Press, 1993.


Wood, R.C. "Choice as a Public Policy for American Education," Education Times, Fall,
1996, 3-8.

Woolley, John T. and Gerhard Peters. The American Presidency Project. Santa Barbara, CA:
University of California, 1992. Available at
http://www.presidency.ucsb.edu/ws/index.ph i=1259.

Yergin, Daniel and Joseph Stanislaw, The ConanandingHeights: The Battle Between
Government and the Marketplace that is Remaking the M~odern World. New York: Simon
and Schuster, 1998.

Yudof, Mark G., Betsy Levin, and David L. Kirp. Educational Policy and the Law, 4th ed.
Belmont, CA: Wadsworth Group, 2002.

Zirkel, Perry A. A Digest of Supreme Court Decisions Affecting Education (3rd ed.).
Bloomington, IN: Phi Delta Kappa, 1995.









In Zelman, the U. S. Supreme Court reasoned that any government funds going to religious

schools were a result of an individual's choice of school, not the government. The Establishment

Clause was not violated because families, not government, decided where to spend the vouchers.

Supreme Court Responses to Respondent's Argument

The Court responded to several questions raised by those challenging the statute. The

initial question to be answered was whether the money provided through the program to

participating sectarian private schools was "properly attributable to the State,"140 as a form of "an

impermissible 'direct [State] subsidy'" to the schools, or was "a permissible [parental] transfer" to

the schools. The latter was "similar to [a] hypothetical salary donation" by a government

employee from a government paycheck to a religious institution.

The Court found precedent for the Zelman decision in a series of cases that allowed

government to provide services and benefits to parents and students in private and religious

schools. The Court' s decision can be viewed as the culmination of the gradual Supreme Court

shift from requiring strict separation between government and religion, to allowing interchange

between government and religious organizations.

In reaching the Zelman decision, the maj ority relied on three previous Establishment

Clause cases involving private individuals choosing to use public money to indirectly support

private religious schools. In M~ueller v. Allen,141 the Court ruled that Minnesota's tax deduction

for parents paying for private and parochial school tuition was not a violation of the

Establishment Clause. In Witters v. Wa~shington Department of Services for the Blind, 142 the

Court upheld a vocational scholarship program that provided tuition aid to a student attending a

'40 FWitters y Washington Department ofServices for the Blind, 474 U.S. 481, 489 (1986).
141 463 U.S. 388, 1983

142 474 U.S. 481, 1986









CO: Westview Press, 1996.


S"Educational Issues Series: School Choice," Milwaukee, WI: Wisconsin Education
Association Council, 1996. Available at
http://www.weac. org/resource/nov96/vouchers.htm.

S"Educational Vouchers: A Review of the Research." Milwaukee, WI: Center for
Education Research, Analysis, and Innovation. -99-21, October 1999. Available at
http://www. asu. edu/e duc/ep sl/EPRU/docum ents/EdVouchers/educati onalvouchers .html #
hi storical

Monk, David H. Educational Finance: An Economic Approach. New York:
McGraw-Hill Publishing Company, 1990.

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Finance Reform." Educational Evaluation and Policy Analysis 14(4): 307-32, 1992.

Murray, Charles. Losing Ground: American Social Policy, 1950-1980. New York: Basic
Books, 1984.

Nathan, Joe, ed. Public Schools by Choice. St. Paul, MN: The Institute for Learning and
Teaching, 1988.

.Charter Schools: Creating Hope and Opportunity for American Education. San
Francisco, CA: Jossey-Bass Publishers, 1996.

National Center for Education Statistics. Findings from the Condition of Education 2002:
Private Schools A BriefPortrait. Washington, D.C.: U. S. Department of Education.
Avail able at http://nces.ed. gov/pub s2002/20020 13.pdf.

National Commission on Excellence in Education. A Nation at Risk: The Imperative for
Educational Reform. Washington, D.C.: U. S. Government Printing Office, 1983.
Avail able at http://www. ed.gov/pub s/NatAtRi sk/ri sk.html

Odden, Allan R., and Lawrence O. Picus. School Finance: A Policy Perspective. 2nd ed.
Boston: McGraw-Hill, 2000.

Orfield, Gary. The G; 1,n thr ofSegregation in American Schools: Changing Patterns of
Separation and Poverty since 1968. Alexandria, Va.: National School Boards
Association, 1993.

.Schools M~ore Separate: Consequences ofa Decade ofResegregation. Cambrid ge, MA:
The Civil Rights Project, Harvard University. July 2001. Available at
http://www. civilrightsproj ect.harvard. edu/research/deseg/SchoolsMore_Separate.pdf

Ornstein, Allan C. and Daniel U. Levine. Foundations of Education (4th ed.) Boston, MA:










State that had been the subject of a federal court order "requiring supervision and operational

management of the district by the state superintendent."21 The Cleveland Municipal School

District was the only district meeting those criteria.

On June 30, 1995, the Ohio General Assembly enacted the Pilot Project Scholarship

Program,22 making Ohio the first state to pass a publicly funded private school choice program

that included religious schools.23 The statewide program provided financial assistance to families

in any Ohio school district that was or had been "under federal court order requiring supervision

and operational management of the district by the state superintendent."24 The Cleveland City

School District was the only district that met the program requirement. The Cleveland

Scholarship and Tutoring Program (CSTP) was designed to provide low-income students in the

critically low-performing Cleveland City School District with a wider range of educational

options.25 The program was largely supported by funds from Ohio's Disadvantaged Pupil

Impact Aid (DPIA) budget previously earmarked for the Cleveland Municipal Public Schools.

The district initially kept up to 55 percent of state aid for each departing voucher student, as well

as its entire local and federal financial allotment.26





CD.pdf. In 1999-200 CCSD met three standards, and remains an "academic emergency." See
http://www. ode. state. oh.us/reportcard/ratings/fy00_std~seq. htm.
21 Ohio Rev. Code. Ann. 3313.975(A).

22Ohio Rev. Code Ann. 3313.974-.979.

23Milwaukee Parental Choice Program was the country's first voucher program but it did not originally include
religious schools.
24Ohio Rev. Code Ann. 3313.975(A).
25Zelman at 643-644.

26 Fredrick M. Hess and Patrick J. McGuinn, "Muffled by the Din: The Competitive Noneffects of the Cleveland
Voucher Program." Available at http://www.tcrecord.org/Content.asp?ContenlD10896










the U. S. Supreme Court ruling in M~ueller v. Allen54 and subsequent cases. The judge further

ruled that the voucher program met the uniformity requirement (Article II, Section 26)5 and the

thorough and efficient requirement (Article VI, Section 2).56

Plaintiffs argued that the Cleveland program was unconstitutional based on the U. S.

Supreme Court' s 1973 decision in Community for Public Education & Religious Liberty v.

Nyquist.5 In Nyquist, the Court held that the state may not provide unrestricted direct financial

grants for maintenance and repairs to religious schools, unrestricted partial tuition grants to

parents of low-income students attending religious schools, or income tax benefits directed

exclusively to parents attending private schools. The position of plaintiffs was that the Cleveland

program was indistinguishable from the New York tuition reimbursement program that was held

unconstitutional in Nyquist. The defendants countered with an argument based on footnote 38 in

Nyquist, in which the U. S. Supreme Court noted that that case did not involve a situation in

which funds were "made available generally without regard to the sectarian-nonsectarian, or

public-nonpublic nature of the institution benefited."'" Subsequent U. S. Supreme Court

decisions that upheld a variety of other programs that benefited religious schools were also

cited.59




54 463 U.S. 388, 103 S. Ct. 3062 (1983).

"5(All laws, of a general nature, shall have a uniform operation throughout the State"

56 "Secure a through and efficient system of common schools throughout the State...'

57413 U.S. 756, 93 S.Ct. 2955, 37 L. Ed. 2d 948 (1973).

58Nyquist, 413 U.S. at 782 n. 38, 93 S. Ct. at 2970 n. 38.
59 Supreme Court decisions subsequent to Nyquist that have upheld a variety of programs that provided public funds
to religious schools included y..an,, v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L.Ed. 2d 391 (1997) (public
school teachers providing remedial education to disadvantaged students in parochial schools); Zobrest v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 113 S. Ct. 2462, 125 L.Ed. 2d 1(1993) (sign-language interpreter provided for deaf
student in a religious high school); Witters v. Washington Dep 't ofSerys. For the Blind, 474 U.S. 481, 106 S. Ct.
748, 88 L.Ed. 2d 846 (1986) (state financial assistance for a student who is blind attending a private Christian










exclusive reliance on the Establishment Clause when deciding cases of public funding for

religious schools.21

The constitutionality of school voucher programs that permit religious school participation

rely on the U. S. Supreme Court' s evolving interpretation of the Establishment Clause. The

Establishment Clause is one of the most passionately debated sections of the Constitution. At

first glance it appears to be straightforward, but interpreting its meaning when dealing with

government aid to religious schools has proved to be a controversial and challenging task.22

While there is general agreement that the government may not create a formal establishment by

recognizing a state church, taxing citizens to support churches, or requiring church membership,

broad consensus ends there.

The history surrounding the enactment of the Establishment Clause leaves the intent of the

Framers open to several interpretations.23 There exists little primary evidence regarding the

Framers' interpretation of the term "establishment" when the phrase was written.24 The U. S.

Supreme Court views regarding the Establishment Clause range from strict separationists, who

believe that even incidental aid to or recognition of religion by government violates the

Establishment Clause, to accommodationists, who believe that government should act according

to the religious character of the people, and that non-preferential aid to religious institutions does


21 The state of Maine has examined the Free Exercise implications of its voucher program. Tuition payments to
secondary school students, whose school district does not have a secondary school, are available only to students
attending non-religious schools. The Maine Supreme Court held that denying religious schools from participation in
the program is not an impermissible burden on an individual's free exercise of religion and therefore does not
violate the Free Exercise Clause. Bagley v. Raymond School Dept., 728 A.2d 127, 130 (Me. 1999).

22 See M~itchell v. Helms, 530 U.S. 793, 807 (2000). "In the over 50 years since Everson we have consistently
struggled to apply these simple words in the context of government aid to religious schools."
23 Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment. Washington,
D.C.: American Enterprise Institute, 1978.

24 Leonard W. Levy, The Establishment Clause: Religion and the First Amendment. 2nd ed. Chapel Hill: University
of North Carolina Press, 1994. p. xxiii.










Fully operational the next year, the Pilot Proj ect Scholarship Program included two

separate educational assistance programs.27 First, the program provided grants to students for

tutorial assistance.28 The second, much more controversial component provided selected

kindergarten through eighth-grade students with tuition assistance to attend any participating

"alternative schools."29 The legislative term "alternative school" was defined as a public school

located in an adjacent school district or a private school a ithrin the Cleveland City School

District.30

The Cleveland Scholarship and Tutoring Program provided scholarships to students,

preferably those from low-income families, for tuition at private schools, including religious

schools.31 Students of families with incomes twice below the poverty level were eligible for

vouchers worth 90 percent of the tuition charges at an alternative school of their choice. Students

of families with incomes equal to or exceeding twice the poverty level were eligible for vouchers

worth 75 percent of such charges.32 Students from families above the low-income guidelines

were allowed to any remaining available vouchers. The available amount per voucher was not to

exceed $2,500.33

Vouchers were distributed through a random-selection lottery system. The lottery system

allowed students previously enrolled in private schools to participate, with a limitation of 25



27Ohio Rev. Code Ann. 3313.975(A) (West Supp. 1999).

28Id. at 3313.974(H). Tutorial assistance was defined by the Legislature as "instructional services provided to a
student outside of regular school hours approved by the conunission on school choice."

29 Id. at 3313.975(A).

I0d.at# 3313.974(G).

31 Your School and the Law. March 14, 2001 Vol. 4, No. 11. LRP Publications 2001
I2d. at 3313.978.
33Id.










general, Democrats favor parental choice limited solely to public schools. The NEA and AFT are

both adamantly opposed to vouchers that can be used at private and for-profit schools. Both

unions consider any government support of private or for-profit schools as a threat to public

schooling.

Typically, Republicans challenge the unions' motives concerning school choice. Voucher

opponents claim the NEA, the larger labor union, and the AFT primarily oppose school choice

because religious schools need not recognize unions as exclusive bargaining agents for their

teachers. The U. S. Supreme Court in NLRB v. Catholic Bishop of Chicago,208 held that religious

schools that teach both religious and secular subj ects are not within the jurisdiction of the

National Labor Relations Act.209 According to conservative legal scholars, union opposition to

school choice is simply an effort to maintain a collective bargaining monopoly. If school choice

proposals become widely implemented and upheld by the courts, membership and dues would

decline as students and teachers transfer to religious schools that are beyond the authority of the

National Labor Relations Board (NLRB).210

Summary

Beginning in the 1950s,211 school vouchers have continuously been a controversial public

policy subj ect. This chapter traced the path of school vouchers from a purely academic

consideration to a recognized school reform implemented in select citieS212 and states.213 The


208 440 U.S. 490 (1979).

209 29 U.S.C. ## 151-169.

210 Robert Alt. "Cleveland's School Voucher Program: The Politics and the Law." On Principle. Vol. 6, No. 1, 1998.
Available at htll \p w\ \\ itashbrook.org/publicat/onprin/v6nl/alt.htm (last visited Feb. 4, 2007).

211 Milton Friedman. "The Role of Government in Education." Economics and the Public Interest. Robert A. Solo,
ed. New Brunswick, NJ: Rutgers University Press, 1955, 123-144.

212 See Milwaukee Parental Choice Program (Wis. Stat. 119.23 (1995-96)) and Ohio Pilot Project Scholarship
Program (Ohio Rev. Code Ann. 3313.974 3313.979 (Baldwin Supp.2001)).










private and religious education will rest more squarely in the hands of the American public and

the policymakers they elect."120

From an education policy viewpoint, the Brown decision is an example of the use of

mandates as policy mechanism, whereas the Zelman decision is an example of incentives as

policy mechanism.121 Brown mandated desegregation while Zelman held that the use of vouchers

as an incentive to expand the choices of parents is permissible. The decision to participate in a

voucher program rests with the families and private schools, since neither is obligated to

participate.

Another difference is that "unlike mandates, incentives are not intended to produce

uniformity of behavior."12 Therefore, the likely consequences of Zelman hinge on the mix of

incentives built into a particular voucher program by policymakers.123 The following policy

considerations are at the core of any voucher plan:

Student eligibility for vouchers (i.e., will vouchers be available to eligible families even if
their children are already enrolled in private schools?).

Access (i.e., the number of private schools willing to accept vouchers).

Money/Cost (i.e., what if the voucher isn't enough to cover tuition at the school of a
family's choice? Should parents be responsible for paying the remainder? Who is going
to make up the difference in public school dollars?).

Equal opportunity (i.e., what will be the impact of vouchers on all students and all
schools? How will that impact affect our society?).





'20 Amy Stuart Wells. Reactions to the Supreme Court Ruling on Vouchers: Introduction to an Online Special Issue.
http:.//www.tcrecord. org/Content.asp? ContentlD=10 949
121 See Aaron Pallas. Don't Believe the Hype: A Commentary on Zelman. Available at
http:.//www.tcrecord. org/Content.asp? ContentlD=10 969.
122Id.

123 Id.










Significant Doctrinal Shift

In Agostini v. Felton,220 the U. S. Supreme Court approved a program that, under Title I of

the Elementary and Secondary Education Act of 1965 (ESEA),221 prOVided public school

employees to teach remedial classes at private schools, including religious schools. In so holding,

the Court overruled Aguilar v. Felton222 and partially overruled School District of Grand Rapids

v. Ball.223 JUStice O'Connor, writing the maj ority opinion, summarized "... New York City' s

Title I program does not run afoul of any of the three primary criteria we currently use to

evaluate whether government aid has the effect of advancing religion: It does not result in

governmental indoctrination; define its recipients by reference to religion; or create an excessive

entanglement."224

The decision marked a dramatic shift in school aid jurisprudence when the Court departed

from ruling that all government aid to religious schools was unconstitutional. In Aguilar the

Court held that publicly funded remedial education services provided at religious schools

violated the Establishment Clause of the First Amendment because it created an excessive

entanglement between Church and State.225 As a result of this decision remedial education

services were provided off-site. Students were bussed from their religious schools or they

received their remedial education services in vans parked outside of their religious schools.




220 521 U.S. 203 (1997).

221 20 U. S.C. # # 6321l(a) (1994). Part A of Title I of the Elementary and Secondary Education Act requires federal
funds to be made available on an equitable basis to eligible students attending private as well as public schools.

222 473 U.S. 402 (1985).

223 473 U.S. 373 (1985).
224~ .: I, I at 234.

225 See Aguilar, 473 U.S. at 412-13.










that they will erode the public forums in which decisions with societal consequences can

democratically be resolved."183

Voucher opponents claim that voucher advocates who support marketplace education have

a political agenda that has nothing to do with concern for lower income students. The belief is

that wholesale vouchers would allow the wealthy to free themselves from the legislative and

legal safeguards (i.e., affirmative action) won for the disenfranchised in the 1960s.184 Public

school supporters argue that the forms of protection that exist for low-income families have been

secured by governmental regulation, not the free market. They argue that deregulation over the

past decade has eroded those protections and greatly increased the disparity between the wealthy

and the poor in the United States. According to these opponents, a market system of education is

merely an extension of deregulation and promises to compound social inequities.'" In addition,

voucher opponents claim that even though the many governmental regulations (i.e.,

desegregation, bilingual education, and education of the handicapped) in public schools have not

adequately secured equality of educational opportunity, it does not follow that the market can do

any better.186

Free market opponents argue that education is a fundamental right that should not be

distributed according to parental income. Their justification for government run schools is the

belief in redistribution of educational opportunity. Parental resources are unequal, so even with a



'83 Jeffery R. Henig. Li, ri,,, i.-, s; School Choice: Limits of the Alarket ~etaphor. Princeton, N.J.: Princeton
University Press, 1993, xiii.

184 Bob Lowe. "The Hollow Promise of School Vouchers." In Education, Inc. Turning Learning into Business.
Alfie Kohn and Patrick Shannon, eds. Portsmouth, NH: Heinemann, 2002. Available at
http://wwly .rethinkingschools.org/specialrprsouhreor/ssolyhtl (last visited Feb. 1, 2007).
1s" Bob Lowe. "The Hollow Promise of School Vouchers."
http://wwy. rethinkingschools. org/SpecPub/so s/so shollo. htm#6b
1 s" d~










religious institution to become a pastor. In Zobrest v. Catalina Foothills School District,143 the

Court determined that a federal program that paid for sign language interpreters for deaf children

enrolled in religious schools was not a violation of the Establishment Clause.

The Court found 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 subj ect to challenge under the Establishment Clause." A program that

shares these features permits government aid to reach religious institutions only by way of the

deliberate choices of individual recipients. 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." This

program is one of "true private choice," consistent with M~ueller, Witters, and Zobrest, and thus

constitutional. The Court noted that they "have never found a program of true private choice to

offend the Establishment Clause."

In making its decision, the Court' s maj ority first held that the constitutional inquiry did not

turn on "whether and why, in a particular area, at a particular time, most private schools are run

by religious organizations, or most recipients choose to use the aid at a religious school."

Therefore, despite the overwhelming number of parents choosing religious schools, the program

does not violate the Establishment Clause because any "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."





143 509 U.S. 1, 1993










The Court found it irrelevant to the constitutional inquiry that the vast maj ority of beneficiaries

were parents of children in religious schools.43

In Witters v. Wa~shington Department of Services for the Blina4 the Court unanimously

upheld a vocational rehabilitation program which provided benefits directly to qualifying

individuals regardless of the nature of the institution benefited. The use of public funds by a

student who is blind at a Bible college does not violate the Establishment Clause.45

In Zobrest v. Catalina Foothills School District46 the Court applied the reasoning from

decisions in M~ueller and Witters to hold that the Establishment Clause does not prevent a school

district from furnishing a student with a sign language interpreter. The Court examined the intent

of the Individuals with Disabilities Education Act (IDEA),47 and found that it distributed[]

benefits neutrally to any child qualifying as 'disabled."'48 The Court found that parents select the

school their children attend and therefore "a government-paid interpreter will be present in a

sectarian school only as a result of the private decision of individual parents."49 Most

importantly, the Court emphasized that with parental choice the "circuit between government

and religion was broken, and the Establishment Clause was not implicated."so





43 Id. at 401.

44 474 U.S. 481 (1986).
45 Id. at 489-90.

46 509 U. S. 1 (1993).

47 Id. at 3; 20 U.S.C. ## 1400-91 (2000). The Arizona counterpart of the IDEA is codified at Ariz. Rev. Stat. Ann.
15-761 to -774 (West 2002).

48 Zobrest, 509 U.S. at 10.
49 Id. at 10-11.

so Zelman, 536 U.S. at 652. (referring to the Witters decision).




















Compelling interest


Concur


Constitutional


Deci si on


Dictum


assistance provided to individuals, rather than to the church-
related institutions which those individuals happen to attend, is
not 'aid' to religion and is not forbidden by the Establishment
Clause. In Cochran the aid was specifically the provision of
secular textbooks to students attending parochial schools. This
doctrine was important in the Everson v. Board of~ducation2
and all later textbook cases beginning with Board of Education
v. Allen.3

A tool of constitutional interpretation that requires the state to
demonstrate that depriving individuals or groups of
fundamental rights (i.e., to freely exercise their religion) is
necessary for the public good.

To agree; act together; consent. To agree with the result
reached by another, but not necessarily with the reasoning or
logic used in reaching such a result. In the practice of appellate
courts, a "concurring opinion" is one filed by one of the judges
or justices, in which he/she agrees with the conclusions or the
result of another opinion filed in the case (which may be either
the opinion of the court or a dissenting opinion) though he/she
states separately his/her views of the case or his/her reasons for
so concurring.

Consistent with, authorized by or not conflicting with any
provision of a constitution.

A popular rather than a technical or legal word referring to the
judgment or conclusion of a court with respect to an issue.

Individual views or opinions of a judge which may be in
addition or unnecessary to the determination of the court;
opposite of Holding.


Doctrine


A rule, principle, theory or tenet of the law.


Due process clause


Two such Clauses are found in the U. S. Constitution; one in
the Fifth Amendment, pertaining to the federal government,
and the other in the Fourteenth Amendment which protects
persons from state actions. It was through the Due Process
Clause of the Fourteenth Amendment that both the
Establishment and Free Exercise Clauses were held to apply to
the states, as well as to acts of Congress.


2 330 U.S. 1 (1947).

3 392 U.S. 236 (1968).










"allocated on the basis of neutral, secular criteria that neither favored] nor disfavor[ed] religion,

and [was] made available to both religious and secular beneficiaries on a nondiscriminatory

basis."263 Since aid was allotted to each school on the basis of enrollment, the independent and

private decisions of parents determined how much money was provided to private schools.264

Parents had no incentive to choose religious education over public school because "[t]he aid

followed] the child."265

The plurality's reliance on neutrality as the most important factor in evaluating

constitutionality was not reflected in Justice O'Connor' s concurring opinion.266 JUStice O'Connor

maintained that [t]he plurality's treatment of neutrality comes close to assigning that factor

singular importance in the future adjudication of Establishment Clause challenges to

government school aid programs."267 JUStice O'Connor instead relied on criteria outlined in

Agostini.268 The Chapter 2 program, like the program upheld in Agostini, benefited all children

attending both private and public schools, and the aid provided was supplemental, thereby

justifying Justice O'Connor's reliance on the revised Lemon criteria.269 Another important feature

in Justice O'Connor' s concurrence was the importance of safeguards in school aid programs to

prevent the diversion of aid to religious purposes.270 According to Justice O'Connor, the




263 Id. at 829 (qluotilg .i~ ;.., a v. Felton, 521 U.S 203, 231 (1997)).
264 Id. at 830.

265 Id.

266 Id. at 837 (O'Connor, J., joined by Breyer, J., concurring).
267 Id

268 Id.

269 Id. at 844-49.

"70Id. at 860-66.










lower federal and all state courts in the United States, while decisions in one of the Federal

Circuit Court of Appeals decisions would only be persuasive in other circuit courts.

Secondary authority is anything other than primary authority that a court could use as a

basis for decision. Law reviews, educational articles, legal encyclopedias, and relevant citations

from judicial decisions were consulted for commentaries and interpretation of the law. Relevant

cases were identified through recognized legal research sources such as court reporters and

LexisNexis computer searches.

Data Analysis

To determine the significance for such research, a search was made of school voucher legal

issues. Once pertinent U. S. Supreme Court, federal, and state cases were identified, inductive

analysis was used to analyze the precedence represented in case law. The legal issues were then

subjected to comparative analysis. Such analysis compared similarities and differences in

constitutionally permissible aid to religious schools to previous U. S. Supreme Court cases. The

purpose was to determine "a consistent trend, a series of unique situations, or the beginning of a

new direction."191

The Limitations

The scope of this study focused on the constitutionality of the Ohio Pilot Proj ect

Scholarship Program in the U. S. Supreme Court case of Zelman v. Simmons-Harris. This study

analyzed only relevant cases in state court, federal courts, and U. S. Supreme Court decisions on

constitutional issues affecting public aid to religious schools and vouchers.

This study was also limited to examining the legislation enacted, the litigation that led to

and resulted from this legislation, and the implications for educational leaders. It was beyond the


191 J. H. McMillan and S. Schumacher. Research in Education: 4 Conceptual Introduction. New York, NY:
HarperCollins, 1989.











Raywid, Mary Anne. "The Mounting Case for Schools of Choice." In Public
Schools by Choice: Expanding Opportunities for ParentsPPP~~~~PPP~~~PPP Students, and Teachers. Joe
Nathan, ed., 13-40. St. Paul, MN: The Institute for Learning and Teaching, 1988.

Reagan, Ronald. Public Papers of the Presidents of the United States. Washington,
DC: Office of the Federal Register, 1983.

Reagan, Ronald. Public Papers of the Presidents of the United States. Washington,
DC: Office of the Federal Register, 1987.

Ridenour, Caroyn S., Thomas J. Lasley, II, and William L. Bainbridge. "The Impact of
Emerging Emerging Market-Based Public Policy on Urban Schools and a Democratic
Society." Education and Urban Society. Sage Publications Nov 01, 2001 34: 66-83.
Available at http://www. schoolmatch.com/articles/EUS1101l.htm.

Ritter, Gary W., Rush, Alison, & Rush, Joel. 2002. How Might School Choice Affect
Racial Integration in Schools? New Evidence from the ECLS-K. Georgetown Public
Policy Review. 7, 2, 125-136.

Rose, Lowell C. & Alec M. Gallup, The 36th Annual Phi Delta Kappa/Gallup Poll of the Public's
Attitudes Toward the Public Schools, Phi Delta Kappan, 86, 41-52, Sept. 2004. Available
at http://www.pdkintl_ org/kappan/kO409pol .htm

Rotherham, Andrew J. "How Bush Stole Education." Democratic Leadership Council
Blueprint Ma'~gazine. March 25, 2002. Available at
http://www.ndol.org/ndol_ci.cfm?kaid= 110&subid=1 81&contentid=250319

."Putting Vouchers in Perspective: Thinking About School Choice after Zelman v.
Simmons-Harris." July 2, 2002. Available at
http ://www.ppionline.org/documents/Ed~vouchers_0.d

Rothstein, Richard, The Way We Were: The Realities ofAmerica's Student Achievement
Washington, D.C.: Century Foundation, 1998.

Rothstein, Richard and K.H. Miles. IWhere 's the M~oney Gone? Changes in the Level and
Composition of Education Spending. Washington, DC: Economic Policy Institute, 1995.

Rouk, Ujllik, Joyce Pollard, and Julia Guzman. "Vouchers: Yea or Nay." Insights on Education
Policy, Practice, andResearch, Austin, TX: Southwest Educational Development
Laboratory, Number 12, September 2000. Available at
http://www. sedl. org/policy/insights/nl12/ (last visited June 9, 2002).

Rudolph, Frederick., ed. Essayssssssssss~ on Education in the EarlyE~~~~EEEEE~~~~EEEE Republic. Cambridge, MA: Harvard
Press, 1965.










held that the First Amendment was violated when state funds paid private school teachers'

salaries and purchased instructional materials for religious schools. The Court created a three-

prong standard for determining Establishment Clause challenges to state statutes.8 First, the

statute must have a secular legislative purpose.89 Second, the primary effect cannot have the

effect of advancing or inhibiting religion.90 Finally, the law cannot result in the state becoming

excessively entangled with religion.91 The Lemon decision established a significant precedent

forbidding direct aid to religious schools. The Court' s unanimous opinion set the judicial tone for

the maj ority of public aid to religious school cases during the following two decades.

In 1971, Serrano v. Priest was the first school finance case that challenged the wealth-

related disparities in per-pupil spending generated by California's education finance system.92

The plaintiff s argued that the school funding scheme violated the equal protection clause of the

California constitution. The plaintiffs' argued that children in property poor school districts with

limited taxing power were discriminated against because the ability of the school to raise funds

depended on the wealth of the students' neighborhood. The California Supreme Court held that

the state's funding scheme violated the Equal Protection Clause of the U. S. Constitution. The

California Supreme Court ruled that education is a fundamental constitutional right and that the

existing system of public finance, which was essentially the local property tax, was

unconstitutional. This ruling reasoned that all children in California had a fundamental right to

equal public education. The California Supreme Court ordered the legislature to equalize funding


88Id. at 612-13.

89 Id. at 612.

91) Id.

91 Id. at 613.

92 487 P.2d 1241 (Cal. 1971).










ignore the clear language of the Constitution."146 In COnclusion, Judge William Van Nortwick,

writing for the maj ority, stated that "If Floridians wish to remove or lessen the restrictions of the

no-aid provision, they can do so by constitutional amendment."147 As required by law, the court

certified the constitutional question for further review by the Florida Supreme Court as one

involving a question of "great public importance."148

The state appealed to the Florida Supreme Court. On June 7, 2005, the court heard oral

arguments on the constitutionality. On January 5, 2006, the Florida Supreme Court held the

Opportunity Scholarship Program (OSP) violates the language under Article IX of the Florida

Constitution, the state's "uniformity" clause.149

Maine

In Eulitt v. Maine Dept. ofEduc.,lso the First Circuit Court of Appeals rej ected an Equal

Protection challenge to a Maine voucher program that specifically excluded sectarian schools

from participation. The appellate court held that "state entities, in choosing how to provide

education, may act upon their legitimate concerns about excessive entanglement with religion,

even though the Establishment Clause may not require them to do so."" Additionally, "states

are not required to go to the brink of what the Establishment Clause permits,"152 and "it would be

illogical to impose upon government entities a presumption of hostility whenever they take into



14' Id.

147 Id.

14s Holines II, 886 So. 2d at 344.

149 EllS/ v. Holines, 919 So. 2d 392 (Fla. 2006) (Holmes III).

'5o 386 F.3d 344 (1St Cir. 2004).
151 Id. at 355.

1 Id.










Summary

This study traced the school voucher movement in the United States, specifically

examining the Ohio Pilot Proj ect Scholarship Program and subsequent legal challenges that

culminated in the U. S. Supreme Court's Zelman v. Simmons-Harris decision. First, the study

highlighted parental choice as a policy trend the Court found persuasive in Zelman. Secondly,

this research summarized the U. S. Supreme Court Establishment Clause standards with regard

to direct public aid for religious schools, traced the shift in U. S. Supreme Court Establishment

Clause doctrine, summarized indirect public aid for religious schools, and described pertinent

judicial decisions the Court found applicable in Zelman. Third, a review of litigation was

presented pertaining to the Cleveland Voucher Program and culminating with the U. S. Supreme

Court decision in Zelman v. Simmons-Harris. Finally, this study briefly reviewed school voucher

legislation at the federal and state level since the Zelman decision.

Parent's Rights, a Persuasive Policy School Voucher Argument

In the 1990s, a resurging interest in parental choice as an essential policy came to the

forefront of the school voucher debate. From a historical perspective, the federal government' s

efforts to promote various school policies have led, in part, to the increased interest in school

vouchers as a public policy tool. Trends in school reform generally occur in response to a

particular societal need. During the 1990s, interest in Milton Friedman's school voucher concept

was renewed. He recommended that families be given subsidies in the form of educational

vouchers to purchase educational services for their children at government approved schools, in

much the same way people buy any necessary commodity. 13 He advocated freedom for families

to spend the voucher amount, and any additional amount, at the educational institution of their


13 Milton Friedman. "The Role of Government in Education." In Economics and the Public Interest. Robert A.
Solow, ed. New Brunswick, N.J.: Rutgers University Press, 1955, 123-144.










account plausible entanglement concerns in making decisions in areas that fall within the

Eigurative space between the Religion Clauses."153

The apparent effects of the Zelman decision seem to align with the political climate that

has existed since the late 1990s. This landmark decision, supported by free market principles,

brings school voucher issues to the doorstep of each state. Now, each state has the opportunity to

address the needs of its own failing public schools. The inherent appeal of school vouchers is the

promise to improve educational options and performance for low-income students. Whether

vouchers can achieve these goals depends on the design and implementation of the specific

voucher plan.154 One point is certain: school vouchers will continue to be a topic of public debate

over the next few years as states wrestle with ways to improve education for all students.

Recommendations for Further Research

Zelman does not change the likelihood that the maj ority of students will continue to be

educated in conventional public schools. For the most part, middle-class families are satisfied

with their public schools. "' A maj or concern still remains in regards to the grave inequalities

that exist between public schools and the unfairness of the facilities and resources of public

schools that serve poor children.15 One reform tool to address the dire needs of low-income

students is targeted choice programs. The competitive capacity of voucher schools is limited


153 Id.

154 See Isabel V. Sawhill and Shannon L. Smith. August 5, 1998. Vouchers for Elementary and Secondary
Education. Retrieved August 12, 2003, from
http:.//www.brookings. edu/dybdocroot/views/papers/bdp/bdp004/bdp0.pdf
1ss See Lowell C. Rose and Alec M. Gallup, The 36th Annual Phi Delta Kappa/Gallup Poll of the Public's Attitudes
Toward the Public Schools, Phi Delta Kappan, Sept. 2004, at 41, 42. Available at
http://pdkintl.org/kappan/kO409pol.htm. The poll found that 61 percent of parents give the schools in their
community an A or a B.

156 JOnathan Kozol. Savage Inequalities: Children in America 's Schools. New York, NY: Crown Publishers, 1991.

's? See John E. Coons and Stephen D. Sugarman. Education by Choice: The Case for Family Control. Berkeley, CA:
University of California Press, 1978, 3 1; Henry M. Levin. "Educational Choice and the Pains of Democracy." In










therapy,195 and special education serviceS196 COnducted by public employees, but struck down

grants for building construction and maintenancel97 or that supplanted the teaching of secular

subj ects. 198

In M~itchell, the Court reaffirmed that its holdings "provide no precedent for the use of

public funds to finance religious activities."199 The Court took great care to note that under the

programs it had approved no [public] funds ever reached the coffers of religious schools."200

The Court agreed that there are "special Establishment Clause dangers ... when money is given to

religious schools."20 This principle held true even when the government program provided aid

alike to public and private religious and nonreligious entities.20

Voucher opponents view this decision as a shift in the Court' s position on governmental

support of religion. In deciding the case, the maj ority relied on the distinction between

government programs that provide direct aid to religious schools, and those providing indirect



192 See Regan, 444 U.S. at 657-58; Wolman, 433 U.S. at 240-41.

193 Wolman, 433 U.S. at 242.

194 See id.

195 Id. at 248.

196 See Agostini, 521 U.S. at 234.

197 See Nyquist, 413 U.S. at 779-80.

198 See Ball, 473 U.S. at 377-78; Wolman, 433 U.S. at 248-51.

199 See Mitchell, 530 U.S. at 840 (O'Connor, J., concurring in the judgment) (quoting Rosenberger, 515 U.S. at 847
(O'Connor, J., concurring).

200, j. \n, 1 521 U.S. at 228; Zobrest, 509 U.S. at 10.

201 Mitchell, 530 U.S. at 818-19 (plurality opinion) (quoting Rosenberger, 515 U.S. at 842.

202 Rosenberger, 515 U.S. at 842; Bowen, 487 U.S. at 614-15; Roemer v.Maryland Pulic. Works Bd., 426 U.S. 736,
747 (1976) ("The Court has taken the view that a secular purpose and facial neutrality may not be enough, if in fact
the State is lending direct support to a religious activity. The State may not, for example, pay for what is actually a
religious education, even though it purports to be paying for a secular one, end even though it makes its aid available
to secular and religious institutions alike.").










The Common School Movement

Horace Mann, "the father of the American common school,"19 WaS elected the first

Secretary of the Massachusetts Board of Education in 1837. While Secretary for twelve years,

Mann started a biweekly "Common School Journal" for teachers, wrote annual reports to the

state legislature, and published articles and essays about education in newspapers and j ournals.

He was a skilled public speaker and writer who developed arguments that appealed to the

particular interests of different constituencies. When addressing industrials, Mann emphasized

the importance of public schools in the development of an educated and moral work force and

argued that supporting public education was an investment in the state's economy. In his

Eleventh Annual Report of 1847, Mann proposed that education would make the nation

prosperous and "redeem the state from social vices and crimes."20

When his audience was working people, Mann stressed the democratic purpose of public

schools in the furtherance of social and economic equality. In his TMI Ilflb Annual Report of 1848,

Mann described public education as "the great equalizer of the conditions of men--the balance

wheel of the social machinery."21 He envisioned public schools educating students from all

social classes together. Universal schooling would be the vehicle for social and economic

mobility for students from lower socioeconomic classes. Students, by attending school, could

gain the necessary skills and knowledge to better their social and economic status.

Mann and other educational reformers maintained that society had an obligation to educate

other people' s children by providing a centralized system of public schools supported by state


19 See Lawrence A. Cremin, ed. The Republic and the School: Horace Alann on the Education of Free Men. New
York: Teachers College Press, 1957; Jonathan Messerli. Horace Mann: 4 Biography. New York: Knopf, 1972.

20 Lawrence A. Cremin, ed. The Republic and the School: Horace Alann on the Education ofFree Men. New York:
Teachers College, 1957, 79-80, 84-97. Available at http://usinfo.state.gov/usa/infousa/facts/eorc1.t
21 Id










education. Concerns regarding student achievement replaced equity concerns in policy agendaS26

and sparked the present period of intense school reform, which calls for higher academic

standards and privatization. Inconsistent results from these reforms (i.e., standards-based

reforms, governance reforms) have made it clear that educational change is a slow process 27and

that its ultimate success or failure is still unclear.28

In 1994, Congress passed the Goals 2000: Educate America Act,29 with the intent that "all

students can learn and achieve to high standards and must realize their potential if the United

States is to prosper."30 As a result of the first education summit involving the President and the

National Govemnors' Association in 1989,31 this legislation aimed to establish common goals for

the improvement of public schools throughout the nation. A new focus on achievement grew

from the bipartisan opinion that too many students were not achieving (by either perceived or

actual deficits) at levels necessary for success in the global economy.32 Immediately, efforts to


commission warned the "educational foundations of our society are presently being eroded by a rising tide of
mediocrity that threatens our very future as a Nation and as a people."

26Mark G. Yudof et al., Educational Poliqv and the Law, 4th ed. Belmont, CA: Wadsworth Group, 2002, 773.

27 Richard F. Elmore and Milbrey W. McLaughlin. Steady Work: Poliqv, Practice, and the Reform of 4merican
Education. Santa Monica, CA: RAND Corporation, 1988: David Tyack and Larry Cuban. Tinkering Toward
Utopia: 4 Century of Public SchoolReforni. Cambridge, MA: Harvard University Press, 1995.

28Helen F. Ladd and Janet S. Hansen, eds. Making Money Matter: Fe to 1.. e g; merica 's Schools. Washington, D.C.:
National Acadenw Press, 1999, 18.

29 Goal 2000: Educate 4merica 4ct. 20 U.S.C. # 5801 et seq., Pub. L. 103-227, Mar. 31, 1994, 108 Stat. 125-191,
200-211, 265-280.

"0 Id. at 301(1).

31 Helen F. Ladd and Janet S. Hansen, eds. Making Monev Matter: Financing 4merica 's Schools. Washington,
D.C.: National Acadenw Press, 1999, 15.

32See Milton Friedman, Capitalism and Freedom. Chicago, IL: University of Chicago Press, 1962; John E. Coons
and Stephen D. Sugarman, Education by Choice: The Case for Family Control. Berkeley, CA: University of
California Press, 1978: John E. Chubb and Terry M. Moe, Politics, Markets, and 4merica 's Schools. Washington,
DC: Brookings Institution, 1990: John E. Coons and Stephen D. Sugarman, Scholarships for Children. Berkeley,
CA: Institute of Governmental Studies Press, 1992: Myron Lieberman, Public Education: 4n autopsy. Cambridge,
MA: Harvard University Press, 1993: Anw Stuart Wells, Time to Choose: 4merica at the Crossroadv of School
Choice Poliqv. New York, NY: Hill & Wang, 1993: Peter W. Cookson Jr., School Choice: The Struggle for the Soul









At the time of enactment, the Cleveland Municipal School District was the lone district

under a federal court order giving district control to the state superintendent. The court issued the

order in response to an acutely high student failure and dropout rate discovered as a result of a

district performance audit. In the 1999-2000 school year, 3,700 of Cleveland' s 75,000 students

participated in the voucher program, 82 percent of participating schools were religiously

affiliated, 96 percent of participating students attended private religious schools, and 60 percent

of participating students came from families living below poverty level."

The fifty-six participating private, mostly religiously affiliated schools are prohibited from

discriminating based on religion and must agree not to teach hatred of any individual or group

based on religion. The state superintendent, who is appointed by the state board of education

composed of both elected and appointed members, is authorized to establish admission rules and

procedures for participating schools. The voucher program is part of a broader Cleveland school

district initiative to improve school choice that includes community and magnet schools which

receive two and three times the amount of funding available to private schools participating in

the voucher program.

The Cleveland voucher program permitted religious schools to participate from its

inception and as a result the program's constitutionality was immediately challenged. During the

state court phase of litigation, the Ohio Supreme Court upheld the constitutionality of the

Cleveland program under the "Compelled Support" Clause of the Ohio Constitution, as well as

under the Establishment Clause.152 Before being appealed to the U. S. Supreme Court, the Sixth

Circuit Court of Appeals struck down the Cleveland voucher program as a violation of the



151 Id.

152 Sinunons-Harris v. Goff 711 N.E.2d 203 (Ohio 1999).










The school voucher debate reflects the fundamental economic choice policymakers face

when deciding how to allocate scarce resources: whether to use the marketplace or to use

government as the predominant regulator.215 There are no proven, clear-cut solutions. Since the

present organizational structure appears to be "ill-suited to the effective performance of

American schools,"216 legislators must decide whether to reform the present paradigm or to build

a completely new one. These choices rely on individual conclusions regarding meaningful

change prospects within the current educational structure, and on values that, hopefully, will

enhance both fairness and productivity.217





























215 C. Wolf, Jr. Markets or Governments: I i,. .ug between ImperfectAlternatives. RAND Research Study.
Cambridge, MA: MIT Press, 1993, 1. Available at http://www.rand.org/pubs/notes/2006/N2505.d (last visited
Feb. 4, 2007).

216 JOhn E. Chubb and Terry M. Moe. Politics, Markets, andAmerica 's Schools. Washington, DC: Brookings
Institution Press, 1990, 21.

217 Helen F. Ladd and Janet S. Hansen. Making Money Matter: Financing America 's Schools. Washington, D.C.:
National Academy Press, 1999, 164.









CHAPTER 3
ESTABLISHMENT CLAUSE JURISPRUDENCE

Introduction

Since the early 1900s, the U. S. Supreme Court has resolved a broad array of constitutional

appeals that involve public elementary and secondary schools. By 1918 all states had adopted

compulsory school attendance laws. Compulsory attendance laws required all children to attend

state approved schools. The early public school cases before the Court dealt with Fourteenth

Amendment issues.

In Pierce v. Society of Sistersl the U. S. Supreme Court unanimously over-turned an

Oregon law that would have required all children to attend only public schools. The Court held

that the Oregon Compulsory Education Act2 requiring all children to attend public schools

violated the due process clause of the Fourteenth Amendment. The due process clause states,

"...nor shall any state deprive any person of life, liberty, or property without due process of

law."3 The landmark decision established the right of privately operated schools to coexist with

publicly operated and funded school systems. The Court affirmed that the state may reasonably

regulate all schools and may require all children to attend some school, but the state may not

force children to attend only public schools.

In Pierce the Court acknowledged the "liberty of parents and guardians to direct the

upbringing and education of children under their control."4 Currently, some scholars view Pierce

Pierce as providing precedent for school vouchers, especially for low income families who



S268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
I1d.

SU. S. ConIst. Amend. XIV 1.
SPierce at 534-35.










School Voucher Opponents

School voucher opponents strongly believe that nowhere in the world is access to

educational opportunity broader than in the United States."' Public school advocates maintain

that as the United States has become more diverse, public education stands out as the one

institution that unifies Americans. Public schools are committed to educate all students and

private schools provide a useful purpose but do not offer the same guarantee to all students.

Opponents of vouchers are committed to the special status of public schools "...as

producers of values, perspectives, knowledge, and skills which are fundamental to

community."176 Opponents fear that "privatizing the governance and operation of schools will

undermine their public purposes"'" by the erosion of the public forum where all citizens

participate in discussions over what constitutes an appropriate public education."

Voucher opponents view education as a public good and see the goals of education as

advancing and sharing knowledge, while the main goal of the free market is to maximize

profits.179 Public education is similar to the military's responsibility for national defense or the

police's responsibility for public safety. It is not like a corporation's goal of providing an

efficient product or service at a profit.





175 Louann A. Bierlein. ControversiallIssites in Edricational Policy. Newbury Park, CA: Sage Publications, 1993, 1.

'76 See WEAC Professional Development and Training Paper. "Private School Vouchers." 1996. Available
http://www.weac.org/resource/may96/voucher~t (last visited Jan. 27, 2007).
177 Brian P. Gill, P. Michael Timpane, Karen E. Ross, and Dominic J. Brewer, Rhetoric Verstis Reality: What We
Know and FWhat We Keed to Know 4bolit Vouchers and Charter Schools. Santa Monica, CA: RAND, 2001, 22.
Available at http://rand.org/publications/MR/MR1 118/MR1118.chl.pdf. (last visited Feb. 2, 2007).

178 Michael Mintrom. Policy Entrepreneurs and School Choice. Washington D.C.: Georgetown University Press,
2000, 2-3.

1"9 JOhn McMurtry. "Education and the Market Model." Journal of Iii../ 1,1 y 1l ofEdrication, 25(2): 209-218, 1991,
211.










Cleveland public system and receive free tuition, while at private schools all parents were

required to make at least some co-payment.170

The Cleveland program actually provided less money to private schools, including

religious schools, than the state gave to various public alternatives -- $2,250 per student to

private schools compared with $4,167 to $6,000 in state funding per student for the public

options. The Zelman maj ority noted this fact, but also added "such features of the program are

not necessary to its constitutionality."17

Secondly, the maj ority emphasized the fact that public funds reached religious schools

because of the "independent choices of private individuals" as opposed to "programs that

provide aid directly [from the government] to religious schools."17 The Court cited earlier

decisions approving the provision of materials and equipment to religious schools, but holding

that direct aid must be restricted to secular uses even if made broadly available on the same

terms to religious and nonreligious alike.173 For school vouchers to be valid under the U. S.

Constitution, the voucher program must channel funds through some mechanism of individual

choice. In Cleveland, parents endorse their state check over to the school. States cannot provide

funds directly to private schools on a per-student basis because parents who chose a private

school would not have the option of declining the aid attributable to their child.174

Fundamental to the direct versus indirect question is whether the beneficiary of the

program is an institution or an individual. Simply assuring that an individual receives the check


'70 ld. at 2468.

171 Id

'7 Id. at 2465.

173 See Mitchell v. Helms, 530 U.S. 793, 840 (2000) (O'Connor, J., joined by Breyer, J., concurring in the judgment).
174 530 U.S. at 842.










The Federal Role in Education

The federal government' s role in education began with the passage of the Northwest

Ordinance.28 It was the first instance of federal aid for education. The trend continued with the

subsequent passages of the Morrill Acts,29 which were a result of growing demand for

agricultural and technical education in the United States following the Civil War. The Office of

Education was established by The Department of Education Act of 1867 and was transferred to

the Department of the Interior as the Bureau of Education in 1869. Its primary function was to

collect statistics and information about the condition of education in the country. The office had

no power to enforce compliance in any educational matter. In 1939 the Bureau, by executive

order, was transferred to the Federal Security Agency, which in 1953 was renamed the

Department of Health, Education, and Welfare.30 Modern school reform began with the creation

of the Cabinet-level Department of Health, Education, and Welfare (HEW) in 1953.31 The

Bureau of Education of HEW was the first successful attempt of the federal government to

directly influence public schools. Up until 1953, public schools had been considered the

responsibility of state and local governments. In 1979, President Carter signed the Department of

Education Organization Act, which created the Department of Education as a cabinet level

department.32



28 See Northwest Land Ordinance of 1787. The sixteenth section in each township was reserved for the maintenance
of public schools.

29 MOrrill Acts of 1862 and 1890 provided federal funds to establish land-grant colleges and state universities.

30 Title 20 Chapter 48 Subchapter I# 3401

31 "Special Message to the Congress Transmitting Reorganization Plan 1 of 1953 Creating the Department of Health,
Education, and Welfare, March 12, 1953," Public Papers of the Presidents (PPP) 1953 (Washington, D.C.:
Government Printing Office, 1958-61), 28.

32Department of Education Organization Act of 1979, 20 U. S.C. 3401 et seq., Pub. L. 96-88, Oct. 17, 1979, 93 Stat.
668.










The District Court ruled that Committee for Public Education and Religious Liberty v.

A)4mmi`' was the controlling precedent. The court compared the Cleveland program to the

unconstitutional tuition reimbursement program in Nyquist. The overwhelming maj ority of

participating schools in both programs were religious. Therefore, "...the alternatives available

under the Program are so narrow that a recipient's decision to attend a religious school cannot

reasonably be said to have been made only as a result of independent and private choices."86 The

court found the program impermissibly created incentives for students to attend religious schools

since voucher students can only redeem their vouchers at schools which have registered and are

authorized to participate in the program and the vast maj ority of those were religious.

On December 11i, 2000, a divided panel (2-1) of the Sixth Circuit Court of Appeals

affirmed the District Court' s permanent injunction." The maj ority held that the program violated

the Establishment Clause on the grounds that it had the primary effect of advancing religion and

"sectarian" education.88 The Sixth Circuit Court of Appeals did not consider other educational

options available to Cleveland parents because they were "at best irrelevant."89

Relying on the 1973 U. S. Supreme Court decision of Committee for Public Education and

Religious Liberty v. Nyquist,90 the Circuit Court of Appeals reasoned that in both Nyquist and the

Cleveland Program the majority of participating schools were religious.91 The court determined

that the program was not neutral and found that the relatively low scholarship amount

85413 U.S. 756, 93 S.CT. 2955 (1973).
86 Id. at 863.

87Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000).

88Id. at 961.

89 Id. at 958.

90 413 U.S. 756 (1973).

91 Simmons-Harris v. Zelman, 234 F.3d at 958.











Gatton v. Goff, Nos. 96 CVH-01-198, 96 CVH-01-721, 1996 WL 466-499 (Ohio
Com.Pl., Franklin Cnty.St July 31, 1996).

Pennsylvania

Pennsylvania Constitution, Article I Sec. 3

Pennsylvania Statute Annotated
24 P.S. ( 20-2001 (A).
24 P.S. ( 20-2003 (A) (1).
24 P.S. ( 20-2003 (B) (C) (1-3).
24 P.S @ 20-2005-B
24 P.S @ 20-2006-B
24 P.S @ 20-2007-B

Cases

Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 334
F.Supp. 1257 (E.D.Pa. 1071).

Vermont

Statutes

Vermont Constitution Chapter I., article 3. See j@ 4, 6[b]

Vermont Statute Annotated Title 16, @ 822(a)(1). See ( 3 [a]

Vermont Statute Annotated Title 16, j@ 822(a)(1), 824. See ( 4

Vermont Statute Annotated Title 16, j@ 822, 824. See ( 6[b]

Vermont Statute Annotated Title 16, Part 2, Chapter 21, @ 822

Cases

Swart v. South Burlington Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961).

Campbell v. Manchester Board of School Directors, 161 Vt. 441, 641 A.2d 352 (Vt.
1994).

Chittenden Town School Dist. v. Department of Educ., 738 A.2d 539 (Vermont 1999). 8










watchers speculated that the Court' s granting a stay of a lower court' s decision was a strong

indication of the Justices' interest in eventually hearing the case.'

On November 15, 1999, the Sixth Circuit Court of Appeals placed all appeals in abeyance,

pending final disposition of the matter by the trial court.79 On December 20, 1999, the trial court

granted the plaintiffs' motion for summary judgment, holding that the Cleveland Scholarship and

Tutoring Program impermissibly violated the Establishment Clause.so

In Simmons-Harris v. Zelman,s the U. S. District Court for the Northern District of Ohio

ruled that the Cleveland voucher program violated the Establishment Clause of the

Constitution.82 The court stayed the injunction, leaving the Voucher Program in operation

pending the resolution of the defendants' appeal to the Sixth Circuit Court of Appeals.8s3

The District Court agreed with the Ohio Supreme Court that the Cleveland voucher had a

secular purpose and did not promote an excessive entanglement between church and state.

However, the court disagreed with the Ohio Supreme Court by holding that the program "has the

effect of advancing religion through government-supported religious indoctrination"84 and

created an incentive to attend religious schools.






78Linda Greenhouse. White House Asks Justices for a Ruling on Vouchers, New York Times, July 8, 2001,
available at http://nytimes.com/200 1/07/08/politics/08SCOT.html.

79 Zelman, 72 F. Supp. 2d at 841.
so See id. at 834.

si 72 F. Supp. 2d 834 (N.D. Ohio 1999).
82 See id. at 865.

83 See id. The court noted that "because counsel for all Plaintiffs have consented to a stay of this court's Order
pending Sixth Circuit review, this court hereby stays said Order in its entirety pending such review."
84Id. at 864-865.










"any aid provided under Washington's program that ultimately flows to religious institutions

does so only as a result of the genuinely independent and private choices of aid recipients."203I

addition, the program created no financial incentives to choose sectarian education and provided

no greater benefits to those who did elect to pursue a religious education.204 The Washington

program also was similar to footnote thirty-eight of the Nyquist decision because the benefit was

available to students generally because regardless of the sectarian/nonsectarian or

public/nonpublic nature of the schools,205 all students benefited equally under the program.206 No

indication was found that program funds were being used "'to provide desired financial support

for nonpublic, sectarian institutions.'"207 According to the Court, when individuals, as opposed to

government, determine whether and how much money flows to religious institutions, it is no

more constitutionally troubling than when a government employee donates his or her paycheck

(public funds) to a church.208 The Court concluded that a neutral, generally applicable program

of genuine private choice did not constitute an impermissible advancement of religion.209

In Zobrest v. Catalina Foothills School Dis le Im r independent choice was a determining

factor in the Court ruling. Public funding was upheld for a sign language interpreter for a student



203 Witters, at 487. Said the Court in Mueller, "Under Minnesota's arrangement public funds become available only
as a result of numerous private choices of individual parents of school-age children." Mueller v. Allen, 463 U.S. 388,
399 (1983).
204 Id. at 487-88.

205 Witters, 474 U.S. at 487-88.

206 Id.

207 Id. at 488. Justices were quoting Committee for Public Education and Religious Liberty v. Nquist, 413 U.S. 756,
782-83 (1973). Cf. Meek v. Pittenger, 421 U.S. 349, 363-64. (1975).

208 Id. at 486-87.

209 Id. at 489-90.

210 509 U.S. 1 (1993).










choice. From his point of view, the government' s role should be restricted to upholding

minimum standards of approval of educational institutions.14

Voucher proponents argue that low-income parents should have the liberty to choose any

public or private school for their children, with public funding supporting all or a portion of the

costs. The parental right to choose the appropriate educational setting for their children is

meaningless if poor families cannot exercise true private choice because of financial and/or

residential constraints.

According to education historians, the question of whether state interests take precedence

over parental interests has been a fundamental controversy within education policy from the

beginning of public education in America.

Over the long perspective of the last century, ...compulsory school attendance may be seen
as part of significant shifts in the functions of families and the status of children and
youth...Advocates of compulsory schooling often argued that families or at least some
families, like those of the poor and foreign-born were failing to carry out their traditional
functions of moral and vocational training...Much of the drive for compulsory schooling
reflected an animus against parents considered incompetent to train their children. Often
combining fear of social unrest with humanitarian zeal, reformers used the powers of the
state to intervene in families and to create alternative institutions of socialization.l

Public school vouchers involve the question of control. Wro is primarily responsible for

America's children 's future, thelir parents or the state? State compulsory school attendance laws

highlight the fact that education is tremendously important to individuals and to society. The

answer from state courts, which have interpreted their own constitutions and statutes, concludes

that the state is concurrently responsible with parents for providing a basic public education for

children. The state must ensure that children are minimally educated citizens and parents have

the right to direct the education of their children within the bounds of reasonable state control.

14 Id. at 127.

'5 David Tyack. WayI i of Seeing: An Essay on the History of Compulsory Schooling." 46 Hary. Educ. Rev. 355,
363, 1976.










educational services from an 'approved' institution of their own choice. The educational
services could be rendered by private enterprises operated for profit, or by non-profit
institutions of various kinds. The role of government would be limited to assuring that
schools met certain minimum standards such as the inclusion of a minimum common
content in their programs, much as it now inspects restaurants to assure that they maintain
minimum sanitary standards.42

In the 1950s Friedman's free market ideas for education attracted little public policy

interest, but in the 1960s and 1970s liberal reformers would advocate regulated school vouchers

to meet the educational needs of low-income students. 43 In the 1980s and 1990s, conservatives

had a renewed interest in free market goals that emphasized competition as the key to school

improvement:

This voucher plan would give all parents the opportunity to choose schooling for their
children that the more affluent among us now have .. It would promote a rapid
improvement in the quality and diversity of education as competition worked its magic in
schooling, as it has in every other area.4

The third and final maj or educational event focused on federal funding for education as a

result of the Soviet Union' s successful launch of Sputnik I.45 Prior to 1957, education proposals

for general aid for school districts failed in Congress. Following Sputnik, the public became

alarmed that American children seemed to be academically inferior to Russian children, and,

thus public school reform efforts intensified. Congress responded by passing the National

Defense Education Act (NDEA) of 1958,46 which specified funds (categorical) for math, science,


42 Id.

43 See Theodore Sizer, "The Case for a Free Market," Saturday Review, January 11, 1969; Christopher Jencks,
"Giving Parents Money to Pay for Schooling: Education Vouchers," New Republic, July 4, 1970; John E. Coons and
Stephen D. Sugarman, "Family Choice in Education: A Model State System for Vouchers." California Law Review
59:321-438, 1971.

44 Milton Friedman. Bright Promises, Dismal Performance: An Economist's Protest. William R. Allen, Ed. New
York: Harvest/Harcourt Brace Jovanovich, 1983, 171.

45 See Constance McLaughlin Green and Milton Lomask. Vanguard: A History. Washington, DC: Smithsonian
Institution Press, 1 97 1. Available at http://www. hq.nasa. gov/office/pao/History/ sputnik/to c.html.

46 National Defense Act of 1958, 20 U.S.C. 401 et seq., Pub. L. 85-864, Sept. 2, 1958, 72 Stat. 1580.










New Republic, July 4, 1970.


Jennings, John F. (Jack). "Title I: Its Legislative History and Its Promise." Phi Delta
Kappan. Vol. 81, No. 7 (March 2000), p. 516-522.

."An Education Agenda for the Congress and the New Administration" in The Future of
the Federal Role in Elementary & Secondazydd~~~~~ddddd~~~~ Education. Washington, D.C.: Center on
Education Policy, 2001.

Johnson, Lyndon B. "Proposal for a Nationwide War on the Sources of Poverty: Lyndon
B. Johnson' s Special Message to Congress, March 16, 1964." Public Papers of U. S
Presidents, Lyndon B. Johnson, 1963-1964. Washington: G.P.O., 1965, 1, pp. 375-380.
Available at http ://www.fordham.edu/halsall/mod/1 964j ohnson-warpoverty.html

Jorgenson, Lloyd P. "The Birth of a Tradition," Phi Delta Kappan, June 1963, p.41 1.

Just, Richard. "Voucher Nation? Why School Choice Could Demolish National Unity." The
American Prospect Online Edition. Jul 11, 2002. Available at
http:.//www.prospect. org/web/page.ww? section=root&name=ViewWeb&articleld=790
(last visited Jan. 27, 2007).

Kahlenberg, Richard D. "Helping Children Move from Bad Schools to Good Ones." New
York: The Century Foundation, June 2006. Online brief is available at
http ://www.tcf.org/Publications/Education/kahlnego615-06.pdf

Kaestle, Carl F. "The American Religious Experience: Public Education." Encyclopedia
ofAnzerican Social History, Vohenze 3, Ed. Mary Kupiec Cayton, Elliott J. Gorn, and
Peter W. Williams. New York: Scribner, 1993. Available
http://are. as. wvu. edu/scopedu. htm

Klarman, Michael J. From Jint Crow to Civil Rights: The Supreme Court and the Stlnrugglefor
Racial Equality. New York: Oxford University Press, 2004.

Kava, Russ. "Milwaukee Parental Choice Program: Informational Paper 29." Madison, WI:
Wisconsin Legislative Fiscal Bureau, 2005. Available at
http://www.legis. state.wi .us/1fb/Informationalpapers/29.pdf

Kemerer, Frank R. "State Constitutions and School Vouchers." West 's Education Law Reporter
120 (1997): 1-42.

"The Constitutional Dimension of School Vouchers." 3 Tex. Forum on Civil Liberties &
CivilRights, 1998, 137-185.

."The U. S. Supreme Court' s Decision in the Cleveland Voucher Case: Where Do We Go









Arizona Revised Statute ( 43-1089


Cases

Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (Ariz. 1999), cert. denied, 528 U.S. 810
(1999).
California

Statutes

California Constitution Article IX, @ 8


California Constitution Article XVI, @ 5

California Education @ 60044

Cases

California Teachers Association v. Riles,
(Cal. 1981).


176 Cal.Rptr. 300, 29 Cal.3d 794, 632 P.2d 953


Serrano v. Priest, 487 P. 2d 1241 (Cal. 1971).

Serrano v. Priest, 226 Cal.Rptr. 584 (Cal. App. 1986) (Serrano III).

Colorado


Statutes

Colo. Constitution Article IX, @ 7


Colorado Revised Statute j@ 22-56-101, et.seq. (2003).
~22-56-101(2)( c) (2003).
S22-56-103(10)(a)(I) (2003)
S22-5 6- 104(1)(b)(2003)
S22-5 6- 104(2)(a),(b).
S22-5 6- 104(5)(a)(I)-(IV)
~22-56-106 (2003)
~~22-56-106(b) and (c)(2003)

Cases

Craig v. People ex rel. Hazzard, 89 Colo. 139, 148, 299 P. 1064, 1067 (1931).










Additionally, public school vouchers involve the question of control. Who is in charge of

America's children 's future, thelir parents or the state? From the parental viewpoint, two slightly

different arguments exist. One position asserts that the right to raise children is fundamental,

therefore any direction by the state over education is illegitimate. The second states that since

parents are more vested in and familiar with their children's future, they should make

educational decisions.152

State courts, after interpreting state constitution and statutes, find that the state is

concurrently responsible with parents for providing a basic public education to children and

ensuring that children are minimally educated citizens. In Zelman v. Simmons-Harris,153 the U.S.

Supreme Court opinion "strongly emphasized parental freedom of choice."154 From a multitude

of opinions presented in briefs and during oral arguments, the Court found the issue of parental

freedom of choice compelling.

More and more, parents desire the freedom to make choices about the schools their

children attend." Parental rights and educational choice are intertwined with the longstanding

American ideal of liberty. Liberty can be defined as the rights of individuals to make decisions

from among different courses of action.156 Voucher proponents who favor universal vouchers,

argue that parents should have the liberty to choose any public or private school for their

152 Harry Brighouse. School Choice and Social Justice. New York: Oxford University Press, 2000, 28.

153 536 U.S. 639 (2002).

154 CliVe Belfield and Henry Levin. "Does the Supreme Court Ruling on Vouchers in Cleveland Really Matter for
Education Reform?" Teachers College Record, 2002. Available at
http://www. tcrecord. org/PrintContent. asp?ContentlD=10952
1ss Charles Glenn. "Parent Choice and American Values in Public Schools by Choice: Expanding Opportunities for
Parents, Students, and Teachers." In Public Schools by Choice. Joe Nathan, ed. St. Paul, MN: The Institute for
Learning and Teaching, 1988, 45-46.

156 See David H. Monk. Educational Finance: An Economic Approach. New York: McGraw-Hill Publishing
Company, 1990, 16; Louann A. Bierlein. Controversial Issues in EducationalPolicy. Newbury Park, CA: Sage
Publications, 1993, 3.









Secondly, the requirement of genuine secular options appears to reinforce the neutrality

requirement. As long as the decision of private schools to participate in the voucher program and

the decision of the parents to enroll their children in religious schools cannot be attributed to any

government action, the actual choices made by parents and the involvement, or lack of

involvement, of particular schools has no bearing on the constitutionality of the program. A

different analysis would apply if the preponderance of religious schools participating in the

program or the percentage of children enrolled in religious schools could be traced to

government action promoting religious school involvement or skewing parental decisions toward

the enrollment of their children in religious schools.

Finally, the question as to whether the state "is coercing parents into sending their children

to religious schools," the Court said, "must be answered by evaluating all options Ohio provides

Cleveland schoolchildren."l7 The Cleveland program was part of a much wider program of

multiple educational options, community and magnet schools and after-school tutoring which

offered parents a real choice between religious and nonreligious schools (perhaps even providing

incentives for nonreligious education). When the community and magnet schools were counted

as relevant options, the percentage of children who chose religious schools was less than 20

percent.179 The Court maj ority places the burden of proof on those challenging the genuineness

of the options. They found "no evidence that the program fails to provide [secular]

opportunities."'so

The Court concluded that vouchers did not lend "official" endorsement to any religion or

religious message by leaving the school choice decision to parents rather than government. The

'7s Id. at 2469 (emphasis in original).
179 Id. at 2471.

1sold. at 2469 (O'Connor, J., concurring).










This chapter examined literature linking school vouchers with the continuing struggle to

improve education for all students, especially children in urban public schools.' It provides an

historical perspective of the federal government' s efforts to promote various school policies and

ideologies that have led, in part, to the increased interest in school vouchers as a public policy

tool. Additionally, this chapter reviewed the political rhetoric related to school vouchers and

identifies the positions of various stakeholders.

Throughout history, the federal government has emphasized various national goals (i.e.,

educational equal opportunity, equity, excellence, or accountability) as national events and

moods changed. In the decades since economist Milton Friedman first proposed school vouchers

in the 1950s,6 the pro-voucher movement has become a diverse group: Christian conservatives

who support church-affiliated schools, free market proponents who believe competition will

force public schools to improvement, and inner-city minority parents frustrated with the public

schools in their neighborhoods. The stakeholders opposed to school vouchers have consistently

been groups of public school advocates:' the American Civil Liberties Union,s the National

Association for the Advancement of Colored People,9 and the League of Women Voters.10



SCircumstances in small rural school districts have not been conducive for school choice movement.

6 Milton Friedman. "The Role of Government in Education." In Economics and the Public Interest. Robert A.
Solow, ed. New Brunswick, N.J.: Rutgers University Press, 1955, 123-144.

SSee National Education Association (NEA) arguments against school vouchers available at
http://www.nea.org/vouchers/index.html; American Federation of Teachers (AFT) position on school vouchers
available at http://www.aft.org/topics/vouchers/index~hm Parent Teacher Association (PTA) opposes school
vouchers available at http://www.pta.org/ia_pta_positions_1 118872244156.html

SSee American Civil Liberties Union arguments against school vouchers available at
http ://www.aclu.org/ReligiousLiberty/Religiousierycfm?ID=7272&c=140
9 See National Association for the Advancement of Colored People (NAACP) arguments against school vouchers
available at http://www.naacp.org/inc/docs/education/edcto~eouin~d

'0 See League of Women Voter arguments against school vouchers available at
http://www.1wy.org/AM/Template.cfm?SectionHm~epae/MHM~slycmCnetD 1798










not constitute an establishment of religion. Justice Rehnquist while concurring with Justice

White in M~ueller v. Allell25 remarked,

It is easy enough to quote the few words constituting that Clause '...Congress shall make
no law respecting an establishment of religion.' It is not at all easy, however, to apply this
court' s various decisions construing the Clause to governmental programs of financial
assistance to sectarian schools and the parents of children attending those schools. Indeed,
in many of these decisions we have expressly or implicitly acknowledged that 'we can
only dimly perceive the lines of demarcation in this extraordinarily sensitive area of
constitutional law.'26

Strict Separation

According to the theory of strict separation, the Establishment Clause disallows any

involvement by the state in religion: .. [t]he framers of the establishment clause meant to make

explicit a point on which the entire nation agreed: the United States had no power to legislate on

the subj ect of religion."2 Separationists point to founding father James Madison, author of the

Establishment Clause, who advocated a complete denial of state support for any type of religious

activity.28 Separationists contend that the Establishment Clause erects a "wall of separation

between Church and State"29 that does not allow any public funds to benefit a religious

organization. Consequently, according to separationists school voucher programs that provide

money to private, religious schools are unconstitutional.







2103 S.Ct. 3062 (1983).
26Afueller at 3062.

27Leonard Levy. The Establishment Clause: Religion and the First amendment. (2d ed.) Chapel Hill, N.C.: North
Carolina Press, 1994, 111.
28Id. at 122.

29 It is important to note that the phrase "separation of Church and State" does not appear in the United States
Constitution. Rather, it was first utilized by Thomas Jefferson in a letter to the Danbury Baptist Association in 1802.
See id. at 246










The Everson decision was the initial determination by the Court to define the permissible

interaction between religion and public schools under the Establishment Clause." The Court

attempted to reconcile the tension between the Establishment Clause, which had historically been

interpreted as allowing "no aid" to religious institutions'" and the Free Exercise Clause,59 which

prohibits discrimination based on religious beliefs.60 The Everson court established a "non-

discrimination" theory, whereas government may not advance or inhibit religion, thereby

replacing the view that the Establishment Clause permits no aid of any kind to religious

institutions.61 The precedent established that acceptable government aid to religious schools was

possible in situations where activities other than direct religious education were funded.

In Board of Education of Central School District v. Allen62 the U. S. Supreme Court re-

addressed the constitutional question of "apportioning state funds to school districts for the

purchase of textbooks to be lent to parochial students"63 which originally had been addressed in

Cochran. 64 A New York State statute required local public school authorities to lend textbooks

free of charge to public and private school students in grades seven through twelve. Appellant

Board of Education of Central School District No. 1 in Rensselaer and Columbia Counties





57U. S. Const. amend. I ("Congress shall make no law respecting an establishment of religion...")

58See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279
(2001) (discussing the evolution of the modern Establishment Clause)

59 U. S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof....").

61) Everson, 330 U.S. at 16.
61 Id. at 18.

62 392 U.S. 236 (1968).
63 Id. at 240.

64 281 U.S. 270 (1930)










theory was predicated, Justice Jackson wrote, "... [i]t is of no importance in this situation whether

the beneficiary of this expenditure of tax-raised funds is primarily the parochial school and

incidentally the pupil, or whether the aid is directly bestowed on the pupil with indirect benefits

to the school."54

Justice Wiley Rutledge wrote in his dissent that the Cochran decision had opened the way

for the maj ority' s Everson decision and warned that these two decisions would create a rationale

for future decisions: .. [t]hus with time the most solid freedom steadily gives way before

continuing corrosive decision."

The Court ruled for the state, but Justice Black's opinion acknowledged Madison and

Jefferson' s philosophy of the need of a strong wall of separation of church and state. In addition,

Black's opinion provided a framework of fundamental legal issues that aid was secular in

purpose (to provide safe transportation for all students), that aid was indirect (it was not paid

directly to a religious institution), that beneficiaries of the aid were children (not churches), and

that the state was "neutral in its relations with groups of religious believers and non-believers"

(all schoolchildren were eligible for aid). These themes foreshadowed the legal standard the

Court eventually crafted.56 Finally, Everson illustrated the divisiveness and complexity of

establishment cases. The maj ority and the dissenters of the Everson opinion all agreed with a

strict separation of church and state and yet came to different conclusions. This has set the

pattern for future establishment cases.





54 Id.

55Id.at 29.

56 Lee Epstein & Thomas G. Walker. Religion: Exercise and Establishment in Constitutional Law for a Changing
America: A Short Course, 2nd. Ed. Washington, D.C.: CQ Press, 2000, 379










challenged the allocation of state funds for students attending private, religious schools as

uncon stituti onal .

After conceding, "the line between state neutrality to religion and state support of religion

is not easy to locate,"65 the Court held that the statute was not in violation of the Constitution.

Justice Byron R. White, writing for a six-person maj ority, utilized the "purpose"66 prong from

School District ofAbington Township v. Schemmp67 to reach an accommodationist outcome.

The express purpose was stated by the New York legislature to be furtherance of the
educational opportunities available to the young. Appellants have shown us nothing about
the necessary effects of the statute that is contrary to this stated purpose. The law merely
makes available to all children the benefits of a general program to lend school books free
of charge. Perhaps free books make it more likely that some children choose to attend a
sectarian school, but that was true of the state-paid bus fare in Everson and does not alone
demonstrate an unconstitutional degree of support for a religious institution.68

Justice Hugo Black who wrote the maj ority opinion in Everson was one of three dissenting

justices (William O. Douglas and Abe Fortas) in this case. He maintained:

It requires no prophet to foresee that on the argument used to support this law others could
be upheld providing for state or federal government funds...I still subscribe to the belief
that tax-raised funds cannot constitutionally be used to support religious schools, buy their
school books, erect their buildings, pay their teachers, or pay any other of their
maintenance expenses, even to the extent of one penny. The First Amendment' s
prohibition against governmental establishment of religion was written on the assumption
that state aid to religion and religious schools generates discord, disharmony, hatred, and
strife among our people, and that any government that supplies such aids is to that extent a
tyranny. And I still believe that the only way to protect minority religious groups from
maj ority groups in this country is to keep the wall of separation between church and state
high and impregnable as the First and Fourteenth Amendments provide. The Court's
affirmance here bodes nothing but evil to religious peace in this country...69



65 392 U.S. at 242

66 Id. at To pass constitutional muster an enactment must have a secular legislative purpose and a primary effect
that neither advances nor inhibits religion.

67 374 U.S. 203, 83 S.Ct. 1560. (1963).

68 Alien at
69 Id. at 253










that was secular might be subverted to religious use and whether the amount of aid was

sufficiently "massive" to call it "direct" rather than "indirect." The secular content of government

aid was no longer sufficient to guarantee its constitutionality. The Court found that the

educational function could not be separated from the religious mission of the sectarian schools,

and therefore aid to the educational function necessarily resulted in the impermissible

endorsement of religion.156

In Committee for Public Education and Religious Liberty ("PEARL")~ v. Regan2,1 the New

York Legislature enacted a new statute directing payment to nonpublic schools for the costs

incurred for compliance with specific state-mandated requirements. These requirements included

testing (pupil evaluation, achievement, and scholarship and college qualification tests), reporting,

and record keeping. Unlike the earlier version, this statute provided a means by which state funds

were to be audited, thus ensuring that only actual costs of providing covered secular services

were reimbursed out of state funds. The Court held that the statute did not violate the

Establishment Clause.

In GrandRapids v. Ball," the local school district operated the two programs "Shared

Time" and "Community Education Programs" in nonpublic schools. These programs provided

classes for nonpublic students at public expense in classrooms located in and leased from the

nonpublic schools.159 "Shared Time" classes were offered during the regular school day and

supplemented the core curriculum.160 "Community Education" classes were voluntary and


156 See supra Parts I.A.4.

'57 444 U.S. 646 (1980).

'5s 473 U.S. 373 (1985), overruled byi. Aorne, v. Felton, 521 U.S. 203 (1997).
159 Id. at 375.
161) Id. at 375-76.









Berliner, David and Benj amin J. Biddle. The Manufactured Crisis: M~yths, Fraud, and the
Attack on Anzerica 's Public Schools. Reading, MA: Addison-Wesley, 1995.

Berne, Robert and Leanna Stiefek, "Concepts of School Finance Equity: 1970 to the
Present" in National Research Council, Equity and Adequacy in Education Finance 7-24
(1999).

Bierlein, Louann A. Controversial Issues in Educational Policy. Newbury Park, CA:
Sage Publications, 1993.

Biskupic, Joan, and Tamara Henry. "Church, State Wall Is Lowered in Schools." USA
Today (June 28, 2002).

Black, Henry Campbell. Black 's Law Dictionaly, 8th ed. St. Paul, MN: West Pub. Co., 2004.

The Bhtebook: A hunforns System of Citation. (17th ed. Cambridge, MA: Harvard Law Review
Association, 2000.

Bolick, Clint. "High Court Hands Vouchers a Victory." Washington, DC: CATO Institute,
August 10, 2002. Available at
http://www.cato. org/current/school -choice/pub s/bolick-020627 .html

Borman, Geoffrey D., Robert E. Slavin, Alan Cheung, Anne Chamberlain, Nancy Madden, and
Bette Chambers. "The National Randomized Field Trial of Success for All: Second-Year
Outcomes." American Educational Research Journal 42 (4), 673-696. (April, 2005).
Avail able at http://www. success sforall. org/_images/pdfs/SFA REYear2_Outcomes .doc

Bracey, Gerald, "Are U.S. Students Behind?" American Prospect, vol. 37 (March-April
1998).

Brandl, J.E., "Governance and educational quality." In Learning f~on School Choice,
Washington, DC: Brookings Institution Press, 1998, 55-81.

Brighouse, Harry. School Choice and Social Justice. New York: Oxford University Press,
2000.

Brouillette, Matthew J., The Case for Choice in Schooling: Restoring Parental Control of
Education; Midland, MI.: Mackinac Center for Public Policy, 2001.

Burtless, Gary, ed. Does Money Matter? The Effect of School Resources on Student
Achievement and Adult Success. Washington, DC: Brookings Institution Press, 1996.

Capell, F. J. and L. Dosher, A Study of Alternatives in American Education: Vol. y7,
Student Outcomes at Ahtn Rock 1974-1976. Santa Monica, CA: RAND, 198 1.

Carpenter, Dick M. III. "Ronald Reagan and the Redefinition of the 'Education









ACKNOWLEDGMENTS

I thank all the people who have contributed suggestions, constructive criticism, and

encouragement in the development of this dissertation. First, I also thank my advisor, Dr. R.

Craig Wood for all his guidance, encouragement, support, and patience. His sincere interest in

public school law has been a great inspiration to me. Also, I would like to thank my committee

members Dr. James L. Doud, Dr. David S. Honeyman, and Dr. Lynn Leverty for their very

helpful insights, comments and suggestions. It has been a great pleasure working with the

faculty, staff, and students at the University of Florida during my tenure as a doctoral student.

Additionally, I owe a debt of gratitude to my family: particularly to my understanding and

patient husband, Tom, who has supported me through these many years of research, and our

children, Sean, Gina, Ryan, Kyle, and Rose. Their unwavering love, support, and encouragement

sustained me through this long academic journey. I must also thank my loving parents for

inspiring my love of learning.

Finally, a special thank-you goes to my circle of friends, Karen Morehouse, Merrille

Koffler, Judy Johnson, Jackie Sullivan, and Michelle Clopton, who provided invaluable support

and suggestions throughout this process. Your friendship has been a constant source of support

for me and I cannot imagine that this dissertation would have been completed without your

encouragement.









vouchers as educational policy is the responsibility of the state legislature and state supreme

courts. Recommendations for further study based on the research were also made.










private tutors existed. All schools were viewed as serving the public interest with no real

differentiation between public and private schools. 1 All schools were eligible for local public

funding. During colonial times "education emphasized parental responsibility and a limited

government role."16

The Emergence of Government Schools

In the mid to late 1800s, America was inundated with large numbers of southern and

eastern European immigrants. Simultaneously, the nation was transitioning from an agrarian to

an industrial economy. An immediate need existed to educate and train immigrants to work in

newly built factories. Public schools became the popular solution to these societal needs. Schools

initiated "Americanization" programs in which the language and customs were taught. 1

Common school reformers (i.e., Horace Mann of Massachusetts, Henry Barnard of Connecticut,

and Samuel Lewis of Ohio) emphasized the need for schools to teach republican virtues. Hard

work, morality, and education for democratic citizenship were implemented through a non-

denominational Protestant curriculum. Reformers in many states argued for increased state aid to

local schools, establishment of a statewide professional education bureaucracy, licensing

examinations, increased teacher pay, increased school terms, and the establishment of property

taxation for school support.'






's Rockne McCarthy, Donald Oppewal, Walfred Peterson, and Gordon Spykam. Society, State and Schools: A Case
for Structural Pluralism. Grand Rapids, MI.: William B. Eerdmans Publishing Co., 1981, 80.
16 Carl F. Kaestle. "The American Religious Experience: Public Education." In Encyclopedia ofAmerican Social
History, Volume 3. Mary Kupiec Cayton, Elliott J. Gorn, and Peter W. Williams, eds. New York, New York:
Scribner, 1993. Available at http://are.as.wvu.edu/scopedu.htm

17 Joel Spring. American Education, Ninth Edition. New York: McGraw Hill, 2000.

1s Carl F. Kaestle, supra notel5.









BIOGRAPHICAL SKETCH

Kathleen Guzman Sciortino, who prefers to be called Kathy, was born and raised in

Indiana. She graduated from Indiana University with a Bachelor of Arts in psychology. Next

Kathy received her master' s degree in blind rehabilitation teaching from Western Michigan

University. After moving to central Florida, she worked in Orange, Seminole, and Osceola

school districts at the school level and at the district level. Along the way Kathy received her

Education Specialist degree from the University of Florida. She is married to Tom, with five

children and two grandsons.










GLOSSARY OF LEGAL TERMS


Accomm odati oni st


Not a legal term, but a descriptor in legal literature referring
generally to those interpreting the Establishment Clause as
allowing some interactions between government and religion,
or even non-preferential government aid to religion. In
Establishment Clause jurisprudence, it is the opposite of the
separationist position.

To declare a judgment or decree of a lower court to be valid
and correct.

Latin meaning "friend of the court." A third party, not directly
is a involved in a suit, who files a brief with the court which
provides information and arguments relevant to a particular
case.

The method of review of inferior court proceedings by a
superior court requested by the losing party in the inferior
court.

A court possessing the authority to review, and sustain or
Reverse decisions of a lower court. The U. S. Supreme Court is
an appellate court.

The title given to judges of an appellate court excluding the
chief justice.

A written statement setting out the legal contentions of a party
in litigation, esp. on appeal; a document prepared by counsel as
the basis for arguing a case, consisting of legal and factual
arguments and the authorities in support of them.

The law as handed down in written judicial opinions.

An order from a superior to an inferior court to send the entire
record of a case to the superior court for review. A Writ of
Certiorari is issued by the U. S. Supreme Court when four of
the nine justices agree to hear a case.

The title given to the judge who is the chief administrative
officer of an appellate court.

U. S. Supreme Court put forward the doctrine in Cochran v.
Louisiana State Board ofEducation.l The Court reasoned that


Affirm


Amicus curiae


Appeal


Appellate court



Associate justice


Brief




Case law

Certiorari




Chief Justice


Child benefit doctrine


S281 U.S. 270 (1930).









federal Establishment Clause.153 In 2001, the State of Ohio requested that the U. S. Supreme

Court review the case. The Bush administration via the Attorney General filed an amicus brief

supporting the request.

On September 25, 2001 the U. S. Supreme Court agreed to hear the Zelman v. Simmons-

Harris case.154 The Court accepted three petitions for review but consolidated them into a single

case." The Cleveland voucher program, which enrolls approximately 3,700 students from

kindergarten through eighth grade, continued to operate pending the appeal process. On June 27,

2002, the U. S. Supreme Court held that the Ohio Pilot Proj ect Scholarship Program does not

violate the Establishment Clause.

Tuition Tax Credits/Deductions

Education tax credits/deduction are policy instruments that use the tax system to support

school choice. In general, tax credit programs either allow families to receive a direct tax

deduction for private school tuition or allow individuals and/or corporations to receive a tax

deduction for contributions to private scholarship organizations that in turn subsidize all or part

of a student' s private school tuition.

Educational tax credits are a direct reduction in tax liability for educational expenditures.

The amount of the credit and which educational expenses qualify is determined by the state

legislature. Tax deductions allow for certain educational expenses to be deducted from taxable

income prior to the calculation of tax liability.






153 Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000).

154 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
I ss Id.









The legal principle or principles which may be derived from
the opinion (decision) of the court; opposite of dictum.

A court order that either prohibits (restrains) or compels
(enj oins) a party from continuing a particular activity.

A formal decision made by a court following a lawsuit.

The power of a court to examine legislative enactments and
acts of executive officials for constitutionality or for the
violation of basic principles of justice.

Refers to the intentions of legislators when enacting a law.
Usually involves a reading and interpreting by a court of the
legislative history of a statute.

The three-prong test established by the Supreme Court in
Lemon v. Kurtznzan s for determining what are permissible and
impermissible governmental actions under the Establishment
Clause of the First Amendment. For an action not to violate the
Establishment Clause it must have a secular purpose, a neutral
effect (i.e., neither advance or inhibit religion), and it must not
create an excessive entanglement between church and state.

An alternative to the Lemon test for deciding Establishment
Clause cases endorsed by Chief Justice Rehnquist. The non-
preferentialist position is that the Establishment Clause only
prohibits the government from establishing a state church, or
showing preference between religions.

A written statement by a judge or court announcing a decision
in a case and usually details the court's reasoning. A majority
opinion establishes new legal precedent, or supersedes or
reverses existing precedent. It is typically written by one judge
and represents the principles of law which a maj ority of the
judges on the court deem operative in a given decision. A
dissenting opinion is an opinion of one or more judges in an
appellate court expressing disagreement with the maj ority
opinion. By definition, a dissent is the minority of the court. A
concurring opinion is a separate opinion delivered by one or
more judges who agree with the decision of the maj ority of the
court but offering own reasons for reaching that decision. A
plurality opinion is one in which no single opinion received the
support of a maj ority of the court, but received more support
than any other opinion.


Holding


Inj uncti on


Judgment


Judicial review



Legislative intent



Lemon test








Non-preferentialist test





Opinion


S403 U.S. 602 (1971).









instruction on the premises of religious schools by public school teachers was not in violation of

the Establishment Clause, since the benefits were provided without regard to the sectarian-

nonsectarian, or public-private, nature of the institutions. In M~itchell v. Helms,35 the

constitutionality of a program providing aid to both public and religious schools in the form of

educational equipment, including books and computers, was upheld by the Court. These

decisions expanded the definition of permissible government aid for religious schools under the

Establishment Clause. Additionally, these decisions paved the way for the continuing shift that

culminated in Zelman. Currently, the primary requirements are that the public aid itself be

secular in nature, that it be distributed on a religiously neutral basis, that it not subsidize religious

indoctrination, and that it not lead to excessive entanglement.36

Indirect Aid to Religious Schools

Prior to Zelman, the significant distinguishing elements of indirect assistance programs

held constitutional under the Establishment Clause have been that the purpose of the programs

was not to provide aid to religious schools, that the initial recipients of the vouchers or other

benefits were selected on a religiously neutral basis, and that a genuine choice for families

existed as to the use of vouchers or other assistance at religious or secular schools. The Court has

held unconstitutional government aid programs that selected initial beneficiaries on the basis of a

religious criterion (i.e., enrollment in private, religious schools). In addition, if the universe of

choices available to the beneficiaries was dominated by religious schools (primary effect of

advancing religion), this, too, was found unconstitutional. Only if initial beneficiaries of a

government aid program included public and private students, and if eligible families had a



35120 S. Ct. 2530 (2000).
36j ..*Unle, v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000).










Therefore, school vouchers could be utilized exclusively for personal gain or used to achieve

equality of educational opportunity and equity.37 It is, however, important to recognize that the

Brown decision, while not only initiating ultraistic educational reforms, encouraged some

families to take advantage of school vouchers as a way to support segregation in certain areas of

the country. School vouchers were used primarily in southern states to avoid having children

attend integrated public schools. "White flight" academies flourished when parents supported

freedom of choice programs.38 Parents withdrew their children from the public schools to enroll

them in private schools, which were funded by publicly funded youchers.39

In 1955, the second educational event was initiated by economist Milton Friedman. He

proposed a free market approach to education that would implement publicly funded school

youchers.40 Friedman questioned the role of government in education and whether there ought to

be government schools. He believed public schools are "an indiscriminate extension of

governmental responsibility."41 In Friedman's proposed plan:

Governments would require a minimum level of education which they could finance by
giving parents vouchers redeemable for a specified maximum sum per child per year...
Parents would then be free to spend this sum and any additional sum on purchasing


37See F. J. Capell and L. Dosher. 4 Study of alternatives in 4merican Education: Vol. VI, Student Outcomes at
41uin Rock 1974-76. Santa Monica, CA: RAND, 1981.

38Peter W. Cookson, Jr. and Sonali M. Shroff. "School Choice and Urban School Reform." Columbia University,
Teachers College, ERIC Clearinghouse on Urban Education Institute for Urban and Minority Education, Urban
Diversity Series No. 110, December 1997, 7.

39 See Green v. County School Board of ... n- Kent County, V4 et al, 391 U.S. 430 (1968) and Griffn v. County
School Board ofPrince Echrard County, 377 U.S. 218, 222 (1964). In 1959 the General Assembly abandoned
"massive resistance" to desegregation and concentrated on a "freedom of choice" program (Acts, 1959 Ex. Sess.,
c.53.) and repealed Virginia's compulsory attendance laws (Va. Code ##22-251 to 22-275.). The Board of
Supervisors for Prince Edward County refused to appropriate any funds for the County School Board, effectively
closing the public schools rather than integrate them. Prince Edward County schools remained closed for five years
from 1959-1964.

"0 Milton Friedman. "The Role of Government in Education." In Economics and the Public Interest. Robert A.
Solow, ed. New Brunswick, N.J.: Rutgers University Press, 1955, 123-144.

41 Id.










discouraged nonreligious schools from participating.92 Therefore, Cleveland families had no

"meaningful public school choice."93

Judge Ryan dissented, finding the New York statute at issue in Nyquist to be "totally

different" from the Ohio statute.94 He noted the purpose of the New York statute was to help

private schools financially, whereas the purpose of the Ohio Program was to help poverty-level

students.95 Judge Ryan also noted the U. S. Supreme Court' s post-Nyquist decisions had

undermined Nyquist' s controlling implications as applied to Ohio' s genuine private choice

program. 9

Thus, one interpretation of the Cleveland voucher program was deemed constitutional in

the state court but found unconstitutional in the federal courts. In December 2000, the state of

Ohio filed a petition for rehearing and suggestion for rehearing en banc. The Court of Appeals

denied the petition in February 2001.97 The court, in March 2001, issued a stay of mandate

pending the filing of any petitions for certiorari, which the State Petitioners filed for on May 23,

2001.

In June 2001, in furtherance of administrative policy, Solicitor General Theodore Olson

requested the U. S. Supreme Court to hear three appeals98 COncerned with the constitutionality of





92 Id. at 959.

93 Id. at 960.

94 Id. at 963.

95 Id. at 965.

96 Id. at 973.

97 State Pet. App. at 166a-67a.

98 Zelman v. Simmons-Harris, Hanna Perkins School v. Simmons-Harris, and Taylor v. Simmons-Harris










and language initiatives for public and private schools.47 Since that event the federal government

has taken a continuous role in the never-ending era of school reform.

High Expectations of the 1960s and the 1970s

Constitutional issues raised in Brown v. Board of Education48 and social welfare concerns

were the foundation on which all federal efforts to help educate disadvantaged children was built

in the 1960s and the 1970s. Policymakers had confidence that the nation could win the "War on

Poverty," 49 and the result would eliminate, or severely reduce, racial, economic, and educational

disadvantages. The idea that the "cycle of poverty" could be broken was widely accepted. It was

also expected that with assistance, the poor would move into the middle class.so

President Lyndon Johnson envisioned public schools as the remedy for socioeconomic

inequality and initiated compensatory programs such as Head Start,s1 Title I of the Elementary

and Secondary Education Act of 1965,52 and Upward Bound.53 His pursuit of"A Great







47 See James Sundquist. Politics and Policy: The Eisenhower, Kennedy and Johnson Years. Washington, D.C.: The
Brookings Institution, 1968, 206. He stated that the NDEA "has shown that special-purpose aid, carefully designed,
could be enacted at a time when general-purpose aid could not be."

48 347 U.S. 483, 74 S. Ct. 686 (1954).

49 Lyndon B. Johnson. "Proposal for a Nationwide War on the Sources of Poverty: Lyndon B. Johnson' s Special
Message to Congress, March 16, 1964." Public Papers of U. S. Presidents, Lyndon B. Johnson, 1963-1964.
Washington: G.P.O., 1965, 1, pp. 375-380. Available at hopll w\ \\ \\ fordham.edu/halsall/mod/1 964johnson-
warpoverty.html.

so See John F. (Jack) Jennings. "Title I: Its Legislative History and Its Promise." Phi Delta Kappan. Vol. 81, No. 7
(March 2000), 516-522.

st Economic Opportunity Act of 1964, 42 U. S.C. 2701 et seq., Pub. L. 88-452, Aug. 20, 1964, 78 Stat. 508, created a
number of anti-poverty programs including Head Start program.

52 Title I of the Elementary and Secondary Education of 1965, 20 U.S.C. 2701 et seq.

53 Economic Opportunity Act of 1964, 42 U. S.C. 2701 et seq., Pub. L. 88-452, Aug. 20, 1964, 78 Stat. 508, created a
number of anti-poverty programs including Upward Bound. This program was designed to help economically
disadvantaged students complete high school and to enter and succeed in postsecondary education.










Bill 564 that included additional money for the EITC. 174 In 2005, House Bill 628 established a

statewide cap of $44 million in tax credits permitted in a fiscal year ($29.3 million for donations

to school tuition organizations to fund nonpublic schools and $14.7 million for educational

improvement organizations and programs for public schools). 175

In June 2006, the newest tax credit law was passed by the Rhode Island General Assembly

and signed into law by Governor Donald Carcieri.176 The Tax Credits for Contributions to

Scholarship Organizations takes effect as of January 1, 2007. Rhode Island businesses may make

donations to scholarship organizations that provide low-income students tuition assistance grants

to attend qualified nonpublic schools. The business tax credit is not to exceed $100,000 in any

tax year. The total amount of credits the state allows is capped at $1 million.' Each scholarship

organization must be a nonprofit and must allocate at least 90 percent of its annual revenue to

scholarships. The business donor may not designate the scholarship to a specific student or

school. The bill does not prescribe the amount of the scholarship but does require the scholarship

organization to report to the state the number of scholarships distributed per school, the dollar

range of scholarships, and a description of all criteria used by the organization in determining to

whom scholarships were awarded."








'74 24 P.S. # 20-2001 (A).

'75 24 P.S. # 20-2003 (A) (1).

176 H7120A Article 24 Sub A as amended (# 44-62-1). Available at
http:.//www.rilin. state.ri.us/B illText/B illText06/HouseText06/Article -024 -SUB -A-as-amended.pdf
177 Id.

1 Id.










the instructors in both cases are told that they are public school employees under the sole control

of the public school system."'

The maj or difference between the two programs was that the New York City program

provided a system of monitoring whereby administrative personnel would visit program classes

unannounced.176 The purpose of this monitoring program was to avoid Establishment Clause

problems by ensuring that program teachers were not including religion in their classes. 1 This

plan developed by the city of New York to monitor public school teachers teaching at the

parochial schools failed the third prong of the Lemon test. The Court concluded that this

supervisory system created an excessive entanglement with religion. 7

Although the Court acknowledged the secular intent of the New York statute, it is

significant to note that the Court found potential for religious advancement and entanglement

making it unconstitutional. The Court was hesitant to permit public school teachers into religious

classrooms for fear that they may engage in direct or indirect religious instruction.

Transition to Government Neutrality

As the 1970s ended, for the most part the strict separationist attitude of the U. S. Supreme

Court also ended. During the 1980s the U. S. Supreme Court' s philosophy became more

conservative and the justices began to change in favor of a neutrality approach to the resolution

of Establishment Clause issues. In M~ueller v. Allelll79 the Court upheld a Minnesota income tax



1 Id.

1 6 Id. at 406-07, 409.

' Id. at 409.

1 Id.

1 9 463 U.S. 388 (1983).










to adopt control and accountability measures to ensure that the state's obligation to educate is

satisfied.

In the 1999-2000 school year, 143 students out of approximately 900 eligible students

chose vouchers.99 Fifty-eight enrolled in participating private schools and eighty-Hyve enrolled in

other higher-performing public schools. Of the Hyve participating private schools in the 1999-

2000 school year, four were religious and one was secular.100

In 1999, shortly after legislation was enacted school voucher opponents claimed the OSP

violated the Establishment Clause of the First Amendment to the U. S. Constitution, as well as

three provisions of the Florida Constitution.101 While the litigation was preceding opponents

withdrew the First Amendment claim.102 The first count, also referred to as the "No-Aid

Provision," declared that the OSP violated Article 1, Section 3 of the Florida Constitution that

states that"...no revenue of the state or any political subdivision or agency thereof shall ever be

taken from the public treasury directly or indirectly in aid of any church, sect, or religious

denomination or in aid of any sectarian institution." The second count, also referred to as the

"Uniformity Clause," asserted that the OSP violated Article IX, Section 1 of the Florida

Constitution which requires Florida to adequately provide for "a uniform, efficient, safe, secure

and high quality system of free public schools that allows students to obtain a high quality





99 Diana M. Pietrowiak and Daniel C. Jacobsen. "School Vouchers: Publicly Funded Programs in Cleveland and
Milwaukee." Washington, D.C.: United States General Accounting Office, 2001. Available at
http://www.gao.gov/new.items/d0 1914.pdf (last visited July 9, 2007).
1 oo Id.

10' The following groups filed suit: People For the American War Foundation, National Education Association
(NEA), American Jewish Congress, and other organizations.
102 This claim was dismissed after the U. S. Supreme Court ruled in Zebnan v. Sinunons-Harris, 536 U.S. 639 (2002)
that a similar voucher program (Cleveland Scholarship and Tutoring Program) did not violate the U. S. Constitution.










Excellence Act of 1999" which would have permitted families to place $2,000 a year in accounts

which would earn tax free interest. 140 The money could be used to cover educational expenses

including private school tuition, after-school tutoring, uniforms and computers.

Current Educational Trends

With the election of George W. Bush, the trend of privatization in government has been

renewed and become the acceptable norm in many areas of public policy. Many different

government programs utilize vouchers to provide social services. Typically, the funding trail for

these voucher programs runs from a federal agency to a state and/or local agency. Many voucher

programs permit faith-based organizations to participate, but these faith-based service providers

may not use government funds for religious worship, instruction, or proselytization.14 eua

alternatives must exist for voucher recipients who do not want services from faith-based

organizations. Examples of federal programs that permit the use of vouchers include: Temporary

Assistance for Needy Families (TANF) which replaced Aid to Families with Dependent Children

(AFDC), funded by the U. S. Department of Health and Human Services and administered by

state and local human services agencies;14 child care subsidies funded by the Child Care and

Development Block Grant (CCDBG) through the U. S. Department of Health and Human

Services and administered by state and local human services agencies which provides child care

subsidies for low-income working families, families receiving public assistance, and those





140 See Joint Committee on Taxation, Description ofH.R. 7 (The "Education Savings and School Excellence Act of
1999"). (JCX-30-00), March 21, 2000. Available at http://www.house.gov/jct/x-30-00.pdf

141 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. 1305 et seq. Pub. L.
104-193, Aug. 22, 1996, 110 Stat. 2105. Available at http://wdr.doleta.gov/readroom/legislatio/d10-9.f

142 The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 created Temporary Assistance for
Needy Families (TANF), 42 U.S.C. # 601 et seq. Pub. L. 104-193 a welfare reform program which utilizes a variety
of voucher programs including child care subsidies and substance abuse treatment.










cannot afford private school tuition.' The Pierce decision was an extension of the M~eyer v.

Nebra~ska6 ling that held that states' compelling interest in education may not interfere with the

power of parents to direct their children's education.' Parents have a constitutional guarantee to

determine placement of their children in either public or nonpublic schools. In affirming a lower

court decision the Court concluded:

Under the doctrine of2~eyer v. Nebra~ska, we think it entirely plain that the Act of 1922
unreasonably interferes with the liberty of parents and guardians to direct the upbringing
and education of children under their control. The fundamental theory of liberty upon
which all governments in this Union repose excludes any general power of the state to
standardize its children by forcing them to accept instruction from public teachers only.
The child is not the mere creature of the state; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and prepare him for additional
obligations.

In 1930 the U. S. Supreme Court in Cochran v. Louisiana State Board ofEducation9 ruled

on the issue of indirect aid to parochial school students. In 1930 the Court upheld a 1928

Louisiana statute providing "school books for school children free of cost" to all children in the

state, including children attending private schools.' Cochran protested under the Fourteenth

Amendment claiming his property was taxed for private education and that was taxation without

due process.ll

The state claimed the legislation provided aid to children, not to religious schools. "The

schools obtain nothing from them, nor are they relieved of a single obligation because of them.

5 See Ira Bloom. "The New Parental Rights Challenge to School Control: Has the Supreme Court Mandated School
Choice?" 32 J.L. &~ Educ. 139, 169 (2003).

6 262 U.S. 390 (1923).
SId. at 400.

SPierce, 268 U.S. at 535.

9 281 U.S. 270 (1930).
Iod. at. 374

" Id. at 374










scope of this dissertation to explore the effectiveness of school voucher programs or their

implications in terms of school finance.

The Delimitations

The delimitation of the study was that in researching existing publicly funded school

voucher legislation, no attempt was made to examine pending publicly funded school voucher

legislation. Additionally, no attempt was made to examine privately funded voucher programs

because they function outside the public policy arena and do not use tax dollars or require direct

involvement of federal, state, and local policymakers.

Organization of the Study

The opening chapter introduced school vouchers as an educational policy and presented an

overview of existing public school voucher plans in the United States. It presented the

organization and research methods used in this legal study. Chapter Two examined the policy

trends behind the school voucher movement and presented leading policy arguments on both

sides of the school voucher controversy in regards to the constitutionality of voucher programs

that provide public aid to religious schools. Chapter Three provided a history of the U. S.

Supreme Court's Establishment Clause jurisprudence, from Everson v. Board of~ducation of

Ewing Townshipl92 to the M~itchell v. HelmS193 decision. Chapter Four described the Ohio Pilot

Proj ect Scholarship Program, traced the Zelman v. Simmons-Harris lawsuit through the federal

and state courts to the U. S. Supreme Court, and summarized the U. S. Supreme Court opinion in

Zelman. Chapter Five, the concluding chapter, briefly reviewed school voucher legislation at the

federal and state level since the Zelman decision. The final chapter identified that school


192 330 U.S. 1 (1947).

193 530 U.S. 793 (2000).










residence.8 This assumes equalizing resources (inputs) will also equalize performance and life

outcomes.82

Educational Trends in the 1970s

President Nixon commissioned the Panel on Non-Public Education, a subgroup of the

President' s Commission on School Finance, to investigate the feasibility of government aid to

religious schools.83 "Parochiaid" did not develop beyond a proposal due to the lack of adequate

political support, and the issue of whether public aid to religious schools was constitutional.84

The arguments surrounding the "Parochiaid" debate of the 1970s are very similar to

contemporary arguments over school voucher programs that include religious schools

participation."

During the 1970s, there were key judicial decisions in several jurisdictions that impacted

national educational policy.86 After the U. S. Supreme Court decision in Lemon v. Kurtzman,s

the legislative momentum of direct aid to religious schools ceased at the federal level. The Court

st Charles Glenn. "Parent Choice and American Values in Public Schools by Choice: Expanding Opportunities for
Parents, Students, and Teachers." In Public Schools by Choice. Joe Nathan, ed. St. Paul, MN: The Institute for
Learning and Teaching, 1988; Louann A. Bierlein. Controversial Issues in Educational Policy. Newbury Park, CA:
Sage Publications, 1993, 91.

82 Robert Berne and Leanna Stiefek, "Concepts of School Finance Equity: 1970 to the Present" in National Research
Council, Equity and Adequacy in Education Finance 7-24 (1999).

83 See Pr37-President of the United States Richard M. Nixon. Available at
http://library.wustl.edu/units/westcampusgdo/uocpr/r3.tl Alex Molnar. "Educational Vouchers: A
Review of the Research." CERAl-99-21, October 1999. Available at
http://www. asu. edu/educ/epsl/EPRU/documents/Edouhr/dctnavouchers .html#historical

84 Alex Molnar. "Educational Vouchers: A Review of the Research." CERAl-99-21, October 1999. Available at
http://www. asu. edu/educ/epsl/EPRU/documents/Edouhr/dctnavouchers .html#historical

85See Thomas W. Lyons, "Parochiaid? Yes!" Educational Leadership, November 1971,102-104; Glenn L. Archer,
"Parochiaid? No! Educational Leadership, November 1971,105-107; Grace Graham, "Can the Public School
Survive Another Ten Years?" Educational Leadership, May 1970, 800-803.

86 Lemon v. Kurtzman, 403 U.S. 602 (1971); Serrano v.Priest, 487 P.2d 1241 (Cal. 1971); PARC v. Pennsylvania,
334 F.Supp. 1257 (E.D. PA 1972); M~ills v. Board of Education of the District of Columbia, 348 F. Supp.866 (D.D.C.
1972).

87403 U.S. 602 (1971).










battles. The Bush v. Holmes and Locke v. Davey decisions confirm that no-aid provisions in state

constitutions, whether or not they are referred to as Blaine Amendments, are formidable

obstacles to the implementation of voucher programs.

The U. S. Supreme Court' s Zelman decision seems to resolve most of the federal questions

concerning the constitutionality of school voucher programs under the Establishment Clause.

The Court shifts the constitutional issue back to the states, where state supreme courts will

determine whether school vouchers violate state constitutions.128 Voucher programs will now be

examined in terms of the various state constitutions with respect to the effect of church-state

provisions of some state constitutions, and whether those state limitations are consistent with

either the Free Exercise or Equal Protection Clauses of the U. S. Constitution.129 The decision

did not determine whether vouchers make good policy in school districts across the nation. There

continues to be room for vigorous debate over vouchers as public policy.

Despite the fanfare surrounding Zelman, most states have shown no desire, or states that

have been interested have not been successful, in implementing school voucher proposals. State

legislatures with similar education provisions in the state constitution were expected to mirror

the language of the Ohio law, which was narrowly focused on high poverty areas with failing

schools. Policymakers need to keep in mind the unique circumstances that existed in Ohio. There

was a state legislative determination and a federal court decision documenting the unsatisfactory

educational conditions of the Cleveland Public Schools. There is, however, no certainty that a

future U. S. Supreme Court, with a changed composition, will view Zelman similarly, or view it



128 See School Vouchers: Settled Questions, Continuing Disputes (The Pew Forum on Religion and Public Life, Washington,
D.C.), Aug. 2002, Available at http://pewforum.org/issues/files/Voucher~akg~d (stating that in opening the
Establishment Clause door for vouchers, Zelman also invites a new set of constitutional questions).

129 See Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307 (ilr'4); Wirzburger v. Galvin, 412 F.3d 271 (C.A.1i-Mass.
2005).




Full Text

PAGE 1

1 ZELMAN v. SIMMONS HARRIS : A PUBLIC POLICY ANALYSIS By KATHLEEN GUZMAN SCIORTINO PRESENTED TO THE GRA DUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL F ULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCT OR OF PHILOSOPHY UNIVERSITY OF FLORID A 2007

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2 2007 Kathleen Guzman Sciortino

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3 ACKNOWLEDGMENTS I thank all the people who have contributed suggestions, constructive criticism, and encouragement in the development of this dissertation. First, I a lso thank my advisor, Dr. R. Craig Wood for all his guidance, encouragement, support, and patience. Hi s sincere interest in public school law has been a great inspiration to me. Also, I would like to thank my committee mem bers Dr. James L. Doud, Dr. David S. Honeyman, and Dr. Lynn Leverty for their very helpful insights, comments and suggestions It has been a great pleasure working with the faculty, staff, and students at the University of Florida during my tenure as a doctoral student. Additionally, I ow e a debt of gratitude to my family: p articularly to my understanding and patient husband, Tom, who has supported me through these many years of research, and our children, Sean, Gina, Ryan, Kyle, and Rose. Their unwavering love, support, and encouragement sustained me through this long academic journey. I must also thank my loving parents for inspiring my love of learning. Finally, a special thank you goes to my circle of friends, Karen Morehouse, Merrille Koffler, Judy Johnson, Jackie Sullivan, and Michell e Clopton, who provided invaluable support and suggestions throughout this process. Your friendship has been a constant source of support for me and I cannot imagine that this dissertation would have been completed without your encouragement.

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4 TABLE OF C ONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ ............... 3 GLOSSARY OF LEGAL TERMS ................................ ................................ ................................ .. 8 ABSTRACT ................................ ................................ ................................ ................................ ... 15 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .................. 17 School Vouchers Defined ................................ ................................ ................................ ....... 23 Federal Constitutional Provisions ................................ ................................ ........................... 26 State Constitutional Provisions ................................ ................................ ............................... 28 Milwaukee Parental Choice Program ................................ ................................ .............. 28 Florida Opportunity Scholarship Program ................................ ................................ ...... 33 Town Tuitioning Voucher Programs ................................ ................................ ............... 40 Ohio Pilot Project Scholarship Program ................................ ................................ .......... 43 Tuition Tax Credits/Deductions ................................ ................................ ............................. 45 Statement of the Problem ................................ ................................ ................................ ........ 51 Purpose of the Study ................................ ................................ ................................ ............... 52 Significance of the Study ................................ ................................ ................................ ........ 53 Method of the Study ................................ ................................ ................................ ............... 53 Data Analysis ................................ ................................ ................................ .......................... 55 The Limitations ................................ ................................ ................................ ....................... 55 The Delimitations ................................ ................................ ................................ ................... 56 Organization of the Study ................................ ................................ ................................ ....... 56 2 SCHOOL VOUCHERS AS PUBLIC POLICY ................................ ................................ ..... 58 Introduction ................................ ................................ ................................ ............................. 58 Historical Perspective ................................ ................................ ................................ ............. 60 The Emergence of Government Schools ................................ ................................ ................ 61 The Common School Movement ................................ ................................ ............................ 62 The Federal Role in Education ................................ ................................ ............................... 65 Educational Trends in the 1950s ................................ ................................ ............................. 66 Hig h Expectations of the 1960s and the 1970s ................................ ................................ ....... 69 Equality of Educational Opportunity ................................ ................................ ............... 70 Equity ................................ ................................ ................................ .............................. 75 Educational Trends in the 1970s ................................ ................................ ............................. 76 Educational Trends in the 1980s ................................ ................................ ............................. 79 Educational Trends in the 19 90s ................................ ................................ ............................. 82 Current Educational Trends ................................ ................................ ................................ .... 89 Liberty and Parental Rights ................................ ................................ ............................. 91 Proponents of School Vouchers ................................ ................................ ...................... 94

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5 School Voucher Opponents ................................ ................................ ............................. 97 School Voucher Politics ................................ ................................ ................................ ....... 101 Democrats/Republicans ................................ ................................ ................................ ........ 103 Summary ................................ ................................ ................................ ............................... 104 3 ESTABLISHMENT CLAUSE JURISPRUDENCE ................................ ............................ 107 Introduction ................................ ................................ ................................ ........................... 107 Doctrinal Background ................................ ................................ ................................ ... 109 Strict Separation ................................ ................................ ................................ ............ 112 Nonpreferentialism ................................ ................................ ................................ ........ 113 Government Neutrality ................................ ................................ ................................ .. 114 Early Cases: Separationist Perspect ive ................................ ................................ ................. 115 Landmark Lemon and Progeny ................................ ................................ ............................ 121 Transition to Government Neutrality ................................ ................................ .................... 135 Significant Doctrinal Shift ................................ ................................ ................................ .... 142 Summary ................................ ................................ ................................ ............................... 149 4 ZELMAN v SIMMONS HARRIS DECISION ................................ ................................ ... 152 Introduction ................................ ................................ ................................ ........................... 152 The Ohio Pilot Project Scholarship Program ................................ ................................ ........ 154 Legal Challenges to the Vouche r Program ................................ ................................ ........... 158 U. S. Supreme Court Decision ................................ ................................ .............................. 167 Mueller, Witters, and Zobrest. ................................ ................................ ....................... 169 Supreme Court Responses to Respondent's Argument ................................ ................. 173 Concurring Opinions ................................ ................................ ................................ ..... 176 ................................ ................................ ............ 176 ................................ ................................ ................. 178 Dissenting Opinions ................................ ................................ ................................ ...... 179 Justic ................................ ................................ ........................... 179 ................................ ................................ .......................... 180 ................................ ................................ .......................... 180 Significance ................................ ................................ ................................ .......................... 181 Implications ................................ ................................ ................................ .......................... 186 5 SUMMARY, CONCLUSIONS, IMPLICATIONS, AND RECOMMENDATIONS ......... 190 Summary ................................ ................................ ................................ ............................... 192 ................................ ......... 192 U. S. Supreme Court Establishment Clause Standards in Zelman ................................ ....... 194 Direct Aid to Religious Schools ................................ ................................ .................... 196 Shift in Establishment Clause Doctrine ................................ ................................ ......... 197 Indirect Aid to Religious Schools ................................ ................................ .................. 198 Applicable Judicial Decisions ................................ ................................ ....................... 199 Cleveland School Voucher Program Litigation ................................ ................................ .... 201 School Voucher Legislation after Zelman ................................ ................................ ............ 204

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6 Conclusion ................................ ................................ ................................ ............................ 212 Implications ................................ ................................ ................................ .......................... 215 Colorado ................................ ................................ ................................ ........................ 217 Florida ................................ ................................ ................................ ............................ 218 Maine ................................ ................................ ................................ ............................. 220 Recommendations for Further Research ................................ ................................ .............. 221 APPENDIX: CITED CONSTITUTIONS, STA TUTES, REGULATIONS, AND CASES ....... 224 United States ................................ ................................ ................................ ......................... 224 Statutes ................................ ................................ ................................ .......................... 224 Cases ................................ ................................ ................................ .............................. 226 Arizona ................................ ................................ ................................ ................................ 228 Arizona Constitution ................................ ................................ ................................ ..... 228 Cases ................................ ................................ ................................ .............................. 229 California ................................ ................................ ................................ .............................. 229 Statutes ................................ ................................ ................................ .......................... 229 Cases ................................ ................................ ................................ .............................. 229 Colorado ................................ ................................ ................................ ............................... 229 Statutes ................................ ................................ ................................ .......................... 229 Cases ................................ ................................ ................................ .............................. 229 Statutes ................................ ................................ ................................ .......................... 230 Cases ................................ ................................ ................................ .............................. 230 Florida ................................ ................................ ................................ ................................ ... 230 Florida Constitution ................................ ................................ ................................ ....... 230 Florida Statute Annotated ................................ ................................ .............................. 230 Cases: ................................ ................................ ................................ ............................. 231 Idaho ................................ ................................ ................................ ................................ ..... 231 Illinois ................................ ................................ ................................ ................................ ... 231 Iowa ................................ ................................ ................................ ................................ ...... 231 Maine ................................ ................................ ................................ ................................ .... 231 Statutes ................................ ................................ ................................ .......................... 231 Cases: ................................ ................................ ................................ ............................. 232 Massachusetts ................................ ................................ ................................ ....................... 232 Mas sachusetts Constitution ................................ ................................ ........................... 232 Cases ................................ ................................ ................................ .............................. 232 Michigan ................................ ................................ ................................ ............................... 232 Michigan Cons titution ................................ ................................ ................................ ... 232 Minnesota ................................ ................................ ................................ ............................. 232 Minnesota Const itution ................................ ................................ ................................ 232 Minnesota Stat ................................ ................................ ................................ ............... 232 North Carolina ................................ ................................ ................................ ...................... 232 Ohio ................................ ................................ ................................ ................................ ...... 233 Ohio Constitution ................................ ................................ ................................ .......... 233 Ohio Revised Code Ann ................................ ................................ ................................ 233 Cases ................................ ................................ ................................ .............................. 233

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7 Pennsylvania ................................ ................................ ................................ ......................... 234 Pennsylvania Constitution ................................ ................................ ............................. 234 Pennsylvania Statute Ann ................................ ................................ .............................. 234 Cases ................................ ................................ ................................ .............................. 234 Vermont ................................ ................................ ................................ ................................ 234 Statutes ................................ ................................ ................................ .......................... 234 Cases ................................ ................................ ................................ .............................. 234 Virginia ................................ ................................ ................................ ................................ 235 Washington ................................ ................................ ................................ ........................... 235 Washington Constitution Article 1, § 11 ................................ ................................ ....... 235 Washington Revised Code ................................ ................................ ............................ 235 Cases ................................ ................................ ................................ .............................. 235 Wisconsin ................................ ................................ ................................ ............................. 235 Wisconsin Constitution ................................ ................................ ................................ 235 Wisconsin Act ................................ ................................ ................................ ............... 235 Wisconsin Statute ................................ ................................ ................................ .......... 235 Cases ................................ ................................ ................................ .............................. 236 LIST OF REFERENCES ................................ ................................ ................................ ............. 237 BIOGRAPHICAL SKETCH ................................ ................................ ................................ ....... 257

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8 GLOSSARY OF LEGAL TERMS Accommodationist N ot a legal term, but a descriptor in legal literature referring generally to those interpreting the Establishment Clause as allowing some interactions between government and religion, or even non preferential government aid to religion. In Establishment Clause jurisprudence, it is the opposite of the separationist position. Affirm T o declare a judgment or decree of a lower court to be valid and correct. Amicus c uriae directly is a involved in a suit, who files a brief with the court which provides information and arguments relevant to a particular case. Appeal T he method of review of inferior court proceedings by a superior court requested by the losing party in the i nferior court. Appellate c ourt A court possessing the authority to review, and sustain or Reverse decisions of a lower court. The U. S. Supreme Court is an appellate court. Associate j ustice T he title given to judges of an appellate court excluding the chief justice. Brief A written statement setting out the legal contentions of a party in litigation, esp. on appeal; a document prepared by counsel as the basis for arguing a case, consisting of legal and factual arguments and the authorities in support o f them. Case l aw T he law as handed down in written judicial opinions. Certiorari A n order from a superior to an inferior court to send the entire record of a case to the superior court for review. A Writ of Certiorari is issued by the U. S. Supreme Cour t when four of the nine justices agree to hear a case. Chief Justice T he title given to the judge who is the chief administrative officer of an appellate court. Child b enefit d octrine U. S. Supreme Court put forward the doctrine in Cochran v. Louisiana State Board of Education 1 The Court reasoned that 1 281 U.S. 270 (1930).

PAGE 9

9 assistance provided to individuals, rather than to the church related institutions which those individuals happen to attend, is Clause. In Co chran the aid was specifically the provision of secular textbooks to students attending parochial schools. This doctrine was important in the Everson v. Board of Education 2 and all later textbook cases beginning with Board of Education v. Allen 3 Compellin g i nterest A tool of constitutional interpretation that requires the state to demonstrate that depriving individuals or groups of fundamental rights (i.e., to freely exercise their religion) is necessary for the public good. Concur T o agree; act togethe r; consent. To agree with the result reached by another, but not necessarily with the reasoning or logic used in reaching such a result. In the practice of appellate or justices, in which he/ she agrees with the conclusions or the result of another opinion filed in the case (which may be either the opinion of the court or a dissenting opinion) though he/she states separately his/her views of the case or his/her reasons for so concurring. Consti tutional C onsistent with, authorized by or not conflicting with any provision of a constitution. Decision A popular rather than a technical or legal word referring to the judgment or conclusion of a court with respect to an issue. Dictum I ndividual view s or opinions of a judge which may be in addition or unnecessary to the determination of the court; opposite of Holding. Doctrine A rule, principle, theory or tenet of the law. Due p rocess c lause T wo such Clauses are found in the U. S. Constitution; on e in the Fifth Amendment, pertaining to the federal government, and the other in the Fourteenth Amendment which protects persons from state actions. It was through the Due Process Clause of the Fourteenth Amendment that both the Establishment and Free Exer cise Clauses were held to apply to the states, as well as to acts of Congress. 2 330 U.S. 1 (1947). 3 392 U.S. 236 (1968).

PAGE 10

10 En b anc When all the members of an appellate court hear an argument, they are sitting en banc. Refers to court sessions with the entire membership of a court participating rather than the usual quorum. U. S. courts of appeals usually sit in panels of three judges, but may expand to a larger number in certain cases. Endorsement t est A revision of the Lemon test fo r deciding Establishment Clause Lynch v. Donnelly, 4 asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause. According to the test, a govern ment action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion. Establishment Clause F ound in the First Amendment of the U. S. Constitution, it hall make no law respecting the 5 It was made applicable to the states by incorporation through the Fourteenth Amendment by the Supreme Court in the case of Everson v. Board of Education. 6 Federal c ourts R efers to the courts of the United States (as distinguished from state, county, or city courts) as authorized by Art. III of the U.S. Constitution. Federal q uestion j urisdiction C ases involving the interpretation and application of the Constitution, laws, or treaties of the U nited States. First Amendment A mendment to the U. S. Constitution guaranteeing basic freedoms of religion, speech, press, and assembly ant the right to petition the government for redress of grievances. Free Exercise Clause F ound in the First Amendment of the U. S. Constitution, it prohibiting the free incorporation through the Fourteenth Amendment by the Supreme Court in the case Cochran v. Louisi ana 7 4 465 U.S. 668 (1984). 5 U. S. Const. Amend. I 6 330 U.S. 1 (1947). 7 281 U.S. 270 (1930).

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11 Holding T he legal principle or principles which may be derived from the opinion (decision) of the court; opposite of dictum. Injunction A court order that either prohibits (restrains) or compels (enjoins) a party from continuing a particular activi ty. Judgment A formal decision made by a court following a lawsuit. Judicial r eview T he power of a court to examine legislative enactments and acts of executive officials for constitutionality or for the violation of basic principles of justice. Legisl ative i ntent R efers to the intentions of legislators when enacting a law. Usually involves a reading and interpreting by a court of the legislative history of a statute. Lemon t est T he three prong test established by the Supreme Court in Lemon v. Kurtzman 8 for determining what are permissible and impermissible governmental actions under the Establishment Clause of the First Amendment. For an action not to violate the Establishment Clause it must have a secular purpose, a neutral effect (i.e., nei ther advance or inhibit religion), and it must not create an excessive entanglement between church and state. Non p referentialist t est A n alternative to the Lemon test for deciding Establishment Clause cases endorsed by Chief Justice Rehnquist. The non preferentialist position is that the Establishment Clause only prohibits the government from establishing a state church, or showing preference between religions. Opinion A written statement by a judge or court announcing a decision in a case and usuall y majority opinion establishes new legal precedent, or supersedes or reverses existing precedent. It is typically written by one judge and represents the principles of law which a majority of the judges on the court deem op erative in a given decision. A dissenting opinion is an opinion of one or more judges in an appellate court expressing disagreement with the majority opinion. By definition, a dissent is the minority of the court. A concurring opinion is a separate opinion delivered by one or more judges who agree with the decision of the majority of the court but offering own reasons for reaching that decision. A plurality opinion is one in which no single opinion received the support of a majority of the court, but receiv ed more support than any other opinion. 8 403 U.S. 602 (1971).

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12 Original i ntent T he attempt to determine what the Framers of the Constitution meant when they wrote the Constitution, and to remain true to those principles when interpreting the basic document. Parochiaid N ot a l egal term, but a descriptor found in legal and popular literature referring to government aid to religion, specifically government aid to religious schools. Pervasively s ectarian d octrine D eveloped by the Court as a guideline in applying the second pron g of the Lemon test to parochiaid cases. A school is educational functions are inseparable. Petition A title of an initial pleading requesting judicial action on a certain matter to be heard before a court. Plaintiff A person who initiates a lawsuit (also known as an action) before the court and seeks remedial relief for an injury to rights. Precedent A decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Prior cases which are close in facts or legal principles to the case under consideration are called prec edents. A rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. See also Stare decisis. Public l aws Acts of Congress are designated in the form: Public Law X Y where X is the number of the ordinal Congress and Y is the number of the chronological order of the Act in that Congress. For example, the Civil Rights Act of 1964, Pub. L. 88 352, was the 352 nd Act of Congress passed in the 88 th Congress. Remand Latin meaning to sen d back. An appellate court sending a case back to the same court from which it came for the purpose of having the lower court take some further action. Reverse T he action of an appellate court voiding, annulling or repealing the decision of a lower court. Ruling A judicial or administrative interpretation of a provision of a constitution, statute, order, regulation or ordinance.

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13 Separationist N ot a legal term, but a descriptor used in legal literature referring generally to those who interpret the Estab lishment Clause as allowing little or no interaction between government a wall of separation between Church and 9 and is the opposite of the accomodationist position. Stare d ecisis when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are su bstantially the same; regardless of whether the parties and property are the same. It is the policy of courts to stand by precedent and not to disturb settled point. Statute A formal written enactment of a legislative body, whether federal, state, city, o r county. An act of the legislature declaring, commanding, or prohibiting something; a particular law enacted and established by the will of the legislative department of government; the written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state. Strict s crutiny T he highest standard of judicial review used by courts to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the in terest is being pursued. To pass strict scrutiny, the law or policy must satisfy three prongs: compelling government interest, the law or policy must be narrowly tailored, and must be the least restrictive means for achieving governmental interest. Supreme Court A n appellate court existing in most of the states. In the federal court system, and in most states, it is the highest appellate court or court of last resort whose rulings cannot be challenged. Tax c redit A ability is reduced. A tax credit reduces the tax owed dollar for dollar. Tax d eduction A proportion to his/her tax bracket (the amount is deducted prior to determining taxable income). It has th e affect of reducing the amount of taxes that would otherwise be owed. 9 See Thomas Je

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14 United States Code A compilation and codification of the general and permanent federal law of the United States. Voucher A certificate which is worth a certain monetary value and whic h may only be spent for specific reasons or on specific goods. A school voucher is a payment the government makes

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15 Abstract of Dissertation Presented to t he Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy ZELMAN v. SIMMONS HARRIS : A PUBLIC POLICY ANALYSIS By Kathleen Guzman Sciortino August 2007 Chair: R. Cra ig Wood Major: Educational Leadership State and federal court decisions have been divided over the constitutionality of school voucher programs that include religious schools. In the absence of a uniform national standard, these court decisions provided m ixed messages to policymakers concerning what constitutes permissible public aid to religious schools. In Zelman v. Simmons Harris the U. S. Supreme Court held that the Ohio Pilot Project Scholarship Program, as implemented in the Cleveland Voucher Progra m, does not violate the Establishment Clause of the U. S. Constitution by providing state funds to religious schools. The Court held that the program was neutral with in turn, direct[ed] government aid to religious schools wholly as a result of their own genuine and The purpose of the study was to trace the school voucher movement in the United States, specifically examining the Ohio Pilo t Project Scholarship Program and subsequent legal challenges that culminated in the U. Zelman v. Simmons Harris decision. T he study highlighted policy trend s the Court found persuasive in Zelman The research summarized the U. S. Suprem e Court Establishment Clause standards with regard to direct public aid for religious schools traced the shift in U. S. Supreme Court Establishment Clause

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16 doctrine, summarized indirect public aid for religious schools, and described pertinent judicial dec isions the Court found applicable in Zelman A review of litigation was presented pertaining to the Cleveland Voucher Program which led directly to the U. S. Supreme Court decision in Zelman v. Simmons Harris T he study reviewed school voucher legislation since the Zelman decision. To discover central issues, traditional legal research methods were used to examine and analyze the permissible use of publicly funded vouchers in support of religious schools.

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17 CHAPTER 1 INTRODUCTION Educational reform, partic ularly in low income urban areas, has been a priority public policy issue since the 1960s. 1 Urban elementary and secondary public schools face an array of challenges (i.e., governance issues, desperate financial circumstances, unsatisfactory student achiev ement, poorly maintained or dangerous facilities, inexperienced teachers, high student mobility, and a lack of consensus regarding educational reform strategies). 2 Traditionally, public school student assignments are based on resident locations that result in schools that are economically and racially homogeneous. 3 This has been the case for urban public schools that are highly segregated, both racially and economically. 4 This residential geography affects the type of public school education children rece ive and what they learn about life in American society. 5 For the most part, suburban families have the ability to make class related choices by their financial ability to buy or rent homes in expensive areas with good schools while families of poor, mostly minority children have little real choice 1 Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c, Pub. L. 88 352, July 2, 1964, 78 S tat. 241, authorized grants and loans for school districts and higher education institutions in transitioning into desegregation; Economic Opportunity Act of 1964, 42 U.S.C. § 2701 et seq ., Pub. L. 88 452, Aug. 20, 1964, 78 Stat. 508, created compensatory education programs (i.e., Head Start); Title I of the Elementary and Secondary Education Act of 1965 20 U.S.C. 6301 et seq ., Pub. L. No. 89 10, title I, § 1001, created grants for educational programs at the state and local levels to financially assist sc hools with high concentrations of poor children; and the Bilingual Education Act of 1968 20 U.S.C. § 7401, Pub. L. 90 247, mandated public schools to provide bilingual education programs through Title VII of the Elementary and Secondary Education Act of 1 965 20 U.S.C. 7424. 2 Jonathan Kozol. New York: Crown Publishers, 1991. 3 See Phi Delta Kappan April 1985: 527 532. 4 Gary Orfield. Schools M ore Separate: Consequences of a Decade of Resegregation Cambridge, MA: The Civil Rights Project, Harvard University, 2001. Available at http:civilrightsproject.harvard.edu/research/deseg/Schools_More_Separate.pdf (last visited Feb. 2, 2007). 5 Charles Gle Public Schools by Choice Joe Nathan, ed. St. Paul, MN: The Institute for Learning and Teaching, 1989, 47; Jonathon Kozol, New York: Crown Publishers, 1991.

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18 where they will live. Too often attending the neighborhood school places poor children into schools populated entirely of other poor children. Various educational reforms have been proposed, 6 some reforms have ev en been shown to have a positive effect, 7 but in general, the piecemeal approach to educational reform has not resulted in enduring and comprehensive improvement in urban public schools. 8 One controversial solution to the desperate needs of urban public sc hools is to change the way school systems are governed through school choice. 9 In theory, school choice reforms, which include charter schools and school vouchers, are dedicated to improving the quality of education. Increased educational options are made available to parents of children enrolled in public schools and thereby make public schools more directly accountable to parents for educational outcomes. Educational policy in the United States is a complex system of decision making that focuses on the c ritical question of how public education should be governed, and by whom. In order to understand the role of public participation in education and educational policy, it is first necessary to note the respective roles of the federal, state, and local gover nment in public education. Currently, legislatures at both the federal and state level are active in creating educational policy. 10 6 See i.e., Back to Basics curricula, teacher professional development, class size reduction, raised graduation requirements, comprehensive school reform, high stakes tes ting, abolition of social promotion, site based management, and innumerable reading and math programs. 7 See Geoffrey D. Borman, Robert E. Slavin, Alan Cheung, Anne Chamberlain, Nancy Madden, and Bette ess for All: Second American Educational Research Journal 42 (4), 673 696. (April, 2005). Available at http://www.successforall.org/_images/pdfs/SFA_RE_Year2_Outcomes.doc (last visited Feb. 2, 2007). 8 Frederick Hess. Spinning Wheels: the P olitics of Urban School Reform Washington, D.C.: Brookings Institution Press, 1999. 9 the States, April 2002. Available at http://www.ecs.org/clearinghouse/35/21/3521.pdf (last visited Feb. 26, 2007). 10 Frances C. Fowler. Policy Studies for Educational Leaders New York: Prentice Hall Inc., 2000.

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19 Although there is no mention of education in the U. S. Constitution, the federal h time it initiated financing education within the territories. 11 In 1819, the U. S. Supreme Court confirmed the authority of the Federal government 12 13 The number of pro grams and funding appropriated for education greatly increased in the 1960s. 14 Since then federal courts routinely support congressional acts that establish conditions under which states can obtain funding for educational purposes. 15 Upon challenge of legis lation, the courts have played a major role in defining important educational policy issues. 16 to compel attendance, 17 18 The impetus for increased governmental influence on educational policy was illustrated in the U. S. 11 Northwest Ordinance, July 13, 1787, 1 Stat. 51; (National Archives Microfilm Publication M332, roll 9); Miscellaneous Papers of the Continental Congress, 1774 1789; Records of the Continental and Confederation Congresses and the Constitutional Convention, 1774 1789, Record Group 360; National Archives. Available at http://ourdocuments.gov/doc.php?flash=false&doc=8# (last visited Feb. 2, 2007). The sixteenth section in each township was reserved for the maintenance of public schools also revenue created by selling a portion of each township in the new states would go to fund public education; See also Morrill Act, 7 U.S.C. 301 et seq ., July 2, 1862, ch. 130, 12 Stat. 503. The Morrill Act provided federal funds to establish land grant colleges and state universities. 12 McCulloch v. Maryland 17 U .S. 316 (1819). 13 U. 14 See Title I of the El ementary and Secondary Education Act of 1965 20 U.S.C. 6301 et seq ., Pub. L. No. 89 10, title I, § 1001, which created grants for educational programs at the state and local levels. 15 See Family Education Rights to Privacy Act, 20 U.S.C. 1232; Individuals with Disabilities Education Act 20 U.S.C. 1400 et seq. ; and Title IX, Education Amendments of 1972, 20 U.S.C. 1681. 16 Joel Spring. The American School: 1642 1996 4 th ed New York: McGraw Hill, 1997; David B. Tyack, Thomas James, and Aaron Benavot. Law an d the Shaping of American Public Education: 1785 1954 Madison, WI: University of Wisconsin Press, 1987. 17 Massachusetts adopted the first compulsory school attendance laws in 1852 and by 1918 all states had enacted compulsory school attendance laws. 18 Mar k G.Yudof, Betsy Levin, and David L. Kirp. Educational Policy and the Law 4 th ed. Belmont, CA: Wadsworth Group/Thomson Learning, 2002, xi.

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20 Supreme Court landmark decision Brown v. Board of Education 19 Congress followed this decision with legislative efforts to ensure equal educational opportunities for minorities, 20 women, 21 and students with special needs. 22 In the 1960s and early 1970s, Congress created a number of federal initiatives to achieve equal educational opportunity and equity in the states. 23 As a result, state legislatures and local boards of education struggled to pay for federally required programs. State and local officials were pressured to implement policies which altered their management responsibilities. New federalism, which involved the federal government providing block grants to the states for education, became popular in the 1980s and 1990s. This national policy once again shifted responsibility back to state and local legislators, administrators, and judges who re emerged as the primary sources of school reform initiatives. Ano ther appealing feature of the block grant approach to federal assistance was the prospect of simplifying federal programs. For an example, during the Reagan Administration the federal government created Chapter 2 of the Education Consolidation and Improvem ent Act of 1981, 24 which was a block grant that combined more than forty smaller education programs. In 1983, the influential education report of the Reagan administration, A Nation at Risk 25 created the perception of a failing public school system and thu s changed the goals of public 19 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). 20 Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c, d 21 Title IX, Education Amendments of 1972, 20 U.S.C. §§ 1681 1688. 22 Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq 23 See Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c, d; Education for All Handicapped Children Act of 1975, 20 U.S.C. 1400 et seq ., Pub. L. 94 192, Nov. 29, 1975, 89 Stat. 773. 24 20 U.S.C. Sec. 3801 et seq ., Pub. L. 97 35, title V, subtitle D (§5551 et seq .), Aug. 13, 1981, 95 Stat. 463. 25 U. S. Department of Education. A Nation at Risk: The Imperative for Educational Reform a report of the National Commission on Excellence in Education. Washington, DC: U. S. Government Printing Office, 1983. The

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21 education. Concerns regarding student achievement replaced equity concerns in policy agendas 26 and sparked the present period of intense school reform, which calls for higher academic standards and privatization. Inconsistent r esults from these reforms (i.e., standards based reforms, governance reforms) have made it clear that educational change is a slow process 27 and that its ultimate success or failure is still unclear. 28 In 1994, Congress passed the Goals 2000: Educate Americ a Act 29 students can learn and achieve to high standards and must realize their potential if the United 30 As a result of the first education summit involving the President and the ion in 1989, 31 this legislation aimed to establish common goals for the improvement of public schools throughout the nation. A new focus on achievement grew from the bipartisan opinion that too many students were not achieving (by either perceived or actual deficits) at levels necessary for success in the global economy. 32 Immediately, efforts to me 26 Mark G. Yudof et al., Educational Policy and the Law 4 th ed. Belmont, CA: Wadsworth Group, 2002, 773. 27 Richard F. Elmore and Milbrey W. McLaughlin. Steady Work: Policy, Practice, and the Reform of American Education. Santa Monica, CA: RAND Corporation, 1988; David Tyack and Larry Cuban. Tinkering Toward Utopia: A Century of Public School Reform. Cambridge, MA: Harvard University Press, 1995. 28 Helen F. Ladd and Janet S. Hansen, eds. Washington, D.C.: National Academy Press, 1999, 18. 29 Goals 2000: Educate America Act 20 U.S.C. § 5801 et seq ., Pub. L. 103 227, Mar. 31, 1994, 108 Stat. 125 191, 200 211, 265 280. 30 Id at § 301(1). 31 He len F. Ladd and Janet S. Hansen, eds. Washington, D.C.: National Academy Press, 1999, 15. 32 See Milton Friedman, Capitalism and Freedom Chicago, IL: University of Chicago Press, 1962; John E. Coons and St ephen D. Sugarman, Education by Choice: The Case for Family Control Berkeley, CA: University of California Press, 1978; John E. Chubb and Terry M. Moe, Washington, DC: Brookings Institution, 1990; John E. Coons a nd Stephen D. Sugarman, Scholarships for Children Berkeley, CA: Institute of Governmental Studies Press, 1992; Myron Lieberman, Public Education: An Autopsy Cambridge, MA: Harvard University Press, 1993; Amy Stuart Wells, Time to Choose: America at the C rossroads of School Choice Policy New York, NY: Hill & Wang, 1993; Peter W. Cookson Jr., School Choice: The Struggle for the Soul

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22 improve public schools were attempted by most states. 33 School choice in the form of charter schools and vouchers were considered an alternative to promote change and achieve desired national goals. Many reforms were proposed, and adopted, but few stirred as much controversy as publicly funded vouchers for use at private schools. During the presidencies of Lyndon Johnson, 34 Richard Nixon, 35 Ronald Reagan, 36 George H. W. B ush, 37 and William J. Clinton, 38 school choice as a policy concept was a topic of interest. 39 This trend has continued during the presidency of George W. Bush with the passage of the No Child Left Behind Act of 2001(NCLB) which established public school choic e into of American Education New Haven, CT: Yale University Press, 1994; David Berliner and B.J. Biddle, The Manufactured Crisis: M Reading, MA: Addison Wesley, 1995; Kevin B. Smith and Kenneth J. Meier, The Case against School Choice: Politics, Markets, and Fools Armonk, NY: M. E. Sharpe, 1995; Bruce Fuller and Richard F. Elmor e, eds., Who Chooses? Who Loses? Culture, Institutions, and the Unequal Effects of School Choice New York, NY: Teachers College Press, 1996; and Andrew J. Coulson, Market Education: The Unknown History New Brunswick, NJ: Transaction Publishers, 1999. 33 S ee Cumb. L. Rev. 01 (1995). 34 unity which proposed a school voucher experiment (Alum Rock). Available at http://www.pfaw.org/pfaw/dfiles/file_228.pdf (last visited Feb. 26, 2007). 35 Id President Nixon formed the Presidentia 36 See Public Papers of the Presidents of the United States: Ronald Reagan. Washington, DC: Office of the Federal Register, 1987,128, 153. The Reagan administration attempted to convert Chapter One funds for disadvantaged students into individual vouchers. 37 to fund choice scholarships and experiments in 1989. See Stedman, James B. and Wayn e Clifton Riddle. The Washington, D.C.: Congressional Research Service; America 2000, a similar program in 1991 and the Federal Grants for State and Loc low income students to attend the public, private, or religious school of their choice. See John T. Woolley and Gerhard Peters. The American Presidency Project. Santa B arbara, CA: University of California, 1992. Available at http://www.presidency.ucsb.edu/ws/index.php?pid=21259. (last visited June 26, 2007). 38 See The American Presidency Project Available at http://www.presidency.ucsb.edu/ws/index.php?pid=53358. (last visited June 26, 2007). 39 See Michael Mintrom. Policy Entrepreneurs and School Choice. Washington, D.C.: Georgetown University Press, 2000, 182 ; Alex Molnar. Educational Issues Series : School Choice. 1996. Available at http://www.weac.org/resource/nov96/vouchers.htm (last visited Feb. 26, 2007).

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23 federal law. 40 This legislation reauthorized and expanded the Elementary and Secondary Education Act, first enacted in 1965. 41 NCLB mandates that if a school failed to make adequate annual progress for three consecutive years, disadvantaged students w ould become eligible to use Title I funds (approximately $1,500 per child) to enroll in a higher performing public or private school, or to receive supplemental educational services from a provider of choice. 42 Parents with a child enrolled in a school ide ntified as under performing have the option to transfer their child to a better performing public school or public charter school in the same district. Most controversial in this proposed plan was the voucher program. As the bill proceeded through Congress the voucher provision for private schooling was defeated and removed from the bill. 43 School Vouchers Defined The contemporary idea of school vouchers was introduced by economist Milton Friedman as an educational reform in the 1950s. 44 In his book, Free to Choose: A Personal Statement 45 he advocated: One way to achieve a major improvement, to bring learning back into the classroom, especially for the currently most disadvantaged, is to give all parents greater control over 40 No Child Left Behind Act of 2001, 20 U.S.C. 6301 et seq. (Pub. L. No. 107 110, Jan. 8, 2002, 115 Stat. 1425). Available at www.ed.gov/policy/elsec/leg/esea02/index.html (last visited Feb. 26, 2007). 41 Elementary and Secondary Education Act of 1965 (ESEA) created grants for educational prog rams at the state and local levels (i.e., Title I of the Elementary and Secondary Education, 20 U.S.C. 2701 et seq .). 42 20 U.S.C. § 6316(b)(1)(E). 43 See New York Times, May 3, 2001. Available at http://www.nytimes.com/2001/05/03/politics/03EDUC.html Washington Post June 15, 2001. Available at http://washingtonpost.com/ac2/wp dyn/A3404 2001Jun14?language (last visited Feb. 26, 2002) ; Lizette Alvarez. New York Times June 15, 2001. Available at http://www.nytimes.com/2001/06/15/politics/15EDUC.html (last visited Feb. 26, 2002). 44 Ec onomics and the Public Interest Robert A. Solow, ed. Piscataway, NJ: Rutgers University Press, 1955. 45 Milton and Rose Friedman. Free to Choose: A Personal Statement Orlando, FL:Harcourt, Inc, 1980.

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24 their children's schooling, simil ar to that which those of us in the upper income classes now have. Parents generally have both greater interest in their children's schooling and effective way to assure parents greater freedom to choose, while at the same time retaining present sources of finance, is a voucher plan. 46 Tax 47 They are a tuition grant or scholarship issued by a public entity (federal, state, or local school district) that entitles eligible recipients to a specified type and level of educational service. 48 S. Congress or 49 50 In a school voucher system, funding is allocated to families who choose to spend the dollars at private schools. The dollar value of a voucher is usually equal to, bu t may be less than, the state average per pupil expenditure, and may cover either the partial or full cost of private school tuition. 51 The funding may flow either directly to the family or to the eligible school. Examples of the wide range of school choice alternatives are private schools, home schools, magnet schools, inter district and intra district open enrollment programs, dual/concurrent enrollment programs, charter schools, tuition tax credits and deductions, and 46 Id at 160. 47 http://www.urban.org/pubs/vouchers/intro.html 48 David H. Monk. Educational Finance: An Economic Approach New York: McGraw Hill Publishing Company, 1990, 72. 49 Ma rcus Egan. Keep Public Education Public: Why Vouchers Are a Bad Idea Alexandria, VA: National School Boards Association, 2003, 3. Available at http://www.nsba.org/site/docs/32500/32418.pdf (last visited Feb. 4, 2007). 50 See Vouchers and the Provision of Public Services Washington, D.C.: The Brookings Institution Press, 2000. C. Eugene Steuerle, Van Ddorn Ooms, George Peterson, Robert D. Reischauer, eds. 51 Education Finance Task Force White Paper American Institutes of Research Draft Handbook Update Project, 12/19/00. Available at http://nces.ed.gov/forum/pdf/finance_voucher.pdf

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25 private voucher programs. 52 Though dif ferent operationally, these options share one critical feature: the student and family select the school and type of education. 53 School vouchers represent a great divergence in practice from the traditional governmental managed public education system fun ded by local and state taxes. Public schools are funded based on enrollment and other special factors, such as poverty level of students and number of students with special needs. The intent of school vouchers is to reform the fundamental organization of t he school system. Three essential characteristics distinguish vouchers from conventional schools. 54 First, there is the element of admission by choice. 55 Parents have control in deciding where their children attend school rather than school districts using c entralized student assignments by zoning patterns. 56 Whether the participating school has a choice in admitting students depends on the details of the law authorizing the voucher program. Second, market accountability distinguishes vouchers from convention al schools. 57 Market accountability allows parents to choose the best schooling option for their child. Private schools only receive public funding if parents enroll their children. Therefore, the market mechanism of 52 llik Rouk, Joyce Pollard and Julia Guzman. Insights on Education Policy, Practice, and Research, Number 12, 1 13. September 2000. Available at http://www.sedl.org/policy/insights/n12/ 53 Public Schools by Choice: Expanding Opportunities for Parents, Students, and Teachers Joe Nathan, ed. St. Paul, MN: The Institute for Learning and Teaching, 1988, 13 40. 54 Brian P. Gill, P. Michael Timpane, Karen E. Ross, and Dominic J. Brewer, Rhetoric Versus Reality: What We Kno w and What We Need to Know About Vouchers and Charter Schools. Santa Monica, CA: RAND, 2001. Available at http://rand.org/publications/MR/MR1118/MR1118.ch1.pdf (last visited Mar. 24, 20 07). 55 Id at 9. 56 CYD Journal: Community Youth Development Volume 2, No. 3. Summer 2001. Available at http://www.cydjournal.org/2001Summer/lutzy_0613.html (last visited Mar. 24, 2007). 57 Brian P. Gill, et al. at 9.

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26 parental choice is the primary accountab ility factor for private schools while conventional public Third, the most distinctive difference between privately operated voucher schools and conventional public schools is autonomy. V oucher schools are publicly funded but operate outside the direct control of a governmental agency. 58 Although voucher programs may include conventional public schools or secular private schools, the majority of those participating are religious private sch ools. Privately operated voucher schools possess broader control over curriculum, instruction, staffing, budget, and internal organization than conventional public schools. The intent of voucher schools is to create opportunities for parents, teachers, non profit organizations, and private businesses to operate publicly funded schools outside the direct control of the local school district. School vouchers are a funding mechanism and not an instructional reform. According to Andrew J. Rotherham, director of have no direct connection with teaching, curriculum, or other in school factors that influence 59 There is no accountability in place for documenting increased student achiev ement. 60 These are important issues to explore, but are beyond the scope of this research. Federal Constitutional Provisions The religion clauses of the First Amendment to the U. make no law respecting an establishment 61 58 Id. at 10. 59 Simmons July 2, 2002. Available at http://www.ppionline.org/documents/Ed_vouchers_702.pdf (last visited June 25, 2007). 60 See Joe Nathan. Charter Schools: Creating hope and opportunity for American education. San Francisco: Jossey Bass Publishers, 1996. 61 U.S. Co nst., amend I.

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27 The religion clauses tolerate neither governmentally established religion nor governmental interferences with religion. The First Amendment is binding on the states through the 14 th Amendment, 62 which requires that people within a state receive equal protection of the laws. Initially, courts assumed that the religion clauses in the U. S. Constitution required state and federal government to remain strictly neutral in matters of religious theory, doctri ne, and practice. In the 1980s and 1990s, the U. S. Supreme Court acknowledged that government accommodation of religion is a more appropriate position than strict neutrality. 64 In accommodating religion, or not accommodating it, government recognizes that there are necessary interrelationships between itself and religion. For example, churches receive community police and fire protection; 65 churches are exempt from state and federal property taxes; 66 and government may not include religious prayer or instruc tion in public schools. 67 To decide whether government accommodation of religion is required, permitted, or prohibited, government and courts must reconcile the inevitable tension between the Establishment Clause and the Free Exercise Clause, and between se paration of church and state and neutrality toward religion. When voucher legislation and enactment has been challenged, the central federal question has been whether school voucher plans permitting participation of religious schools violate the 62 U. S. Const., amend. XIV. 64 Mueller v. Allen 463 U.S. 388 (1983). The Court upheld the c onstitutionality of a Minnesota program allowing tax deductions for educational expenses to all parents, whether their children attend public school or private; Witters v. Wash. Dept. of Servs. For the Blind 474 U.S. 481 (1986). The Court upheld a vocatio nal rehabilitation program that paid the tuition for a student who was blind at a religious school because he freely chose to attend a religious school; Zobrest v. Catalina Foothills Sch. Dist ., 509 U.S. 1 (1993). The Court held that the presence of a sign language interpreter in a religious school did not violate the Establishment Clause. 65 Everson v. Board of Education of Ewing Township 330 U.S. 1 (1947). 66 Walz v. Tax Commision of the City of New York 397 U.S. 664 (1970). 67 Engel v. Vitale 370 U.S. 42 1 (1962).

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28 Establishm 68 The U. S. Supreme Court is the final arbiter of whether a law or action is in conflict with the U. S. Constitution and its Amendments. 69 State Constitutional Provisio ns State supreme courts may interpret state constitutions as providing different or greater constraints upon government action than those founded in the U. S. Constitution. Therefore, state constitutional provisions that are analogs to the Establishment Cl ause are relevant to this research. However, state constitutional challenges to voucher programs are not limited to the issue of religious establishment. Some state constitutions have specific provisions that address educational funding, public money, and uniformity. Several states have enacted school voucher programs, allowing vouchers to be used at religious schools. All of these existing voucher programs were legislatively adopted as opposed to state ballot initiatives. 70 Milwaukee Parental Choice Program In 1990, Wisconsin enacted the Milwaukee Parental Choice Program (MPCP), 71 the budget, was not passed as a stand alone policy by the Wisconsin Legislature. The pur pose of 68 U. 69 U. inferior Courts as the Congr 70 See California Proposition 38 (2000), 71 percent of voters voted no to the school voucher initiative; Michigan Proposal 00 1 School Choice (2000), 69 percent of voters voted no to school voucher initiative ; Washington (1996) 64 percent of voters voted no to the school voucher initiative; California (1993) 70 percent of voters voted no to the school voucher initiative; Colorado (1992) 67 percent of voters voted no to school voucher initiative; Michigan Propo sal of 1978 was defeated at the polls by a margin of 74.3 percent to 25.7 percent. Available at http://www.crcmich.org/PUBLICAT/2000s/2000/rpt331.pdf); and Maryland (1972) 55 percent of voters voted no to school voucher initiative. 71 Wis. Stat. § 119.23 (1 995 96).

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29 education in Wisconsin for children of low 72 Initially, eligible low income families were allowed to use public funds to send their childr en (kindergarten 12 th grade) enrolled in Milwaukee public schools to secular private schools. Participating private schools were required to comply with state anti discrimination and health and safety laws, provide minimum hours of instruction in specified curriculum areas, and undergo state academic performance reviews. program to include religious schools. 73 An opt out provision in the law allowed families to request th 74 The expanded program limited eligibility to Milwaukee families with incomes at or below 175 percent of the federal poverty level pursuant to guidelines of the federal Office of Management and Budget. 75 The number of participants was not to exceed 15 percent of students enrolled in the Milwaukee public schools. In order to avoid sending public funds directly to religious schools, the state issued tuition check was made payable to parents of participating students, and was mailed to the schools for parents to endorse. The school voucher equals the tuition cost at a private school up to the amount of per pupil state aid. Participating private schools use a lottery to assign students if student applications exceed available spaces. 72 Davis v. Grover 480 N.W.2d 460, 462 (Wis. 1992). 73 Wis. Stat. Ann. § 119.23 (2001). 74 Id § 119.23(7) (c) (2001). The intent is to prohibit any religious school from proselytizing students. 75 Id § 119.23(2)(a)(1) (2001). For further example o f how this looks operationally see Available at http ://www.legis.state.wi.us/lfb/Informationalpapers/29.pdf For 2004 05, 175 percent of the federal poverty level is $21, 698 for a family of two; $27,319 for a family of three; and $5,621 for each additional family member above three.

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30 The Milwaukee program was immediately challenged under the Wisconsin and U. S. Constitutions. In Davis v. Grover 76 constitutional prohibition against private or local bills, the establishment of uniform school districts, and the public purpose doctrine, which requires that public funds be spent only for public purposes. At this time, only secular private schools were eligible to participate in the Milwaukee program so r eligion was not an issue in this case. The Wisconsin Supreme Court held that the Milwaukee voucher program did not violate on any of the three issues under review. 77 In Miller v. Benson 78 parents of low income students participating in the MPCP filed suit against the Wisconsin Superintendent of Public Instruction. The parents claimed that the exclusion of religious private schools from MPCP violated the Free Exercise Clause of the First Amendment, applied to the states by the Fourteenth Amendment. 79 The dist rict court held that using a voucher to pay tuition at nonreligious and religious schools violated the Establishment Clause of the First Amendment. 80 The parents appealed and while the appeal was pending the state enacted a new version of the MPCP minus the tuition at religious schools. 81 The Attorney General of Wisconsin filed a motion arguing that the case was moot because the amendment gave plaintiffs exactly what they sought equal treatment 76 166 Wis. 2d 501, 480 N.W.2d 460 (1992). 77 See id at 501; Id at 462; Id 78 878 F. Supp. 1209 (E.D. Wis. 1995). 79 See id at 1212. 80 See id at 1216. 81 See Wis. Stat. Ann. § 119.23 (2001).

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31 of secular and sect arian private schools under the state's funding program. The court dismissed the litigation as moot. 82 The amended MPCP was challenged as a violation of the Establishment Clause and the Equal Protection Clauses of the U. S. Constitution and several provisio ns of the Wisconsin Constitution in circuit court. In 1996, the Wisconsin Supreme Court considered the case, split three three over the constitutionality of the amended MPCP, and the case was remanded to the Dane County Circuit Court for further proceeding s. 83 In January 1997, the circuit court held that the amended MPCP violated the religious benefits and compelled support clauses of the Wisconsin Constitution, 84 the public or local bill prohibitions of the Wisconsin Constitution, 85 and the public purpose doc trine as the program applied to sectarian schools. The circuit court also found that the amended MPCP did not violate the uniformity clause of the Wisconsin Constitution 86 or the public purpose doctrine as it applied to the nonsectarian private schools. Sin ce the circuit court invalidated the amended MPCP on state constitutional grounds, the court did not address the question whether the program violated the Establishment Clause. The Wisconsin Court of Appeals affirmed the lower court ruling, and the state a ppealed to the Wisconsin Supreme Court. In Jackson v. Benson 87 the Wisconsin Supreme Court reversed the lower court rulings and upheld the constitutionality of the voucher program under the U. S. and Wisconsin Constitutions. 82 Miller v. Benson 878 F. Supp. 1209, 1216 (E.D. Wis. 1995), vacated as moot 68 F.3d 163 (7 th Cir. 1995). 83 State ex rel. Thompson v. Jackson 199 Wis. 2d 714, 720, 546 N.W.2d 140 (1996) (per curiam). 84 Wis. Const. art. I, § 18 85 Wis. Const. art. IV, § 18 86 Wis. Const. art. X, § 3 87 218 Wis.2d 835, 578 N.W.2d 602, cert. den. 525 U.S. 480 (1998).

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32 The court ruled that the amen ded Milwaukee Parental Choice Program (MPCP) does not violate the federal Establishment Clause or state provisions of the Wisconsin Constitution. 88 Justice Donald W. Steinmetz, writing for the majority, found "the amended MPCP does not violate the Establish ment Clause because it has a secular purpose, it will not have the primary effect of advancing religion, and it will not lead to excessive entanglement between the state and participating sectarian private schools." 89 The Wisconsin Supreme Court relied on Agostini v. Felton 90 (a U. S. Supreme Court ruling permitting Title I aid to disadvantaged parochial school students at religious schools) to uphold the program's inclusion of religious schools. 91 When considering the state establishment clause, the Wisconsi n Supreme Court found the amended 92 93 of the Wisconsin Constitution. The decision was appealed to the U. S. Supreme Court but the Court declined to review Jackson v. Benson 94 The result of the decision is that participation of religious schools in MPCP was constitutional and remains the law in Wisconsin. 88 Wis. Const. art. I § 18. 89 Jackson v. Benson 578 N.W.2d 602 (Wis. 1998) citing Lemon v. Kurtzman 403 U.S. 602, 612 (1971). 90 521 U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997). 91 In 1995, as part of the biennial budget bill, the Wisconsin legislature amended the original MPCP (Wis. Act 27, §§ 4002 4009). The legislature removed from Wis. Stat. § 119.23(2)(a) the limitation that participating private schools be "nonsectarian" ( Wis. Act 27, § 4002). 92 ivalent of the Establishment Clause of the First Amendment) provides: 93 be compelled to attend, erect or support any place of 94 Jackson v. Benson 119 S.Ct. 466, 142 L.Ed.2d 419 (1998), noting that Justice Breyer would have granted certiorari.

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33 Florida Opportunity Scholarship Program In 1999, Florida enacted the Opportunity Scholarship Program (OSP), 95 96 As t he first program to tie private school choice with public school accountability, the voucher program was designed for students in failing public schools statewide and was not limited to low income families. Annually, all Florida public schools receive a le tter grade based on student academic performance. 97 A failing public school is defined by the state as one that receives two grades in any four year period. 98 Children who attended a failing public school were eligible to use the voucher to attend a private or higher performing public school. A student who attended a higher performing public school could use the voucher through the twelfth grade. A student who attended a private school could use the voucher until the student return ed to public school, completed a K 8 private school program, or began high school and the school to which the student was assigned received at least Participating private schools were required to accept the voucher amount as full payment of a select students if student applications exceed available spaces. Voucher schools were obligated 95 Fla. Stat., Title XVI, Cha pter 229.0537 (2001); Fla. Stat., Title XLVIII, Chapter 1002.38 (2005). 96 Fla. Stat. § 229.0537(1) (1999). 97 Fla. Stat., Title XLVIII, Chapter 1008.34 (2005). 98 Id at Chapter 1008.33 (2005).

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34 to adopt control and accountability measures to ensure that th satisfied. In the 1999 2000 school year, 143 students out of approximately 900 eligible students chose vouchers. 99 Fifty eight enrolled in participating private schools and eighty five enrolled in other higher performing p ublic schools. Of the five participating private schools in the 1999 2000 school year, four were religious and one was secular. 100 In 1999, shortly after legislation was enacted school voucher opponents claimed the OSP violated the Establishment Clause of th e First Amendment to the U. S. Constitution, as well as three provisions of the Florida Constitution. 101 While the litigation was preceding opponents withdrew the First Amendment claim. 102 Aid hat the OSP violated Article 1, Section 3 of the Florida Constitution that taken from the public treasury directly or indirectly in aid of any church, sect, o r religious Constitution which requires Florida to adequately provide and high quality system of free public schools that allows students to obtain a high quality 99 Publicly Funded Programs in Cleveland and http://www.gao.gov/new.items/d01914.pdf (last visited July 9, 2007) 100 Id 101 The following groups filed suit: People For the American Way Foundation, National Education Association (NEA), American Jewish Congress, and other organizations. 102 This claim was dismissed after the U. S. Supreme Court ruled in Zelman v. Simmons Harris 536 U.S. 639 (2002) that a similar voucher program (Cleveland Scholarship and Tutoring Program) did not violate the U. S. Constitution.

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35 103 The third count involved Article IX, Section 6, which required the State School Fund be used only to support p ublic schools. 104 In March 2000, the Leon County Circuit Court 105 held that the scholarship program 106 The state appealed an action that, under Florida law, automaticall y stayed the court's ruling. The students currently in the voucher program were permitted to finish out that school year in their voucher schools. The First District Court of Appeals for the State of Florida heard oral arguments on August 16, 2000, and rev ersed the trial court on October 3, 2000 107 The court held Legislature from a llowing the well delineated use of public funds for private school education, 108 The court adequate 109 The First District declined to address the other constitutional issues raised and remanded the case back to the trial court level for further proceedings 110 103 The Leon County Circuit Court (trial court) held that the OSP did violate Article IX, Section 1. The First Di strict Court of Appeal subsequently reversed the ruling. 104 This claim was of little significance since the OSP was funded from other state sources. 105 Bush v. Holmes, 767 So.2d 668, 672 (Fla. Dist. Ct. App. 2000). 106 Fla. Const. art. IX, § 1. 107 Bush v. Holme s 767 So. 2d 668 (Fla. Dist. Ct. App. 2000). 108 Id at 675. 109 Id 110 Id at 677.

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36 111 The court declined to review sending the case back to the trial court for resolution of the other federal and state c onstitutional issues. In funding of a religious institution, referred to as the no aid provision. 112 The state appealed the ruling to the First District Court of Appeals. The decision was stayed and the program was allowed to continue during appeal. that the 1 decision. 113 The state moved for a rehearing of the case by the full fifteen member appellate court. In November 2004, the full First District Court of Appeals, in an 8 5 1 d ecision, held that the Opportunity Scholarships Program violated the no aid provision of the Florida Constitution. 114 The court concluded that the Florida Constitution is more restrictive than the Establishment Clause in the U. S. Constitution. 115 Therefore, e ven if the Florida voucher program were constitutional under the Establishment Clause as interpreted in Zelman, it conflicts 116 The 111 Holmes v. Bush 790 So. 2d 1104 (2001) (unpublished table decision). 112 Holmes v. Bush, No. CV99 3370, 2002 WL 1809079 (Fla. Cir. Ct. Aug. 5, 2002). 113 Bush v. Holmes 29 Fla. L. Weekly D1877 (Fla. 1 st Dist. Ct. App., Aug. 16, 2004). 114 Bush v. Holmes 886 So. 2d 340 (Fla. 1 st Dist. Ct. App. 2004) (Holmes II). 115 Id., at 346 47 and footnotes 7 and 8 at 67 constitutions, wh 116 Id.

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37 court reviewed the legislative histor intent was to impose greater restrictions than the Establishment Clause. 117 Relying on the no aid provision, the court rejected successful arguments made on behalf of voucher programs in other state s. 118 The court rejected voucher proponents argument that the 119 no a institutions, such an indirect path for the aid does not remove the OSP from the restrictions of the no 120 Additionally, the court rejected the arg ument that the OSP does not benefit religious schools or only provides incidental benefits. 121 The majority held that Opportunity Scholarships were unconstitutional aid to religious schools, rather than aid to students who chose where to use their scholarsh including the religious component, is advanced and enhanced by the additional, financial support 117 Id., at 349 10. 118 See Jackson v. Benson, 578 N. W.2d at 876 884. The Wisconsin Supreme Court held that paying aid directly to parents rather than the sectarian school satisfied the no aid (i.e. constitution.; Bush v. Holmes 886 So. 2d at 359 on. First, the Wisconsin provision lacks a prohibition on both direct and indirect benefits. Second, the prohibition in the aid 119 Bush, at 350 351. 120 Id. 121 See Jackson religious program, but

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38 received through operation of the OSP 122 Therefore, the OSP was unconstitutional b ecause religious schools received state aid. wish to remove or lessen the restrictions of the no aid provision, they can do so by constitutional amendment." 123 As req uired by law, the court certified the constitutional question for further 124 On June 7, 2005, the Florida Supreme Court heard oral arguments on the constitutio nality. Aid Provision 125 and the education provision. 126 On January 5, 2006, the Florida Supreme Court held the Opportunity Scholarship Program (OSP) violated the language under Article IX of th e Florida Constitution. 127 Chief Justice Barbara Pariente, writing for the majority, stated the OSP violated It diverts public dollars into separate private systems parallel to and in competition with the free p ublic schools that are the sole means set out in the Constitution for the state to hen compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education i n direct violation of the constitutional mandate for a uniform system of free public schools. 128 122 Bush v. Holmes at 351. 123 Id. 124 Bush v. Holmes, 886 So. 2d at 344. 125 Fla. Const. art. I, § 3. 126 Fla. Const. art. IX, § 1. 127 Bush v. Holmes, 919 So. 2d 392 (Fla. 2006). 128 Id. at 398 408.

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39 The court found it unnecessary to rule regarding the separation of church and state in the Florida Constitution question after finding OSP violates the public ed ucation provision. The Florida Supreme Court ruling is final and cannot be appealed to the U. S. Supreme Court since no federal issues were involved. At this time, it is unclear whether the OSP ruling offers a legal ucher program. The John M. McKay Scholarship for Students with Disabilities Program 129 is a separate scholarship program and distinct from the Opportunity Scholarship Program. Parents of a public school student with a disability who are dissatisfied with the ir child's progress may request and receive from the state a scholarship for their child to enroll in another Florida public school or an eligible private school. Students with special needs include those who are mentally handicapped, speech and language i mpaired, deaf or hard of hearing, visually impaired, dual sensory impaired, physically impaired, emotionally handicapped, specific learning disabled, hospitalized or homebound, or autistic. McKay Scholarship recipients must have spent the prior school y ear in attendance at a Florida public school. The parents must also obtain admission of their child to an eligible private school and notify in writing the school district of the request for a scholarship at least sixty days prior to the date of the first scholarship payment. Parents may choose, as an alternative, to enroll their child with special needs in and transport their child to a public school in an adjacent school district which has available space and has a program with the services agreed to in t he student's individual education plan (IEP). The maximum scholarship granted for an eligible student with disabilities is the calculated amount equivalent to the base student allocation in the Florida Education Finance Program 129 Fla. Stat., Title XVI, Chapter 229.05371(2001).

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40 (FEFP) multiplied by the app ropriate cost factor for the educational program that would have been provided for the student in the district school to which he or she was assigned, multiplied by the district cost differential. In addition, a share of the guaranteed allocation for excep tional students is added to the calculated amount. The scholarship amount is the lesser of either the calculated amount or the amount of the private school's tuition and fees. Any assessment fee required by the participating private school may be paid from the total amount of the scholarship. In 1999, the initial pilot program capped participation at 5 percent of eligible enrollment. In 2000, the program was expanded statewide and the cap was removed. Senate Bill 1180, passed and signed in 2001, significan tly expanded the program. In 2004 2005, 15,910 students received scholarships averaging $6,117 per student to attend participating nonpublic schools. In 2004 2005, 703 nonpublic schools participated in the program. At this time, the McKay Scholarship has not been challenged in the courts. Town Tuitioning Voucher Programs For over 100 years informal voucher plans have existed in rural Vermont 130 and Maine. 131 Town tuitioning allows families living in districts that do not own and operate elementary or secondar y schools to send their children to public or non sectarian private schools in other areas 130 Vt. Title 16, Part 2, Chapter 21, § 822 which permits public school students residing in a school dis trict without a 131 Me. Free High School Act of 1873, which allowed public school students residing in a town without a publi c high school to attend private high schools at state and district expense; Sinclair Act of 1957, which undertook a systematic program of school consolidation aimed at reducing the number of smaller school districts throughout the state.

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41 s duty to provide a free public education. 132 Since 1869, Vermont statutes have authorized school districts to provide high school education to its students by paying tuition for nonpublic schools selected by their parents. 133 In 1961, the Vermont Supreme Co urt held that the inclusion of religious schools in voucher program violated the First Amendment but not the state constitution. 134 In 1994, the Vermont Supreme Court overruled the prior decision and concluded that the Establishment Clause of the U. S. Const itution was not a constitutional barrier to public funds, in the form of tuition, being paid to religious schools. 135 In 1999, the Vermont tuition program was challenged on both state and federal grounds in Chittenden Town School District. v. Department of E ducation 136 In June 1999, the Vermont Supreme Court held that providing tuition assistance for religious schools would violate the Vermont Constitution. 137 The court based its decision on the Compelled Support Clause of the Vermont Constitution which pertaine d to state support of religious worship. 138 T he crucial factor in the Vermont decision was the wording of the state constitution: "[N]o person ought to, or of right can be, compelled to attend any religious worship, or erect or support any place of worship 139 Employing that clause, the Court held that the tuition 132 Me. Rev. Stat. t it. 20 A, § 1001. 133 See 16 Vt. Stat. Ann. §§ 822 and 824. 134 Swart v. South Burlington Sch. Dist. 122 Vt. 177, 167 A.2d 514 (1961). 135 Campbell v. Manchester Board of School Directors 161 Vt. 441, 641 A.2d 352 (1994). 136 Chittenden Town School District v. Vermont Department of Education (97 275); 169 Vt. 310; 738 A.2d 539 (1999). 137 Id. at 546. 138 Vt. Const. Ch. I., art. 3. 139 Id

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42 program must be limited to nonreligious schools. But the Court stated, "we conclude that the Chittenden School District tuition payment system, with no restrictions in funding religious educati on, violates (the Vermont Constitution). The major deficiency in the system is that there are no restrictions that prevent the use of public money to fund religious education We decide only that the current statutory system, with no restricti ons on the purpose or use of the tuition funds violates Article 3." 140 In December 1999, the U. S. Supreme Court, without comment, declined to hear an appeal from families of students seeking to attend religious schools. 141 In Maine, families who reside in dis tricts without a public school may send their children to a public school in a neighboring school district or receive reimbursement from the town for the cost of tuition to send their children to approved nonreligious private schools within or outside of t he state. 142 The town is partially or fully reimbursed for the expense by the state. The maximum allowable reimbursement is $6,305. 143 If a private school enrolls 60 percent or more publicly funded students, the school must participate in the statewide asse ssment program, which includes administration of the Maine Educational Assessment. Religious school tuition was funded by local and state government until the law was changed in 1983. Public funds may still be used to pay for busing, textbooks, and specia l educational services at religious schools. The legislation excluding religious schools was challenged in two separate cases, one suit in state courts of Maine and one in federal court. 144 In 140 Chittenden at 562 563. 141 Andrews v. Vermont Department of Education 120 S.Ct. 626 (1999). 142 Me. Rev. Stat. Ann. Tit. 20 A 117 § 2951. 143 Me. Rev. Stat. Ann. Tit. 20 A 219 § 5804 (tuition allowed for elementary school students) and Me. Rev. Stat. Ann. Tit. 20 A 219 § 5806 (tuition allowed for secondary school students). 144 Bagley v. Raymond Sch. Dept ., 728 A.2d 127 (Me. 1999); Strout v. Albanese 178 F.3d 57 (1 st Cir. 1999).

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43 us schools as a violation of the Free Exercise Clause of the Establishment Clause and the Equal Protection Clause under the Fourteenth Amendment. In both decisions the respective courts determined that the program's exclusion of religious schools does not violate the Free Exercise Clause or the Equal Protection Clause of the U. S. or Maine Constitution. In October 1999, the U. S. Supreme Court, declined to 145 Ohio Pilot Project Scholarship Prog ram In 1995, the Ohio legislature enacted the Ohio Pilot Project Scholarship Program to help failing school districts. 146 The program provided up to $2,250 in tuition and up to $360 in tutorial aid to low income families. The recipient families must reside i n a school district that is under a federal court order giving the state superintendent of public instruction administrative control of that district. 147 The program allows private schools including religious schools in the affected district and public schoo ls in adjacent districts to participate. 148 Participating private schools can charge lowest income families a maximum $250 tuition co payment. 149 The program allows other families to receive 75 percent of private school tuition up to a maximum of $1,875, witho ut any co payment limit, and tutoring aid if the scholarship fund is not exhausted. 150 145 Bagley v. Raymond Sch. Dept ., 120 S. Ct. 364, 145 L. Ed .2d 285 (1999); Strout v. Albanese 120 S.Ct. 329, 145 L.Ed.2d 256 (1999). Bagley v. Raymond Sch. Dept ., 728 A.2d 127 (Me. 1999), cert. denied 528 U.S. 94 7 (1999). 146 Ohio Rev. Code Ann. §§ 3313.974 3313.979 (Baldwin Supp. 2001). 147 Id at 3313.975 (A). 148 Zelman v. Simmons Harris 536 U.S. at 645. 149 Id. at 647. 150 Id.

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44 At the time of enactment, the Cleveland Municipal School District was the lone district under a federal court order giving district control to the state superintendent. Th e court issued the order in response to an acutely high student failure and dropout rate discovered as a result of a district performance audit. In the 1999 participated in the voucher program, 82 perc ent of participating schools were religiously affiliated, 96 percent of participating students attended private religious schools, and 60 percent of participating students came from families living below poverty level. 151 The fifty six participating private mostly religiously affiliated schools are prohibited from discriminating based on religion and must agree not to teach hatred of any individual or group based on religion. The state superintendent, who is appointed by the state board of education compose d of both elected and appointed members, is authorized to establish admission rules and procedures for participating schools. The voucher program is part of a broader Cleveland school district initiative to improve school choice that includes community and magnet schools which receive two and three times the amount of funding available to private schools participating in the voucher program. The Cleveland voucher program permitted religious schools to participate from its inception and as a result the progr state court phase of litigation, the Ohio Supreme Court upheld the constitutionality of the under the Establishment Clause. 152 Before being appealed to the U. S. Supreme Court, the Sixth Circuit Court of Appeals struck down the Cleveland voucher program as a violation of the 151 Id. 152 Simmons Harris v. Goff 711 N.E.2d 203 (Ohio 1999).

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45 federal Establishment Clause. 153 In 2001, the State of Ohio requested that the U. S. S upreme Court review the case. The Bush administration via the Attorney General filed an amicus brief supporting the request. On September 25, 2001 the U. S. Supreme Court agreed to hear the Zelman v. Simmons Harris case. 154 The Court accepted three petition s for review but consolidated them into a single case. 155 The Cleveland voucher program, which enrolls approximately 3,700 students from kindergarten through eighth grade, continued to operate pending the appeal process. On June 27, 2002, the U. S. Supreme C ourt held that the Ohio Pilot Project Scholarship Program does not violate the Establishment Clause. Tuition Tax Credits/Deductions Education tax credits/deduction are policy instruments that use the tax system to support school choice. In general, tax cre dit programs either allow families to receive a direct tax deduction for private school tuition or allow individuals and/or corporations to receive a tax deduction for contributions to private scholarship organizations that in turn subsidize all or part of Educational tax credits are a direct reduction in tax liability for educational expenditures. The amount of the credit and which educational expenses qualify is determined by the state legislature. Tax deductions allow for certain educational expenses to be deducted from taxable income prior to the calculation of tax liability. 153 Simmons Harris v. Zelman, 234 F.3d 945 (6 th Cir. 2000). 154 Zelman v. Simmons Harris 536 U.S. 639 (2002). 155 Id

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46 The following seven states: Arizona, 156 Florida, 157 Illinois, 158 Iowa, 159 Minne sota, 160 Pennsylvania, 161 and Rhode Island, 162 offer tax credits for private s chool tuition or tax deduc tions for education expenses or contributions to scholarship programs. These tax credit or deduction programs for private school tuition have been adopted through legislative acts and not through ballot initiatives. Many school c hoice proponents view these options as more able to withstand legal challenges. Arizona's tuition tax credit program was upheld by the state Supreme Court and in federal courts despite a strict Blaine amendment to the state Constitution. 163 The Arizona Tuit ion Tax Credit Law was signed into law in 1997. 164 Residents of Arizona who donate to charitable organizations that provide scholarships to private or religious schools receive a nonrefundable tax credit of up to $500 for individuals and $625 for married cou ples. Additionally, residents of Arizona who pay fees for, or donate to, public school extracurricular activities or character education programs, receive a nonrefundable tax credit of up to $200 for individuals and up to $250 for married couples. 165 The a mount of credit is equal to the amount paid or donated and may be carried forward for no more than five consecutive years. This 156 A.R.S. § 43 1089. 157 Fla. Stat. § 220.187. 158 35 ILCS 5/201 (m). 159 I.C.A. § 422.12(2). 160 Minn. Stat. § 290.0674. 161 24 P.S. §§ 20 20005 B, 20 2006 B, & 20 2007B. 162 R.I. Gen Laws § 44 62 1. 163 Kotterman v. Killian 193 Ariz. 273, 972 P.2d 606 (Ariz. 1999), cert. denied 528 U.S. 810 (1999). 164 A § 43 1089. 165 A § 43 1089.01.

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47 contribution cannot directly benefit the taxpayer's own child, and tuition organizations cannot designate the money to benefit s tudents of only one private or parochial school. The Florida Corporate Tax Credit Scholarship Program was enacted in 2001. 166 The purpose of the statute was to encourage private, voluntary corporate contributions to nonprofit scholarship funding organizatio ns that help low income families provide educational choice for their children. A business may not contribute more than $5 million to any single organization and the credit may not exceed 75 percent of the tax due for the taxable year. The initial $50 mil lion cap on the total credit granted throughout the state was raised to an $88 million cap in the 2003 legislative session. At least 5 percent of the total statewide amount authorized for the tax credit is reserved for small business contributions. Studen ts who are eligible for free or reduced lunches are qualified to receive a scholarship of as much as $3,500. At least 75 percent of scholarship funding given for use in a nonpublic school must be used for tuition. The remainder may be used for textbooks or transportation. Scholarships of as much as $500 may be given for use in a public school for transportation expenses to a school outside of the district in which the student resides. In 2004 2005, 10,473 students received scholarships to attend any of the 973 participating nonpublic schools through the corporate tax credit donations. The Illinois Education Expense Credit was signed into law in 1999. 167 It permits a parent, adoptive parent, foster parent, or legal guardian to claim a tax credit of up to 2 5 percent of education related expenses, such as tuition, books, and lab fees that exceed $250. The maximum amount of credit is $500, for educational expenses in any public, private secular or religious school, or home school that satisfies the Illinois S chool Code and is in compliance with Title VI 166 Fla. Stat. § 220.187 (2001). 167 35 Ill. Comp. Stat. 5/201 (m).

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48 of the Civil Rights Act of 1964. A bill was introduced in January 2005 to increase the existing education expense tax credit from $500 to $1000 per year but, it failed to pass. In June 2006, Iowa Governor Tom V ilsack signed into law the School Tuition Organization Tax Credit Act. 168 The Iowa legislature approved Senate File 2409 which established an income tax credit equal to 65 percent of cash contributions made to the nonprofit School Tuition Organization (STO). 169 The donor cannot designate the contribution to be used for the direct benefit of any dependent or any other student. If the tax credits received by the donor exceed their tax liability for the year, the credit may be carried forward for up to five years. School tuition organizations must be exempt from federal taxation, prepare annual reviewed financial statements, and must allocate at least 90 percent of the annual revenue in tuition grants. These organizations must only provide tuition grants to eligibl e students who are Iowa residents and must not limit tuition grant availability to only students of one school. For students to be eligible for the tuition grants, household income cannot exceed more than three times the federal poverty level. A qualified school must meet the state accreditation rights laws. The tax credits are limited to a $2.5 million impact on the general fund for tax year 2006 and $5million for tax year 2007 and each year thereafter. In 2004, Governor Vilsack vetoed a similar tax credit bill that contained no restrictions on the impact of the credit to the state general fund. According to guidelines set by the legislature, the Department of Reven ue determines the amount of the tax credit certificates that school tuition organizations are able to provide its donors. 168 I.C.A. § 422.12(2). 169 Senate File 2409. Available at http://coolice.legis.state.ia.us/Legislation/Enrolled/SF2409.html

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49 The Minnesota Education Credit was enacted in 1997 and it was expanded in 1999 to increase the maximum income level for eligibility. 170 Currently, families with an income no greater than $33,500 may receive a tax credit for 75 percent of educational expenses, excluding tuition, as much as $1,000 per student with a $2,000 family maximum. There is a reduced maximum credit for families wit h income falling between $33,500 and $37,500. The credit may be claimed by families that do not pay income tax. Qualifying expenses include: tutoring by a qualified instructor, transportation fees, academic books and materials for nonreligious school cla sses, musical instrument rental fees, music lessons by a qualified instructor, computer hardware and educational software as much as $200, after school enrichment programs, and summer camp tuition focused on academics or the fine arts. The education deduc tion may be used for expenses exceeding the credit. In 2001, the Pennsylvania General Assembly passed House Bill 996 which amended Public School Code of 1949 (P.L. 30, No.14) and established the Educational Improvement Tax Credit (EITC). 171 This legislation permitted corporations to receive a tax credit of 75 cents for every dollar invested up to $200,000 or 90 percent of the donation if the corporation donation was a two year commitment. 172 Under this legislation, the total tax credits distributed by the state in any year could not exceed $30 million ($20 million to nonprofit scholarship organizations to fund public or private school scholarships and the remaining $10 million for innovative educational programs in public schools). In 2003, Governor Rendell sign ed Act 48 (Senate Bill 180) which included the creation of a preschool scholarship program 173 and House 170 Minn. Stat. 290.0674 (2005). 171 Act 4 (H.B. 996, P.N. 1878, Session 2001). 172 24 P.S. § 20 2005 B(a b). 173 24 P.S. § 20 2003 (B) (C) (1 3).

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50 Bill 564 that included additional money for the EITC. 174 In 2005, House Bill 628 established a statewide cap of $44 million in tax credits permitted in a fi scal year ($29.3 million for donations to school tuition organizations to fund nonpublic schools and $14.7 million for educational improvement organizations and programs for public schools). 175 In June 2006, the newest tax credit law was passed by the Rhode Island General Assembly and signed into law by Governor Donald Carcieri. 176 The Tax Credits for Contributions to Scholarship Organizations takes effect as of January 1, 2007. Rhode Island businesses may make donations to scholarship organizations that provid e low income students tuition assistance grants to attend qualified nonpublic schools. The business tax credit is not to exceed $100,000 in any tax year. The total amount of credits the state allows is capped at $1 million. 177 Each scholarship organization m ust be a nonprofit and must allocate at least 90 percent of its annual revenue to scholarships. The business donor may not designate the scholarship to a specific student or school. The bill does not prescribe the amount of the scholarship but does require the scholarship organization to report to the state the number of scholarships distributed per school, the dollar range of scholarships, and a description of all criteria used by the organization in determining to whom scholarships were awarded. 178 174 24 P.S. § 20 2001 (A). 175 24 P.S. § 20 2003 (A) (1). 176 H7120A Article 24 Sub A as amended (§ 44 62 1). Available at http://www.rilin.state.ri.us/BillText/BillText06/HouseText06/Article 024 SUB A as amended.pdf 177 Id 178 Id

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51 Statemen t of the Problem The introduction of school voucher legislation has resulted in constitutional challenges in many states. 179 State and lower federal courts have reached conflicting decisions on the constitutionality of school voucher programs that include re ligious schools. At the federal district court level, vouchers were found to violate the Establishment Clause. 180 But three state supreme courts upheld school vouchers, or similar programs, in the face of Establishment Clause challenges. 181 In the absence of a uniform national standard, these court decisions provided mixed signals to policymakers concerning what constitutes permissible public aid to religious schools. The dividing line between permissible and impermissible aid was not clearly defined. Prior to accepting the Zelman v. Simmons Harris 182 case, the U. S. Supreme Court Justices declined to hear appeals arising from litigation concerning other school choice program appeals. 183 Considerable attention was focused on Zelman because the Court's rationale woul d have significant implications for other states considering any type of state aid to religious schools. If, in reaching the Zelman decision, the U. S. Supreme Court had concluded that the Ohio plan unconstitutionally advances religion, the national school voucher movement might 179 See Strout v. Albanes 178 F.3d 57 (1 st Cir. 1999); Bush v. Holmes 767 So. 2d 668 (Fla. Dist. Ct. App. 2000); Bagley v. Raymond Sch. Dist., 728 A.2d 127 (Me. 1999); Jackson v. Benson, 578 N. W.2d 602 (Wis. 1998). 180 See Simmons Harris v. Zelman 54 F. Supp. 2d 725, 730, 741 42 (N.D. Ohio 1999), stay granted 528 U.S. 983 ( 1999); Simmons Harris v. Zelman 72 F. Supp. 2d 834, 864 65 (N.D. 1999), 234 F.3d 945, 961 (6 th Cir. 2000), Nos. 00 3055, 3060, 3063, 2001 U.S. App. LEXIS 3344, at *1 (6 th Cir. Feb. 28, 2001); Miller v. Benson 878 F. Supp. 1209, 1216 (E.D. Wis. 1995), vacated as moot 68 F.3d 163 (7 th Cir. 1995); Strout v. Albanese 178 F.3d 57, 64 (1 st Cir. 1999), cert denied 528 U.S. 931 (1999). 181 See Jackson v. Benson 578 N.W.2d 602, 620 (Wis. 1998); Simmons Harris v. Goff 711 N.E.2d 203, 211, 214 (Ohio 1999); Kotterman v. Killian 972 P.2d 606, 616 (Ariz. 1999), cert. denied 528 U.S. 810 (1999), and cert. denied 528 U.S. 921 (1999). 182 Zelman v. Simmons Harris 536 U.S. 639 (2002). 183 See Jackson v. Benson 578 N.W.2d 602 (Wi s. 1998), cert. denied 525 U.S. 997 (1998); Bagley v. Raymond Sch. Dept ., 728 A.2d 127 (Me. 1999), cert. denied 528 U.S. 947 (1999); & Andrews v. Vermont Department of Education 120 S.Ct. 626 (1999).

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52 have been severely stalled. Alternatively, if the Court upheld the Ohio voucher plan as it has, this could encourage other states to experiment with various types of voucher systems. 184 The U. S. Supreme Court held that the Cleveland Scholarship and Tutoring Program (CSTP) did not violate the Establishment Clause of the U. S. Constitution because the program was enacted for a valid secular purpose, is neutral with respect to religion, permits participation of various types of schools, and provides assistance directly to a broad class of citizens who direct aid to religious schools as a result of their independent and private choice. As a result of the Zelman decision the federal constitutional roadblock for legislatures that want to pa ss voucher legislation was removed, but this does not rule out challenges under state constitutions. Approximately three dozen states have establishment clauses that are more restrictive than the federal guarantee, with some constitutional clauses specific ally banning states from giving money to religious schools. State constitutions also contain language guaranteeing uniform public education, and vouchers could be challenged on that ground. In the future, the constitutionality of school vouchers will be li tigated state by state. Purpose of the Study The purpose of this study was to trace the school voucher movement in the United States, specifically examining the Ohio Pilot Project Scholarship Program and subsequent legal challenges that culminated in the U Zelman v. Simmons Harris decision. First, policy trends supporting the school voucher movement were examined to determine which policy arguments the U. S. Supreme Court found persuasive in Zelman Secondly, this research summarized U. S. Supreme Court Establishment Clause standards with regard to public aid for religious schools traced the shift in U. S. Supreme Court Establishment Clause doctrine, and 184 See http://www.rethinkingschools.org/special_reports/voucher_report/vdeba.shtml

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53 described all pertinent judicial decisions the Court found applicable in Zelman Nex t, a review of litigation was presented pertaining to the Cleveland Voucher Program. Finally, this study reviewed recent state school voucher legislation involving the constitutionality of state restrictions of voucher programs, and decisions on voucher an d voucher related programs that were handed down since the Zelman v. Simmons Harris decision. Significance of the Study Legislative actions at the federal and state levels have proposed a variety of voucher plans that have resulted in legal challenges. The legal battles center on the constitutionality of the use of public funds to support religious schools. The Zelman v. Simmons Harris case provides educational policymakers with a current understanding of the federal dividing line between permissible and im permissible public aid to religious schools. This analysis enables educational leaders to interpret, anticipate, and effectively plan for changes in urban public schools resulting from school vouchers that permit public aid to religious schools. Method of the Study In order to determine the constitutional principals the U. S. Supreme Court applied in Zelman v. Simmons Harris traditional legal research methods were utilized to examine and analyze the permissible use of publicly funded vouchers to support re ligious schools. Legal form of historical 185 Legal research involves a systematic investigation of le gislation and court cases in order to interpret those laws and cases and arrive at understanding. 186 This study relies heavily upon legal 185 Research That Makes a Difference: Complimentary Methods For Examining Legal Issues in Education Topeka, KS: National Organization on Legal Problems of Education, 1996, 33. 186 Id at 33 34.

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54 authorities. The main types of legal authorities are primary and secondary. Primary authorities are further divided into two categories: mandatory and persuasive. Primary mandatory authority for the decisions of the U. S. Supreme Court is the U. S. Constitution, and for the purposes of this study, specifically the Establishment Clause of the First Amendment. Persuasive auth orities for the U. S. Supreme Court are all of its prior decisions in cases interpreting the Establishment Clause. These decisions form the precedent for later decisions. 187 Primary authority states the law and is issued by a branch of the government or a g overnmental body. 188 Sources of primary authority can be statutes, executive decrees, administrative regulations, or judicial opinions. Statute comes from the Latin term statutum that eate law and represent the determine the constitutionality of each statute, if challenged. 189 Next, the research identified federal and state court cases in volving the Ohio school voucher legislation between 1995 and 2002. Case law is judge made or enunciated by the courts and differs from laws that originated in the legislature. 190 In legal research, mandatory primary sources of authority are those that a cour t must follow, while persuasive authorities are those that a court may follow. For example, U. S. Supreme Court decisions are mandatory authority for 187 See Henry C ampbell Black. St. Paul, MN.: West Publishing Company, 2004. Stare decisis is defined as adherence to precedent. When the court has made a declaration of legal principle, it is the law until changed by a competent authority. 188 C. L Kunz, D. Schmedemann, M. Downs, and A. Bateson. The Process of Legal Research: Successful Strategies 4 th ed. Aspen Publishers, 1996. 189 Kern Alexander and M. David Alexander, American Public School Law 2 5th ed. St. Paul, MN.: West Publishing Company, 200 0. 190 Id

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55 lower federal and all state courts in the United States, while decisions in one of the Federal Circuit Cou rt of Appeals decisions would only be persuasive in other circuit courts. Secondary authority is anything other than primary authority that a court could use as a basis for decision. Law reviews, educational articles, legal encyclopedias, and relevant cita tions from judicial decisions were consulted for commentaries and interpretation of the law. Relevant cases were identified through recognized legal research sources such as court reporters and LexisNexis computer searches. Data Analysis To determine the s ignificance for such research, a search was made of school voucher legal issues. Once pertinent U. S. Supreme Court, federal, and state cases were identified, inductive analysis was used to analyze the precedence represented in case law. The legal issues w ere then subjected to comparative analysis. Such analysis compared similarities and differences in constitutionally permissible aid to religious schools to previous U. S. Supreme Court cases. The ique situations, or the beginning of a 191 The Limitations The scope of this study focused on the constitutionality of the Ohio Pilot Project Scholarship Program in the U. S. Supreme Court case of Zelman v. Simmons Harris. This study analyze d only relevant cases in state court, federal courts, and U. S. Supreme Court decisions on constitutional issues affecting public aid to religious schools and vouchers. This study was also limited to examining the legislation enacted, the litigation that l ed to and resulted from this legislation, and the implications for educational leaders. It was beyond the 191 J. H. McMillan and S. Schumacher. Research in Education: A Conceptual Introduction New York, NY: HarperCollins, 1989.

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56 scope of this dissertation to explore the effectiveness of school voucher programs or their implications in terms of school finance. The Delimitations The delimitation of the study was that in researching existing publicly funded school voucher legislation, no attempt was made to examine pending publicly funded school voucher legislation. Additionally, no attempt was made to examine privately funded vou cher programs because they function outside the public policy arena and do not use tax dollars or require direct involvement of federal, state, and local policymakers. Organization of the Study The opening chapter introduced school vouchers as an education al policy and presented an overview of existing public school voucher plans in the United States. It presented the organization and research methods used in this legal study. Chapter Two examined the policy trends behind the school voucher movement and pr esented leading policy arguments on both sides of the school voucher controversy in regards to the constitutionality of voucher programs that provide public aid to religious schools. Chapter Three provided a history of the U. S. Supreme Court's Establishme nt Clause jurisprudence, from Everson v. Board of Education of Ewing Township 192 to the Mitchell v. Helms 193 decision. Chapter Four described the Ohio Pilot Project Scholarship Program, traced the Zelman v. Simmons Harris lawsuit through the federal and state courts to the U. S. Supreme Court, and summarized the U. S. Supreme Court opinion in Zelman Chapter Five, the concluding chapter, briefly reviewed school voucher legislation at the federal and state level since the Zelman decision The final chapter ident ified that school 192 330 U.S. 1 (1947). 193 530 U.S. 793 (2000).

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57 vouchers as educational policy is the responsibility of the state legislature and state supreme courts. Recommendations for further study based on the research were also made.

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58 58 CHAPTER 2 SCHOOL VOUCHERS AS P UBLIC POLICY Introduction Pu blic elementary and secondary schools are never isolated from the rest of society. Trends in school reform generally occur in response to a particular societal need. This pressing need is typically expressed in a well defined social movement that results i n legislation or judicial decisions. Whether the social challenge is population change, technological advancement, national security, political shift, race relations, poverty, or social transformation, public schools are viewed as part of both the problem and the solution. Interaction with many other social institutions, such as the family, state, and economy, forces this to occur. Historically, schools have been sites of struggle over national, state, and local politics, culture, and values. Frequently, f ederal legislation to ameliorate educational needs have preceded or have been accompanied by lawsuits challenging the adequacy of the education being provided to and, in some cases, denied to minority children, 1 children for whom English was a second langu age, 2 and children with disabilities. 3 School vouchers are controversial because this policy tool separates the functions of public primary and secondary education into the provision of schooling and financing schooling. 4 This chapter reviews the societal backdrops of educational trends that relate to the politics of school vouchers. 1 Brown v. Board of Education 347 U.S. 483 (1954). 2 Lau v. Nichols 414 U.S. 563 (1974). 3 See Pennsylvania Association for Retarded Children v. Commonwealth 334 F.Supp. 1257 (E.D.Pa. 1971); Mills v. Board of Education of the District of Columbia 348 F.Supp. 866 (D.D.C.1972). 4 Harry Brighouse. School Choice and Social Justice New York: Oxford University Press, 2000, 25.

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59 59 This chapter examined literature linking school vouchers with the continuing struggle to improve education for all students, especially children in urban public schools. 5 It pr ovides an ideologies that have led, in part, to the increased interest in school vouchers as a public policy tool. Additionally, this chapter reviewed the pol itical rhetoric related to school vouchers and identifies the positions of various stakeholders. Throughout history, the federal government has emphasized various national goals (i.e., educational equal opportunity, equity, excellence, or accountability) as national events and moods changed. In the decades since economist Milton Friedman first proposed school vouchers in the 1950s, 6 the pro voucher movement has become a diverse group: Christian conservatives who support church affiliated schools, free mark et proponents who believe competition will force public schools to improvement, and inner city minority parents frustrated with the public schools in their neighborhoods. The stakeholders opposed to school vouchers have consistently been groups of public s chool advocates: 7 the American Civil Liberties Union, 8 the National Association for the Advancement of Colored People, 9 and the League of Women Voters. 10 5 Circumstances in small rural school districts have not been conducive for school choice movement. 6 Economics and the Public Interest. Robert A. Solow, ed New Brunswick, N.J.: Rutgers University Press, 1955, 123 144. 7 See National Education Association (NEA) arguments against school vouchers available at http://www.nea.org/vouchers/index.html ; Ameri can Federation of Teachers (AFT) position on school vouchers available at http://www.aft.org/topics/vouchers/index.htm; Parent Teacher Association (PTA) opposes school vouchers available at http://www.pta.org/ia_pta_positions_1118872244156.html 8 See Ameri can Civil Liberties Union arguments against school vouchers available at http://www.aclu.org/ReligiousLiberty/ReligiousLiberty.cfm?ID=7272&c=140 9 See National Association for the Advancement of Colored People (NAACP) arguments against school vouchers avai lable at http://www.naacp.org/inc/docs/education/education_resolutions.pdf 10 See League of Women Voter arguments against school vouchers available at http://www.lwv.org/AM/Template.cfm?Section=Home&template=/CM/HTMLDisplay.cfm&ContentID=1798

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60 60 Historical Perspective Thomas Jefferson, a proponent of free public schools, believed education was cru cial to a attended to, convinced that on their good sense we may rely with the most security for the preservation of a due degree of liberty." 11 public schools were practically nonexistent. Some towns in New England had primary schools but most education was provided by privately paid tutors or in a handful of church run schools. 12 Providing education for children was the responsibility of the pare nts, local churches, local officials, and philanthropic agencies. 13 Education, therefore, became a privilege for children of the wealthy with the curriculum being universally religious in nature. 14 Upon the adoption of the U. S. Constitution, in 1789, no me ntion of public education existed. In colonial New England, communities established and maintained a decentralized system and not compulsory. A combination of local taxes, tuition payments by parents, and donations funded the existing common schools, and curriculum reflected the values and religious sect (i.e., Quakers, Puritans) of the local community. Additionally, a wide array of private education, such as church s chools, college preparatory academies, seminaries, dame schools, charity schools, and 11 Thomas Jeffe rson quote to James Madison, 1787 available at http://etext.lib.virginia.edu/jefferson/quotations/jeff1350.htm 12 See Massachusetts School Law of 1647, which required a commu nity of 50 or more families to hire a schoolteacher. 13 Matthew J. Brouillette. The Case for Choice in Schooling: Restoring Parental Control of Education Midland, MI.: Mackinac Center for Public Policy, 2001, 5. 14 See Frederick Rudolph, ed. Essays on Educa tion in the Early Republic Cambridge, MA: Harvard Press, 1965, xvi xvii; see also Ellwood P. Cubberely, ed. Reading in Public Education in the United States Boston: Houghton Mifflin Co., 1934, 75 140.

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61 61 private tutors existed. All schools were viewed as serving the public interest with no real differentiation between public and private schools. 15 All schools were eligible for local public 16 The Emergence of Government Schools In the mid to late 1800s, America was inundated with large numbers of southern and easter n European immigrants. Simultaneously, the nation was transitioning from an agrarian to an industrial economy. An immediate need existed to educate and train immigrants to work in newly built factories. Public schools became the popular solution to these s ocietal needs. Schools 17 Common school reformers (i.e., Horace Mann of Massachusetts, Henry Barnard of Connecticut, and Samuel Lewis of Ohio) emphasized the need for school s to teach republican virtues. Hard work, morality, and education for democratic citizenship were implemented through a non denominational Protestant curriculum. Reformers in many states argued for increased state aid to local schools, establishment of a s tatewide professional education bureaucracy, licensing examinations, increased teacher pay, increased school terms, and the establishment of property taxation for school support. 18 15 Rockne McCarthy, Donald Oppewal, Walfred Peterson, and Gordon Spykam. Society, State and Schools: A Case for Structural Pluralism Grand Rapids, MI.: William B. Eerdmans Publishing Co., 1981, 80. 16 Encyclopedia of American Social Hi story, Volume 3 Mary Kupiec Cayton, Elliott J. Gorn, and Peter W. Williams, eds. New York, New York: Scribner, 1993. Available at http://are.as.wvu.edu/scopedu.htm 17 Joel Spring. American Education Ninth Edition. New York: McGraw Hill, 2000. 18 Carl F. K aestle, supra note15.

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62 62 The Common School Movement 19 was elected the first Secretary of the Massachusetts Board of Education in 1837. While Secretary for twelve years, state legislature, and published articles and essays about education in newspapers and journals. He was a skilled public speaker and writer who developed arguments that appealed to the particular interests of different constituencies. When addressing industrials, Mann emphasized the importance of public schools in the development of an educated and moral work force and Eleventh Annual Report of 1847, Mann proposed that education would make the nation prospero us and "redeem the state from social vices and crimes ." 20 When his audience was working people, Mann stressed the democratic purpose of public schools in the furtherance of social and economic equality. In his Twelfth Annual Report of 1848, Mann described p ublic education as "the great equalizer of the conditions of men -the balance wheel of the social machinery." 21 He envisioned public schools educating students from all social classes together. Universal schooling would be the vehicle for social and econom ic mobility for students from lower socioeconomic classes. Students, by attending school, could gain the necessary skills and knowledge to better their social and economic status. Mann and other educational reformers maintained that society had an obligat ion to educate 19 See Lawrence A. Cremin, ed. The Republic and the School: Horace Mann on the Education of Free Men New York: Teachers College Press, 1957; Jonathan Messerli. Horace Mann: A Biography New York: Knopf, 1972. 20 Lawrence A. Cremin, ed. The Republic and the School: Horace Mann on the Education of Free Men New York: Teachers College, 1957, 79 80, 84 97. Available at http://usinfo.state.gov/usa/infousa/facts/democrac/16.htm 21 Id.

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63 63 and local funds. to the next generation could be accomplished by pro viding a common educational experience that would shape children into respectable citizens. Common school supporters asserted that the virtues of good citizenship rested on a shared moral and religious foundation that was fulfilled by reading the King Jame s Version of the Bible without commentary in public schools. 22 Catholics and some Protestant denominations, Lutherans for example, argued that the reading of the King James Bible in public school was unacceptable. 23 At the time, the political majority favor ed the reading of the King James Bible in public schools. This left those families opposed to that practice to choose to remain or attend private parochial schools. When public funding was sought, Mann and others proposed that public funds be restricted to schools run and administered by the state, where a nonsectarian form of religion would be taught. During this period, the struggle for public funds for religious schools began and continues to this day. Mann was a supporter of strong governmental control of education: what was taught in public school, how it was taught, and what resources could be used to teach, and who was allowed to teach. During this period of rapid urbanization and bureaucratization, public school systems became larger and more structu industrial nature by being structured top down in industrial era management style. Two administrative roles that emerged were the superintendent and principal. In the late nineteenth century, as urban schoo ls grew larger, principals became increasingly more full time administrators. Professional superintendents were hired to oversee the whole system of public education. 22 Steven K. Green, The Blaine Amendment Reconsidered 36 Am J. Legal Hist. 38, 45 (1992). 23 Phi Delta Kappan June 1963,411.

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64 64 Mann argued that common school attendance would prevent class division and produce a soci al value. Students of all socio economic classes would be schooled together and that this would create mutual respect. Students would also be socialized in common political values, therefore guarding against political chaos. He stated that schools would disseminate basic principles of republican government necessary for citizens to remain free. These issues created a mission for public education and gave a significant role to government. The common school st be served by public, not private, education, because the moral and civic training of the young was the concern of all citizens, not just parents. 24 The common school was the standard model f or American public education by the 1890s, in part due to compulsory attendance laws. 25 Compulsory attendance legally requires children to attend public or private school and continues to provide the foundation for the American democratic process by produci ng educated citizens prepared to participate in self government. 26 including preparing the individual for citizenship and economic independence, inculcating values, an 27 The majority of students attend public schools which are regulated by state and local policymakers; whereas, private schools and home schooling are characterized by significantly fewer regulations. 24 The American Prospect. vol. 10 no.42, January 1, 1999 February 1, 1999. Av ailable at http://www.prospect.org/print friendly/print/V10/42/tyack d.html 25 See list of State Compulsory School Attendance Laws available at http://www.infoplease.com/ipa/A0112617.html 26 See Amy Gutman. Democratic Education Princeton: Princeton Univers ity Press, 1987; Jeffrey R. Henig. Rethinking School Choice: Limits of the Market Metaphor Princeton: Princeton University Press, 1994; Michael Mintrom. Policy Entrepreneurs and School Choice. Washington, D.C.: Georgetown University Press, 2000. 27 Mark G. Yudof et al., Educational Policy and the Law 4 th ed. Belmont, CA: Wadsworth Group, 2002, 121.

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65 65 The Federal Role in Education Ordinance. 28 It was the first instance of federal aid for education. The trend continued with the subsequent passages of the Morrill Acts, 29 which were a result of growing demand for agricultural and technical education in the United States following the Civil War. The Office of Education was established by The Department of Education Act of 1867 and was transferred to the Department of the Interior as the Bureau of Education in 1869. Its primary function was to collect statistics and information about the condition of education in the country. The office had no power to enforce compliance in any educational matter. In 1939 the Bureau, by executive order, was tran sferred to the Federal Security Agency, which in 1953 was renamed the Department of Health, Education, and Welfare. 30 Modern school reform began with the creation of the Cabinet level Department of Health, Education, and Welfare (HEW) in 1953. 31 The Bureau of Education of HEW was the first successful attempt of the federal government to directly influence public schools. Up until 1953, public schools had been considered the responsibility of state and local governments. In 1979, President Carter signed the D epartment of Education Organization Act which created the Department of Education as a cabinet level department. 32 28 See Northwest Land Ordinance of 1787. The sixteenth section in each township was reserved for the maintenance of public schools. 29 Morrill Acts of 1862 and 18 90 provided federal funds to establish land grant colleges and state universities. 30 Title 20 Chapter 48 Subchapter I§ 3401 31 Education, and Welf Public Papers of the Presidents (PPP) 1953 (Washington, D.C.: Government Printing Office, 1958 61), 28. 32 Department of Education Organization Act of 1979, 20 U.S.C. 3401 et seq ., Pub. L. 96 88, Oct. 17, 1979, 93 Stat. 668.

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66 66 importance and to provide federal financial ass istance for categorical services to states. In concern, which then spurs state and local policymakers to address the same issue. 33 Educational Trends in the 1950s In the 1950s, the federal government became actively involved in setting national educational policy. The formation and growth of the school voucher movement, within that policy, was related to three specific events. First, the U. decision, Brown v. Board of Education 34 focused national attention on equal educational opportunity and equity. The Brown decision held that the Equal Protection Clause of the Fourteenth Amendment prohibits states from maintaining segregated public schools The U. S. Supreme Court validated Compulsory school attendance laws and great expenditures for education both demonstrate our recognition of the importance of education to our demo cratic society. 35 The Brown decision initiated social reforms that were a catalyst for the Civil Rights Movement in the 1960s and shifted education policy in an entirely new direction. Educational education as a private good, protected by 36 Many viewed school vouchers as an alterative funding tool to obtain a private good (education). 33 Jack Jen Phi Delta Kappan Vol.81, No.7 (March 2000), 516 522. 34 347 U.S. 483, 74 S. Ct. 686 (1954). 35 Id at 492 493. 36 Thomas Timar and David Tyack. The Invisible Hand of Ideology: Perspectives from the H istory of School Governance Denver, Colo.: Education Commission of the States, 1999, 6.

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67 67 Therefore, schoo l vouchers could be utilized exclusively for personal gain or used to achieve equality of educational opportunity and equity. 37 It is, however, important to recognize that the Brown decision, while not only initiating ultraistic educational reforms, encoura ged some families to take advantage of school vouchers as a way to support segregation in certain areas of the country. School vouchers were used primarily in southern states to avoid having children es flourished when parents supported freedom of choice programs. 38 Parents withdrew their children from the public schools to enroll them in private schools, which were funded by publicly funded vouchers. 39 In 1955, the second educational event was initiat ed by economist Milton Friedman. He proposed a free market approach to education that would implement publicly funded school vouchers. 40 Friedman questioned the role of government in education and whether there ought to be government schools. He believed p 41 Governments would require a minimum level of education which they could finance by giving parents vouchers redeemable for a specified maximum su m per child per year... Parents would then be free to spend this sum and any additional sum on purchasing 37 See F. J. Capell and L. Dosher. A Study of Alternatives in American Education: Vol. VI, Student Outcomes at Alum Rock 1974 76 Santa Monica, CA: RAND, 1981. 38 Peter Teachers College, ERIC Clearinghouse on Urban Education Institute for Urban and Minority Education, Urban Diversity Series No. 110, December 1997, 7. 39 See Green v. County School Board of New Kent County, VA et al 391 U.S. 430 (1968) and Griffin v.County School Board of Prince Edward County 377 U.S. 218, 222 (1964). In 1959 the General Assembly abandoned 251 to 22 275.). The Board of Supervisors for Prince Edward County refused to appropriate any funds for the County School Bo ard, effectively closing the public schools rather than integrate them. Prince Edward County schools remained closed for five years from 1959 1964. 40 Economics and the Public Interest. Robert A. So low, ed. New Brunswick, N.J.: Rutgers University Press, 1955, 123 144. 41 Id

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68 68 educational services from an 'approved' institution of their own choice. The educational services could be rendered by private enterprises operated fo r profit, or by non profit institutions of various kinds. The role of government would be limited to assuring that schools met certain minimum standards such as the inclusion of a minimum common content in their programs, much as it now inspects restaurant s to assure that they maintain minimum sanitary standards. 42 interest, but in the 1960s and 1970s liberal reformers would advocate regulated school vouchers to meet the educational needs of low income students. 43 In the 1980s and 1990s, conservatives had a renewed interest in free market goals that emphasized competition as the key to school improvement: This voucher plan would give all parents the opportunity to choose schooling for their children that the more affluent among us now have It would promote a rapid improvement in the quality and diversity of education as competition worked its magic in schooling, as it has in every other area. 44 The third and final maj or educational event focused on federal funding for education as a 45 Prior to 1957, education proposals for general aid for school districts failed in Congress. Following Sputnik, the public becam e alarmed that American children seemed to be academically inferior to Russian children, and, thus public school reform efforts intensified. Congress responded by passing the National Defense Education Act (NDEA) of 1958, 46 which specified funds (categorica l) for math, science, 42 Id 43 See Saturday Review January 11, 1969; Christopher Jencks, New Republic July 4, 1970; John E. Coons and California Law Review 59:321 438, 1971. 44 Milton Friedman. Bright Promises, Dismal Performance: An Economist's Protest Will iam R. Allen, Ed. New York: Harvest/Harcourt Brace Jovanovich, 1983, 171. 45 See Constance McLaughlin Green and Milton Lomask. Vanguard: A History Washington, DC: Smithsonian Institution Press, 1971. Available at http://www.hq.nasa.gov/office/pao/History/ sputnik/toc.html. 46 National Defense Act of 1958, 20 U.S.C. 401 et seq ., Pub. L. 85 864, Sept. 2, 1958, 72 Stat. 1580.

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69 69 and language initiatives for public and private schools. 47 Since that event the federal government has taken a continuous role in the never ending era of school reform. High Expectations of the 1960s and the 1970s Constitutional issue s raised in Brown v. Board of Education 48 and social welfare concerns were the foundation on which all federal efforts to help educate disadvantaged children was built i n the 1960s and the 1970s. Policymakers had confidence that the r on 49 and the result would eliminate, or severely reduce, racial, economic, and educational disadvantages. The idea that the "cycle of poverty" could be broken was widely accepted. It was also expected that with assistance, the poor would move i nto the middle class. 50 President Lyndon Johnson envisioned public schools as the remedy for socioeconomic inequality and initiated compensatory programs such as Head Start, 51 Title I of the Elementary and Secondary Education Act of 1965, 52 and Upward Bound. 53 47 See James Sundquist. Politics and Policy: The Eisenhower, Kennedy and Johnson Years Washington, D.C.: The Brookings Institution, 1968, purpose aid, carefully designed, could be enacted at a time when general 48 347 U.S. 483, 74 S. Ct. 686 (1954). 49 Public Papers of U S. Presidents, Lyndon B. Johnson, 1963 1964 Washington: G.P.O., 1965, 1, pp. 375 380. Available at http://www.fordham.edu/halsall/mod/1964johnson warpove rty.html. 50 See Phi Delta Kappan Vol. 81, No. 7 (March 2000), 516 522. 51 Economic Opportunity Act of 1964, 42 U.S.C. 2701 et seq ., Pub. L. 88 452, Aug. 20, 1964, 78 Stat. 508, c reated a number of anti poverty programs including Head Start program. 52 Title I of the Elementary and Secondary Education of 1965, 20 U.S.C. 2701 et seq. 53 Economic Opportunity Act of 1964, 42 U.S.C. 2701 et seq ., Pub. L. 88 452, Aug. 20, 1964, 78 Stat. 508, created a number of anti poverty programs including Upward Bound. This program was designed to help economically disadvantaged students complete high school and to enter and succeed in postsecondary education.

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70 70 54 unrest at home. Equality of Educational Opportunity In the 1960s the national trend, led by President Johnson, was achieving equality of opportunity for all Americans. The traditional concept of equal educational opportunity concentrated on the issue of legal access. Equal opportunity exists when educational and occupational systems do not overtly discriminate against any persons on the bas is of morally irrelevant criteria such as racial identity, socio economic status, or gender. Congress proposed civil rights legislation to ameliorate racial injustices. Civil rights legislation had been enacted after the Civil War, 55 but those laws had bee n largely ignored or replaced in the 1880s and 1890s by other statutes. 56 In Plessy v. Ferguson 57 the doctrine of schools, and public buses) for blacks a nd whites were constitutional as long as they were "equal." In Brown v. Board of Education 58 the U. S. Supreme Court took a significant step toward equal civil rights by overturning the Plessy decision. The Court concluded that "in the field of public educ 59 as well as violated 54 See Civil Rights Act of 1964, 42 U.S.C. 2000a et seq ., Pub. L.88 352, July 2, 1964, 78 Stat. 241; Voting Rights Act of 1965, 42 U.S.C. 1971, 1973 et seq ., Pub. L. 89 110, Aug.6, 1965, 79 Stat. 437; Fair Housing Act of 1968, 42 U.S.C. 3601 et seq ., Pub. L. 90 284, title VIII, Apr. 11, 1968, 82 S tat. 81. 55 See Civil Rights Act of 1866, 42 U.S.C. §1981, April 9, 1866, ch.31, 14 Stat. 27 30 and Civil Rights Act of 1875, 18 Stat. 335, Act of Mar. 1, 1875. 56 See Michael J. Klarman. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality New York: Oxford University Press, 2004. 57 Plessy v. Ferguson 163 U.S. 537 (1896). 58 Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, (1954). 59 Id at 495.

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71 71 60 The moral mandate to achieve equality of educational opportunity was stated by Justice Wa rren writing for the Court, In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. 61 Prior to Brown Americans had tolerated great disparities in educational opportunity, but following the Brown decision, public schools were seen as the vehicle to ensure that all students had an equal chance to s ucceed. 62 The federal government concentrated funding on compensatory education programs such as Head Start preschool programs, Title I compensatory education programs, and special education funding. Title I of the Elementary and Secondary Education Act of of K 12. 63 society expected of schools and what the more disadvantaged in society expected for 64 The Title I specified that the funds were to be used for the education of children in poor districts who needed help on basic academic skills. Equality was defined primarily in resource or input terms that included universally available a nd free education, common curriculum, and equality of instructional resources. 65 An underlying belief was that all students 60 Amendment XIV, Section I 61 Brown at 492 493. 62 Helen F. Ladd and Janet S. Hansen, eds. Washington, D.C.: National Academy Press, 1999, 105. 63 Title I of the Elementary and Secondary Education of 1965, 20 U.S.C. 2701 et seq created grants for educational programs at the state and local levels (i.e., Title I of the Elementary and Secondary Education, Pub. L. 103 382). 64 See Phi Delta Kappan Vol. 81, No. 7 (March 2000), 516 522. 65 Harv. Educ. Rev. 7 (1968).

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72 72 deserve an equal chance to succeed, with individual results dependent on motivation, desire, effort, and innate ability. Success shou ld not be dependent on external factors, such as the financial ability of the family, geographical location, race or ethnicity, gender, or disability. 66 After Brown, many school reformers sought redress from the courts to remediate other educational inequal ities such as differences in place of residence (i.e., rural v. urban), family occupation and income, gender, and students with disabilities. Title IV of the Civil Rights Act of 1964 called for a survey "concerning the lack of availability of equal educat ional opportunity by reason of race, color, religion, or national origin in public educational institutions at all levels." 67 In 1966, James S. Coleman presented the Equality of Educational Opportunity Con gress. 68 To the surprise of many, Coleman reported that unequal achievement between the races was not so much a product of differences in school facilities, curriculum materials, or teacher quality, as it was a function of the racial and socio economic isol ation of African Americans. The study found that low income students have higher levels of achievement, and/or larger achievement gains over time, when they attend middle class schools than when they attend high poverty schools. School desegregation becam e the principal policy response to the Coleman Report. In 1967, the U. S. Civil Rights Commission issued a report that called for legislation providing that 66 Mark G. Yudof et al., Educational Policy and the Law 4 th ed. Belmont, CA: Wadsworth Group, 2002, 770. 67 Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c et seq ., P ub. L.88 352, July 2, 1964, 78 Stat. 241. 68 James S. Coleman, Ernest Q. Campbell, Carl J. Hobson, James McPartland, Alexander M. Mood, Frederic D. Weinfeld, and Robert L. York. Equality of Educational Opportunity Washington, DC: U. S. Government Printing Office, 1966.

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73 73 no school be more than 50 percent African American. 69 These mandatory desegregation plans, implement ed to protect the constitutional rights of minority students, often resulted in middle moving, using private schools, or manipulating the system to get prefer red school assignments for their children. 70 Responding to the findings of educational inequality in the Coleman Report, many liberal school reformers focused on the educational needs of low income students by advocating targeted vouchers. 71 Sociologist Ch ristopher Jencks suggested that private schools could provide families an alternative to poorly performing schools in the inner city. 72 He proposed regulated government bureaucr atic public school system could have detrimental effects on inner city public schools. Private control would make it possible to attack management problems, and the use of tuition grants would put an end to neighborhood schools. Though a radical idea, Jenc ks believed that neighborhood schools were stratifying students by socio economic background, thus academically limiting students at the lower end of the achievement curve. Therefore, he advocated a regulated voucher system that contained safeguards for di sadvantaged students. 69 U. S. Commission on Civil Rights. Racial Isolation in the Public Schools Washington: Government Printing Office, 1967. 70 Parents, St Public Schools by Choice Joe Nathan, ed. St. Paul, MN: The Institute for Learning and Teaching, 1988, 48. 71 See John E. Coons and Stephen D. Sugarman. Education by Choice: The Case for Family Control Berkeley, CA: University of California Law Review 59:321 Ne w Republic Saturday Review Psychology Today Aug. 1968, 59. 72 See Christopher Jenc ks. The Public Interest 2 (Winter) 1966, 18 27; Christopher for the Study of Public Policy, 1970.

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74 74 According to Jencks, an unregulated voucher system that contains no safeguards would be worse than no voucher system at all. Equality of educational opportunity as a policy initiative had two significant weaknesses. First, no consens us or clear definition existed regarding which educational outcomes were of the most importance for individual student achievement. Second, equality of opportunity requires no particular level of student achievement. It does not forbid significant inequali ties in achievement between high achieving and low achieving individuals so long as variations in achievement are race or origin of birth. 73 The concept of equality of educational opportunity implied that the educational opportunit ies, those arising from family, community, and school. 74 Others argue that a more accurate view would be that equality of educational opportunity implied "a direction of effort, not a goal to be achieved" 75 equal results across social groups is not itse lf the goal, but simply the measure of its fulfillment. The moral emphasis is upon equalizing opportunities, 76 73 Helen F. Ladd a nd Janet S. Hansen. Washington, D.C.: National Academy Press, 1999, 105 16. 74 New Horizons fo r Learning February 2003. Vol. 14, No. 2. Available at http://www.newhorizons.org/strategies/multicultural/fritzberg.htm 75 Ethics Vol. 81, No.3, 1971. 76 Educational Foundations Spring 2000. Available at http://www.findarticles.com/p/articles/mi_qa3971/is_200004/ai_n8889074

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75 75 Equity Equity was a corresponding federal goal with equality of educational opportunity in public education in the 1960s and 1970s 77 Equity is a belief comprised of the legal values of justice, impartiality, and fairness. 78 From a strictly economic viewpoint, equity refers to fairness in the distribution of some good, service, or burden. 79 Efforts to achieve equality of studen t expenditure followed from the national commitment to equality of educational opportunity. Educational equity implies that educational funding will be relatively the same for all students with the exception of formula adjustments due to differing educatio nal costs across the country and special needs for some students that may require additional funding. From an educational perspective, equity focuses on providing equal educational opportunity for all children. 80 The purpose of education should be to level out differences among students from different incomes, parents of varying education levels, and any other factors impeding students from reaching their full potential. Greater equity can be achieved when every child has an equal chance of attending any pub lic school without restrictions based upon 77 The Future of the Federal Role in Elementary & Secondary Education Washington, D.C.: Center on Education Policy, 2001. 78 Helen F. Ladd and Janet S. Hansen. Washington, D.C.: National Academy Pres s, 1999, 69. 79 David H. Monk. Educational Finance: An Economic Approach New York: McGraw Hill Publishing Company, 1990, 35. 80 Louann A. Bierlein. Controversial Issues in Educational Policy. Newbury Park, CA: Sage Publications, 1993, 3.

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76 76 residence. 81 This assumes equalizing resources (inputs) will also equalize performance and life outcomes. 82 Educational Trends in the 1970s President Nixon commissioned the Panel on Non Public Education, a subgroup of the religious schools. 83 "Parochiaid" did not develop beyond a proposal due to the lack of adequate political support, and the issue of whether public aid to re ligious schools was constitutional. 84 contemporary arguments over school voucher programs that include religious schools participation. 85 During the 1970s, there were key jud icial decisions in several jurisdictions that impacted national educational policy. 86 After the U. S. Supreme Court decision in Lemon v. Kurtzman 87 the legislative momentum of direct aid to religious schools ceased at the federal level. The Court 81 arent Choice and American Values in Public Schools by Choice: Expanding Opportunities for Public Schools by Choice Joe Nathan, ed. St. Paul, MN: The Institute for Learning and Teaching, 1988; Louann A. Bierlein. Contr oversial Issues in Educational Policy. Newbury Park, CA: Sage Publications, 1993, 91. 82 Council, Equity and Adequacy in Education Finance 7 24 (1999). 83 See Pr37 President of the United States Richard M. Nixon. Available at http://library.wustl.edu/units/westcampus/govdocs/sudocs/pres/pr37.html ; Alex Molnar. 99 21, October 1999. Available at http://www.asu.edu/educ/epsl/EPRU/documents/EdVouchers/educationalvouchers.html#historical 84 99 21, October 1999. Available at http://www.asu.edu/educ/epsl/EPRU/documents/EdVouchers/educationalvouchers.html#historical 85 See Thomas W. Lyons, "Parochiaid? Yes!" Educational Leadership November 1971,102 104; Glenn L. Archer, "Parochiaid? No!" Educationa l Leadership November 1971,105 107; Grace Graham, "Can the Public School Survive Another Ten Years?" Educational Leadership May 1970, 800 803. 86 Lemon v. Kurtzman 403 U.S. 602 (1971); Serrano v.Priest 487 P.2d 1241 (Cal. 1971); PARC v. Pennsylvania 33 4 F.Supp. 1257 (E.D. PA 1972 ) ; Mills v. Board of Education of the District of Columbia 348 F.Supp.866 (D.D.C. 1972). 87 403 U.S. 602 (1971).

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77 77 held that salaries and purchased instructional materials for religious schools. The Court created a three prong standard for determining Establishment Clause challenges to state statutes 88 First, the statute must have a secular legislative purpose. 89 Second, the primary effect cannot have the effect of advancing or inhibiting religion. 90 Finally, the law cannot result in the state becoming excessively entangled with religion. 91 The Lemon dec ision established a significant precedent the majority of public aid to religious school cases during the following two decades. In 1971, Serrano v. Priest was the first school finance case that challenged the wealth related disparities in per pupil spending generated by California's education finance system. 92 C limited taxing power were discriminated against because the ability of the school to raise funds alifornia Supreme Court held that S. Constitution. The California Supreme Court ruled that education is a fundamental constitutional right and that the existing system of public fina nce, which was essentially the local property tax, was unconstitutional. This ruling reasoned that all children in California had a fundamental right to equal public education. The California Supreme Court ordered the legislature to equalize funding 88 Id. at 612 13. 89 Id at 612. 90 I d 91 I d at 613. 92 487 P.2d 1241 (Cal. 1971).

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78 78 among school districts. The California legislature ultimately equalized school funding downward to the level spent by the low wealth districts instead of leveling school funding upward to the amount spent in high wealth districts. 93 While working on Serrano law students John Coons and Stephen Sugarman recommended school vouchers as a potential remedy for unconstitutional school funding inequities for students in poor school districts. 94 They proposed the use of regulated vouchers to alleviate equity concerns in e ducation. One type of voucher proposal, intended to overcome problems associated with different educational needs, was that all children receive a voucher of equal value. Additionally, grants were to be made to each family according to economic needs. The largest grants were to go to the poorest families, with a progressive reduction to zero for families of average income. 95 by promoting freedom of choice for all families regardless o f income. In the 1970s, the Office of Economic Opportunity (OEO) launched the first voucher experiment in Alum Rock, California. 96 Christopher Jencks and colleagues from Harvard system. The project was plagued with problems from the start. No state was willing to provide enabling legislation for private schools to receive public funds and few school districts were willing to accept the experiment. The Alum Rock School District, a racially diverse system located to the east of San Jose, California, agreed to implement the OEO voucher plan with twenty 93 Serrano v. Priest 226 Cal.Rptr. 584 (Cal. App. 1986) (Serrano III). 94 John E. Coons, William H. Clune, and Stephen D. Sugarman. Private Wealth and Public Education Cambridge, Mass. : The Belknap Press of Harvard University Press, 1970. 95 John E. Coons and Stephen D. Sugarman. Education by Choice: The Case for Family Control Berkeley, CA, University of California Press, 1978. 96 Teachers College Record February 1971, 72: 327 335.

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79 79 four public schools. The project began in 1972 and was discontinued when federal funding ceased. 97 observed. 98 It was noted that most parents preferred neighborhood schools to alternative schools. 99 Voucher o pponents used the Alum Rock data to discredit vouchers. Voucher advocates protested, claiming that since no private schools participated, a free market place did not exist. They claimed that this experiment was actually more founded on school decentralizat ion than free market opportunity. The Alum Rock experiment amounted to a voucher system of mini schools within the existing public system, each with a nominally diverse curriculum. 100 This early voucher plan was the first to include public school choice as a method to address issues of economic and ethnic inequality. 101 Educational Trends in the 1980s A conservative cultural and ideological shift occurred in America with the election of education goa ls changed from 97 See Daniel Weiler. A Public School Voucher Demonstration: The First Year at Alum Rock, Summary and Conclusions. Santa Monica, CA: Rand, 1974 ; Amy Stuart Wells. Time to Choose: America at the Crossroads of School Choice Policy New York: Hill and Wang, 1993, 152. 98 F J. Capell and L. Dosher. 1981. A Study of Alternatives in American Education: Vol. VI, Student Outcomes at Alum Rock 1974 1976 Santa Monica, CA: Rand. 99 Carol Ascher, Norm Fruchter, and Robert Berne. Hard Lessons: Public Schools and Privatization. New Y ork: Twentieth Century Fund, 1996. 100 See Pierce Barker, Tora K. Bikson, Jackie Kimbrough, and Carol Frost. A Study in Alternatives in American Education, Vol. V, Diversity in the Classroom Santa Monica, CA: Rand Corporation, 1981. 101 Peter Cookson, Jr. and Kristina Berger. Expect Miracles: Charter Schools and the Politics of Hope and Despair Boulder: Westview Press, 2002, 27.

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80 80 102 President Reagan was critical of federal aid to education and sought to have Title I repealed. Although not successful in eliminating Title I, he was able to cut back on the As an alternative, President Reagan proposed that funds be combined into "block grants" with few federal requirements regarding their use to be made available to all states. Congress passed Chapter 2 of the Education Consolidation a nd Improvement Act, 103 which was a block grant that combined more than 40 smaller education programs. resistance to federal involvement in states' activities leading to support for privatization. Furthermore, po licymakers support for federal compensatory education faded in comparison to the political support of the 1960s and 1970s. In 1983, the National Commission on Excellence in Education released A Nation at Risk 104 The report warned of a "rising tide of medio crity" in American schools "that threatens our very future as a Nation and as a people." 105 effort to improve public primary and secondary education. Many states enacted laws that increased instructional time and graduation requirements. The late 1980s continued to be marked by heightened public concern about the quality of public primary and secondary schools. President George H. W. Bush campaigned on the need for educational accountability. After his election, he oversaw many educational reforms in his 102 See Texas Education Review Winter 2003 Available at http://www.nationalreview.com/comment/finn200406090839.asp 103 Chapter 2 of the Education Consolidation and Improvement Act of 1981, 20 U.S.C. Sec. 7301 e t seq. (P. L. 97 35, Aug. 13, 1981, 95 Stat. 469. 104 National Commission on Excellence in Education. A Nation at Risk: The Imperatives for Educational Reform Washington, D.C.: U. S. Government Printing Office, 1983. 105 Id.

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81 81 pursuit of being known as the"Education President." In 1988, the reauthorization of ESEA established accountability measures for Title I (then Chapter 1). 106 States were now required to identify schools with ineffe ctive Chapter 1 programs on the basis of average individual student gains on annual standardized norm referenced tests and to provide capacity building support. Schools were deemed ineffective if disadvantaged students did not show substantial progress tow ard meeting defined levels of academic achievement. Governors' Association for a summit on education, focusing on the establishment of national performance goals in order to raise the academic achievement of A merican students. Policies growing out of that summit caused a massive shift in power over education from local to the federal government. During this summit, state governors adopted National Education Goals that required all students to master subject mat ter in core disciplines. Student assessment was the key piece of Goals 2000. Participation by states was not mandatory, but states that participated received federal funding. During the 1980s, the U. d from strict separationist to favoring a neutrality approach. In 1983, the U. S. Supreme Court upheld a tuition tax credit for Minnesota families who sent their children to private schools, including religious schools. 107 The Court reasoned that public aid became available to religious schools 108 106 as part of the 1981 reauthorization but was returned to its original name in the 1994 reauthorization. 107 Mueller v. Allen 463 U.S. 388, 103 S.Ct. 3062 (1983). 108 Id at 399.

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82 82 Educational Trends in the 1990s vouc her theory maintained that all individuals must have a basic level of education in order to significantly participate in society, and that this participation results in both an individual and public benefit. He advocated private rather than public provisio n of education as most effective in achieving this goal. 109 Friedman was the first to argue that school vouchers should be used to separate the functions of providing schooling and paying for schooling. 110 He proposed vouchers as a way to separate government f inancing of education from government administration of schools. The fact that government should finance schools due to the public benefits of education does not mean that government should operate them. 111 Friedman recommended that families be given subsidi es in the form of educational vouchers to purchase educational services for their children at government approved schools, in much the same way people buy any necessary commodity. He advocated freedom for families to spend the voucher amount, and any addit ional amount, at the educational institution of their minimum standards of approval of educational institutions. 112 Friedman also argued that educational vouchers would a llow innovative instructional approaches and increased responsiveness to parental concerns via a larger variety of public and private schools. 109 Econom ics and the Public Interest New Brunswick, Rutgers University Press, 1955; Milton Friedman. Capitalism and Freedom Chicago, IL, The University of Chicago, 1962. 110 Harry Brighouse. School Choice and Social Justice New York: Oxford University Press, 2000, 25. 111 Milton Friedman. Capitalism and Freedom Chicago: University of Chicago Press, 1962, 86. 112 Economics and the Public Interest New Brunswick, Rutgers University Press, 1995, 1 27.

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83 83 in the policies and prac 113 Attention was focused on the appropriate role prosperity. 114 Free market advocates favored using private rather than public mechanisms for producing and distributing educational opportunities. From this viewpoint, the most essential private mechanism for producing and distributing valued goods and services is an unregulated market in which buyers and sellers meet and make exchanges to improve their re spective positions. 115 Choice makes schools accountable to the families who do the choosing. If problems arise, free market theory tends to link solutions to less government. 116 Private sector provision (i.e., charter schools, contracts for profit educational services, and vouchers) of publicly funded education services increased in the 1990s. In 1990, political scientists John Chubb and Terry Moe claimed public schools are failing because of bureaucracy and lack of autonomy. 117 According to Chubb and Moe, burea ucracy is counterproductive for effective school organization because a large system is administered ost important element in 113 Based Education and Urban Society Sage Publications Nov 01, 2001 34: 66 83. Available at h ttp://www.schoolmatch.com/articles/EUS1101.htm 114 Daniel Yergin and Joseph Stanislaw. The Commanding Heights: The Battle Between Government and the Marketplace that is Remaking the Modern World. New York: Simon and Schuster, 1998. 115 David H. Monk. Education al Finance: An Economic Approach New York: McGraw Hill Publishing Company, 1990, 3. 116 Jeffrey R. Henig. Rethinking School Choice: Limits of the Market Metaphor. Princeton, NJ: Princeton University Press, 1994, 190. 117 John E. Chubb and Terry M. Moe. Politi Washington, DC: Brookings Institution Press, 1990.

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84 84 the academic improvement of schools. 118 Chubb and Moe proposed eliminating centralized bureaucracies and giving authority directly to schools, parents, and students. The degree to which the institutional environment is a barrier to educational productivity depends on the extent to which bureaucracy and direct democratic control affect school administration. Chubb and Moe argue that environments that are relatively homogeneous and problem free are likely to be the least bureaucratic, while urban areas are more likely than suburbs or rural areas to suffer from the negative consequences of bureaucratic controls and political pluralism. 119 According to Chubb and Moe, these are the places where productivity problems are the worst and where the need for exceptionally effective schools is the greatest. 120 Productivity, the ratio of inputs to outputs, is one way to measure the quality of public schools. Specifically, educational productivity is measured by dividing a measure of student achieveme nt by per pupil spending in inflation adjusted dollars. Many researchers have documented that school spending has increased but student achievement as measured on the Student Aptitude Test (SAT) has not. 121 118 James S. Coleman, Thomas Hoffer, and Sally Kilgore. High School Achievement New York: Basic Books, 1982. 119 John E. Chubb and Terry M. Moe. Politics, Markets, and Ame Washington, DC: Brookings Institution Press, 1990, 64. 120 Helen F. Ladd and Janet S. Hansen. Washington, D.C.: National Academy Press, 1999, 160. 121 See Working Paper #8. Rochester, N.Y.: University of Rochester, 1996. Available at http://nces.ed.gov/pubs97/97535/97535k.asp ; Richard Rothstein and K.H. Miles. Changes in the Level and Composition of Education Spending Washington, DC: Economic Policy Institute, 1995 & t Lifts All Economics of School Choice Chicago: University of Chicago Press for the National Bureau of Economic Research, 2001.

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85 85 educational scholars have argued the significance of money in determining the quality of education provided to students. 122 The Coleman Report, which was prepared to meet a mandate of the 1964 Civil Rights Act, set the debate about productivity in motion. Th e original goal was to determine differences in the quality of education available to different groups in the population, particularly minority groups. The researchers extended the study and attempted to show how differences in student performance on stand ardized tests were connected to differences in socioeconomic background characteristics and school resources. 123 This report produced two controversial conclusions. First, the gap in educational resources available to black and white students was less than e xpected. Second, the report found the effects of school resource allocation on student achievement to be minor. The authors concluded that the measurable characteristics of teachers and schools were negligible in determining student outcomes. Socioeconomi c background variables and the composition of the student body played a more important role in determining student success. Students of well educated and higher socio economic parents tended to outperformed students raised in families having lower socioeco nomic status and less education. In 1986, after surveying the literature, Eric Hanushek agreed with Coleman, concluding, d 122 James S. Coleman, E.Q. Campbell, C.J. Hobson, J. McPartland, A.M. Mead, F.D. Weinfeld, and R. L. York. Equality of Educational Opportunity. Washington, DC: U. S. Department of Health, Education, and Welfare, 1996. 123 Gary Burtless., ed. Does Money Matter? The Effect of School Resources on Student Achievement and Adult Success. Washington, DC: Brooki ngs Institution Press, 1996, 6 7.

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86 86 124 Needless to say, educ ators and other researchers from other academic disciplines fervently disputed these conclusions. 125 In 1990, John Chubb and Eric Hanushek stated that average United States spending per student, controlling for the effect of inflation, rose more than 60 per cent between 1966 and 1980, when the majority of test score decline had occurred. 126 achievement. The bottom line is, they have not found any. Researchers have found no systematic relationship between student achievement and the inputs that reformers (and researchers) always 127 Critics of public schools claim bureaucracy interferes with efforts to improve educ ational productivity in several ways: discretion and autonomy is reduced at the school level; 128 administrators and teachers are drawn from their primary concern, instruction; accountability for educational outcomes is found lacking; and schools are unable t o exercise meaningful control over the instructional outputs and are denied free access to resources intended for school 124 Eric A. Hanushek. Journal of Economic Literature 24 (3), 1986, 1162. 125 See David C. Berliner and Benjamin J. Biddle, The Manufactured Crisis: Myt hs, Fraud and the Attack on Reading, MA: Addison Wesley, 1995; Richard Rothstein, The Way We Were: The U. S. Students American Prospect vol. 37 (March April 1998). 126 Setting National Priorities: Policy for the Nineties Washington, D.C.: Brookings Institution Press, 1990, 217 219. 127 Id at 220. 128 John E. Chubb and Terry M. Moe. Washington, DC: Brookings Institution Press, 1990; Paul T. Hill, Lawrence C. Pierce, and James W. Guthrie. Reinventing Public Education: How Contracting Can Chicago: University of Chicago Press, 1997; and J. E. Brandl. Learning from School Choice Washington, DC: Brookings Institution Press, 1998, 55 81.

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87 87 every dollar is allocated to teacher salaries 129 Policy makers increasingly act to reduce the discretion permitted at the school level in order to reduce compliance problems, to reduce interference from outside interest groups, and to insulate their decisions from change by future policy makers. 130 During the 1990s, school choice legislation was successfully implemented in many parts of the country. In 1990, the Wisconsin legislature passed the Milwaukee Parental Choice Program, 131 the first school voucher legislation allowing students to attend private nonreligious schools, and subsequently expand ed the program to include religious schools in 1995. 132 In 1991, Minnesota was the first state to enact a charter school law with many other states following suit. 133 In 1995, Ohio enacted legislation to allow Cleveland students to use school vouchers at relig ious schools. 134 In 1999, Florida became the first state to enact a statewide voucher program. 135 During his presidency, President George H. W. Bush supported three choice proposals. In 1989, the first proposal was included in the Excellence in Education Act, which would have 129 Paul T. Hill, Lawrence C. Pierce, a nd James W. Guthrie. Reinventing Public Education: How Contracting Can Chicago: University of Chicago Press, 1997, 29. 130 Helen F. Ladd. and Janet S. Hansen. Washington, D.C.: Na tional Academy Press, 1999, 159. 131 Wis. Stat. § 119.23 (1995 96). 132 Wis. Stat. Ann. § 119.23 (2001). 133 Minnesota Statute 124D. 10. Before enacting the charter school law, Minnesota was the first state to enact statewide interdistrict public school choice f or all students. 134 Ohio Rev. Code Ann. § 3313.974 3313.979 (Baldwin Supp.2001). 135 2001 Fla. Stat., Title XVI, Chapter 229.0537.

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88 88 allotted $230 million to fund choice scholarships and experiments. In 1991, President Bush the country's first ever national academic standards, but it however, was no t passed by Congress. In 1992, before 136 President Clinton was elected in 1993 and continued t he educational accountability theme of President Bush and the governors President Clinton was a leading participant in President that emphasized student outcomes over inputs. Goals 2000: Educate America Act in March of 1994. 137 Each participating state was required to implement explicit standards at the state level for curriculum content and pupil performance to receive Goals 2000 grants, or to continue to receive grants under Elementary and Secondary Education Act (ESEA) Title I. 138 T he Clinton Administration maintained that the way to improve public schools was to require states to embrace high standards and to hold all children to the same standards. President Clinton was for expanding public school choice and supported the growth of public charter schools to deal with failing public schools. He was in favor of rewarding the best schools and shutting down or redesigning schools that are failing. 139 Though in favor of public school choice, President Clinton opposed school vouchers becaus e they divert limited federal 136 Clearinghouse Notes. Decemb er 1994, 91. 137 Goals 2000: Educate America Act, 20 U.S.C. 5801 et seq Pub. L. 103 227, Mar. 31, 1994, 108 Stat. 125 191, 200 211, 265 280. 138 James B. Stedman and Wayne C. Riddle. Goals 2000: Educate America Act Implementation Status and Issues Congressio nal Research Service Report 95 502, Washington, D.C.: The Library of Congress, 1998. Available at http://opencrs.cdt.org/rpts/95 502_19980217.pdf 139 William Jefferson Clinton. Between Hope and History : st Century New York: Random House, 1996, 44.

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89 89 which would earn tax free interest. 140 The m oney could be used to cover educational expenses including private school tuition, after school tutoring, uniforms and computers. Current Educational Trends With the election of George W. Bush, the trend of privatization in government has been renewed and become the acceptable norm in many areas of public policy. Many different government programs utilize vouchers to provide social services. Typically, the funding trail for these voucher programs runs from a federal agency to a state and/or local agency. M any voucher programs permit faith based organizations to participate, but these faith based service providers may not use government funds for religious worship, instruction, or proselytization. 141 Secular alternatives must exist for voucher recipients who d o not want services from faith based organizations. Examples of federal programs that permit the use of vouchers include: Temporary Assistance for Needy Families (TANF) which replaced Aid to Families with Dependent Children (AFDC), funded by the U. S. Depa rtment of Health and Human Services and administered by state and local human services agencies; 142 child care subsidies funded by the Child Care and Development Block Grant (CCDBG) through the U. S. Department of Health and Human Services and administered b y state and local human services agencies which provides child care subsidies for low income working families, families receiving public assistance, and those 140 See Joint Committee on Taxation, (JCX 30 00), March 21, 2000. Available at http://www.house.gov/jct/x 30 00.pdf 141 See Personal Responsibilit y and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. 1305 et seq. Pub. L. 104 193, Aug. 22, 1996, 110 Stat. 2105. Available at http://wdr.doleta.gov/readroom/legislation/pdf /104 193.pdf 142 The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 created Temporary Assistance for Needy Families (TANF), 42 U.S.C. § 601 et seq Pub. L. 104 193 a welfare reform program which utilizes a variety of voucher progra ms including child care subsidies and substance abuse treatment.

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90 90 enrolled in training or education; 143 food stamps funded by the U. S. Department of Agriculture and administered by state and local human services offices; 144 Individual Training Accounts funded by the Workforce Investment Act (WIA) of 1998 through the U. S. Department of Labor and administered by local workforce development systems; 145 low income housing f unded by the U. S. Department of Housing and Urban Development and administered by local public housing authorities; 146 and, under No Child Left Behind Act of 2001 (NCLB), low income students who do not make adequate yearly progress for three consecutive yea rs are eligible for Supplemental Educational Services (SES) which are funded by the U. S. Department of Education and administered by local school districts. 147 Within a broader policy environment that favors consumer choice and market based accountability, the political barriers to primary and secondary education voucher programs are possibly being reduced. On January 8, 2002, President George W. Bush signed the No Child Left Behind Act (NCLB) into law. 148 A reauthorization of the ESEA of 1965, this legislation holds schools accountable for student achievement levels and penalizes schools that do not make adequate 143 Child Care and Development Block Grant Act of 1990, 42 U.S.C. 9801 et seq Pub. L. 104 193, title VI, Aug. 22, 1996, 110 Stat. 2278. The Personal Responsibility and Work Opportunity Reconc iliation Act of 1996 authorized the CCDBG with current funding level providing assistance to only one out of 10 eligible children. Available at www.naeyc.org/policy/federal/ccdbg.asp 144 Food Stamp Act of 1964 was renamed Food Stamp Act of 1977, 7 U.S.C. 201 1 et seq Pub. L. 88 525, Aug. 31, 1964, 78 Stat. 703. See also Child Nutrition and WIC Reauthorization Act of 2004, 42 U.S.C. 1751 et seq. Pub. L. 108 265,June 30, 2004 amended the Food Stamp Act to ease the certification and verification process for food stamp households with school age children in public and private schools (Richard B. Russell National School Lunch Act, 42 U.S.C. 1751 et seq .) 145 Workforce Investment Act of 1998, 20 U.S.C. 9201 et seq Public Law 105 220, Aug. 7, 1998, 112 Stat. 936. 146 Ho using Act of 1937, 42 U.S.C. §§ 1437 et seq Sept. 1, 1937, ch. 896, 50 Stat. 888 Housing and Urban Development, Tenant Based Assistance: Housing Choice Voucher Program. Available at www.access.gpo.gov/nara/cfr/waisidx_00/24cfr982_00.html 147 No Child Left B ehind Act of 2001, 20 U.S.C. 6301 et seq Pub. L. 107 110, Jan. 8, 2002, 115 Stat. 1425. Available at www.ed.gov/policy/elsec/leg/esea02/index.html 148 Id

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91 91 yearly progress toward meeting the goals of NCLB. With this law, federal educational policy was no longer limited to small categorical programs for underserved children but addressed general curriculum. Most controversial in this proposed plan was the voucher program. Due to congressional opposition, the voucher p rovision for private schooling was defeated and removed from the bill. 149 Liberty and Parental Rights An existing fundamental controversy within educational policy has been whether the interests of the state take precedence over parental interests. James Co leman underscored this point in a book preface. He stated, "The history of education since the industrial revolution shows a continual struggle between two forces: the desire by members of society to have educational opportunity for all children, and the d esire of each family to provide the best education it can afford for its own children." 150 In a historic essay David Tyack describes the struggle between parents and the state: be seen as part of significant shifts in the functions of families and the status of children and or at least some families, like those of the poor and foreign born were failing to carry ou t their traditional reflected an animus against parents considered incompetent to train their children. Often combining fear of social unrest with humanitarian zeal, refo rmers used the powers of the state to intervene in families and to create alternative institutions of socialization. 151 149 See New York Times, May 3, 2001. Availabl e at http://www.nytimes.com/2001/05/03/politics/03EDUC.html Washington Post June 15, 2001. Available at http://washingtonpost.com/ac2/wp dyn/A3404 2001Jun14?language ; New York Times June 15, 2001. Available at http://www.nytimes.com/2001/06/15/politics/15EDUC.html 150 James Coleman, In forward to George D. Strayer and Robert M. Haig. The Financing of Education in the State of New York New York: The Macmillan Rodriguez v. San Antonio Independent School District 411 U.S. 1, 49 (1973). 151 Harv. Educ. Rev 355, 363 (1976).

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92 92 Additionally, public school vouchers involve the question of control. Who is in charge of e state? From the parental viewpoint, two slightly different arguments exist. One position asserts that the right to raise children is fundamental, therefore any direction by the state over education is illegitimate. The second states that since parents ar educational decisions. 152 State courts, after interpreting state constitution and statutes, find that the state is concurrently responsible with parents for providing a basic publi c education to children and ensuring that children are minimally educated citizens. In Zelman v. Simmons Harris 153 the U.S. 154 From a multitude of opinions presented in briefs and during oral arguments, the Court found the issue of parental freedom of choice compelling. More and more, parents desire the freedom to make choices about the schools their children attend. 155 Parental rights and educational choice are intertwined with the longst anding American ideal of liberty. Liberty can be defined as the rights of individuals to make decisions from among different courses of action. 156 Voucher proponents who favor universal vouchers, argue that parents should have the liberty to choose any pub lic or private school for their 152 Harry Brighou se. School Choice and Social Justice New York: Oxford University Press, 2000, 28. 153 536 U.S. 639 (2002). 154 Teachers College Recor d 2002. Available at http://www.tcrecord.org/PrintContent.asp?ContentID=10952 155 Public Schools by Choice Joe N athan, ed. St. Paul, MN: The Institute for Learning and Teaching, 1988, 45 46. 156 See David H. Monk. Educational Finance: An Economic Approach. New York: McGraw Hill Publishing Company, 1990, 16; Louann A. Bierlein. Controversial Issues in Educational Polic y. Newbury Park, CA: Sage Publications, 1993, 3.

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93 93 children, with public funding supporting all or a portion of the costs. Some proponents claim that Pierce v. Society of Sisters 157 provides the precedent for that opinion. In Pierce the U. S. Supreme Court unanimously held th at the Compulsory Education Act 158 requiring all children to 159 Voucher advocates who are in favor of targeted vouchers assert that this fundamental attendance laws highlight the fact that education is tremendously important to individual s and to society. Therefore, parents should have the right to direct the education of their children within the bounds of reasonable state control. 160 The 161 162 Individuals on both sides of the school voucher debate share similar concerns. Amy Gutmann, an opponent of school vouchers, writes that if parents are unfit to make educational 157 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). 158 Ore. Gen. Laws, ch. 1, p.9 (1923). 159 Pierce 268 U.S. at 535. 160 alysis Archives, 2(6), 1994. Available at: http://epaa.asu.edu/epaa/v2n6.html Bill Hunter, professor at the University of Calgary, stated concerns about parental abilities to choose appropriate schooling for their children. 161 Id 162 Id

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94 94 decision for their children, society mu st intervene to protect those children. 163 Economist Herbert e immediate protector, but parental rights can be superseded when parents egregiously violate their 164 of their inabilities is unsatisfactory. Empowering the a verage family to take charge of their claim that accreditation of approved schools should make it easier for parents to make appropriate educational choices. Proponen ts of School Vouchers Proponents of vouchers are a diverse group of individuals who support voucher programs more liberal, seeking increased educational opportu nity for low income students. Voucher proponents are committed to personal choice/ individual freedom in education. At this time, school vouchers are supported most strongly by those with a conservative philosophy. 165 In general, conservatism regards the fre e market system as the preferable economic system, even though capitalism has a tendency to produce social, economic, and political inequalities. The conservative viewpoint suggests that the role of government should be limited and should not aggressively seek to redistribute wealth and eliminate inequalities. 163 Amy Gutmann. Democratic Education Princeton, NJ: Princeton University Press, 1987. 164 2(6), 1994. Available at: http://epaa.asu.edu/epaa/v2n6.html Herbert Gintis made this statement in response to a question about public schools as a market system. 165 Myron Lieberman. Privatization and Educational Choice New York: St Martins Press, 1989.

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95 95 Primary control of education should rest with the states, not the federal government or the courts. This viewpoint encourages an educational system with limited or no government control in order to ma ximize individual choices. 166 An increasing number of evangelicals and fundamentalists have found their moral and religious beliefs at odds with the public schools and have turned to private schools that are consistent with their beliefs. They see vouchers as a legitimate way for children to receive an education at public expense. They feel their perspective has been systematically removed from public schools. Following Everson v. Board of Education 167 the U. S. Supreme Court used the Establishment Clause to invalidate a variety of state and local educational practices that promoted religion. These practices included state sponsored, nondenominational prayer in which student participation was voluntary; 168 starting the school day with Bible reading and recitati on 169 posting of the Ten Commandments in school rooms; 170 and beginning the school day with a moment of silence for either meditation or voluntary, teacher led prayer. 171 Through the years, school voucher proponents have adopted the rhetori c of bondage and liberty, class differences, and consumer economics in support of their cause. Low income, minority students in public schools are often described as being "held hostage" or as 166 James G. Ward, eds. Spheres of Justice in Education: The 1990 American Education Finance Association Yearbook New York: Harpe r Business, 1991, 297 316. 167 330 U.S. 1, 67 S. Ct. 504 (1947). 168 Engel v. Vitale 370 U.S. 421 (1962). 169 Abington School District v. Schempp 374 U.S. 203 (1963). 170 Stone v. Graham 449 U.S. 39 (1980). 171 Wallace v. Jaffree 472 U.S. 38 (1985).

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96 96 "captives." 172 Public schools are said to be monopolistic and unr esponsive to the needs of students in urban schools. Voucher advocates draw attention to the fact that parents with higher incomes have choices about where their children attend school while poor families do not have the same choices. Wealthy families can pay private school tuition and, more importantly, they can purchase homes in neighborhoods that have the good schools. Low income families do not have these choices. Fairness demands that the poor, whose children are in failing schools, have the same educ ational opportunities. Public education as it is currently organized is inequitable. Voucher advocates argue that school vouchers give poor parents the freedom to become consumers of educational services for their children, resulting in the improvement of all schools. Voucher advocates emphasize the benefits to individuals that result from providing more education options and argue that voucher systems provide poor families with educational choices that only the wealthy enjoy. 173 If the free market, instead of the government, becomes the primary regulatory mechanism for schools, parents would have the freedom to decide their children's educational placement. Lastly, vouchers are seen, as the remedy for rising public school spending that has not brought higher average student performance and the failure to close the achievement gap between the races and socioeconomic classes. 174 172 See David W. Kirkpatrick. Choice in Schooling: A Case for Tuition Vouchers Baltimore, MD: Loyola University Press, 1990. 173 Phi Delta Kappan 81, 5 (January 2000): 371 78. 174 See Journal of Economic Perspectives 1996, 10:4, 51 rs/dailyreport/archive/2855376.html (last visited Feb. 2, 2007).

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97 97 School Voucher Opponents School voucher opponents strongly believe that nowhere in the world is access to educational opportunity bro ader than in the United States. 175 Public school advocates maintain that as the United States has become more diverse, public education stands out as the one institution that unifies Americans. Public schools are committed to educate all students and private schools provide a useful purpose but do not offer the same guarantee to all students. producers of values, perspectives, knowledge, and skills which are fundamental to commu 176 177 by the erosion of the public forum where all citizens participate in discussions over what constitutes an appropriate public education. 178 Voucher opponents view education as a public good and see the goals of education as advancing and sharing knowledge, while the main goal of the free market is to maximize profits. 179 defense or the efficient product or service at a profit. 175 Louann A. Bierlein. Controversial Issues in Educational Policy. Newbury Park, CA: Sage Publications, 1993, 1. 176 See 1996. Available http://www.weac.org/resource/may96/vouchers.htm (last visited Jan. 27, 2007). 177 Brian P. Gill, P. Michael Timpane, Karen E. Ross, and Dominic J. Brewer, Rhetoric Versus Reality: What We Know and What We Need to Know About Vouchers and C harter Schools. Santa Monica, CA: RAND, 2001, 22. Available at http://rand.org/publications/MR/MR1118/MR1118.ch1.pdf (last visited Feb. 2, 2007). 178 Michael Mintrom. Policy Entrepreneurs and School Choice. Washington D.C.: Georgetown University Press, 2000 2 3. 179 Journal of Philosophy of Education 25(2): 209 218, 1991, 211.

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98 98 Voucher opponents fiercely argue against that view of education as a commodity that should be regulate d by market forces. In 1996, the Twentieth Century Fund reported that giving public funds to private individuals means "education ceases to be a collective public undertaking and becomes instead a private relationship between each family and its school. Sc hooling ceases to be part of the public sphere; no longer a public service, it becomes a consumable item." 180 Alex Molnar, an advocate for public schools, states Over time, market values have eroded and debased the humane values of democratic civil society. Listen closely to the language that already fills discussions about school reform. It is the language of commerce applied to human relationships. Children are defined as is allowed to dominate society, relationships are inevitably turned into commodities to be bought or sold. 181 Opponents of school vouchers believe strongly in the importance of a common civic and collective national interest. Educational policy is designed t o promote the common good; therefore it should be a matter in the public, rather than the private, domain. "The 'public' in public schools means not just paid for by the public but procreative of the very idea of a public. Public schools are how a public -a citizenry -is forged." 182 Opponents argue that public school vouchers fail to help economically disadvantaged students, while jeopardizing the democratic ideals that underlie publicly funded, universally anger in the market based choice proposals is not that they might allow some students to attend privately run schools at public expense, but 180 Carol Ascher, Norm Fruchter, and Robert Beme. Hard Lessons New York: Twentieth Century Fund Press, 1996, 7. 181 Alex Molnar. Giving K ids the Business Boulder, CO: Westview Press. 1996, 184. 182 Benjamin Barber. "America Skips School," Harper's Magazine. November 1993, 43.

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99 99 that they will erode the public forums in which decisions with societal consequences can democratically be resolved 183 Voucher opponents claim that voucher advocates who support marketplace education have a political agenda that has nothing to do with concern for lower income students. The belief is that wholesale vouchers would allow the wealthy to free themselves fro m the legislative and legal safeguards (i.e., affirmative action) won for the disenfranchised in the l960s. 184 Public school supporters argue that t he forms of protection that exist for low income families have been secured by governmental regulation, not th e free market. They argue that deregulation over the past decade has eroded those protections and greatly increased the disparity between the wealthy and the poor in the United States. According to these opponents, a market system of education is merely an extension of deregulation and promises to compound social inequities. 185 In addition, voucher opponents claim that even though the many governmental regulations (i.e., desegregation, bilingual education, and education of the handicapped) in public schools have not adequately secured equality of educational opportunity, it does not follow that the market can do any better. 186 Free market opponents argue that education is a fundamental right that should not be distributed according to parental income. Their ju stification for government run schools is the belief in redistribution of educational opportunity. Parental resources are unequal, so even with a 183 Jeffery R. Henig. Rethinking School Choice: Limits of the Market Metaphor. Princeton, N.J.: Princeton University P ress, 1993, xiii. 184 Education, Inc. Turning Learning into Business Alfie Kohn and Patrick Shannon, eds. Portsmouth, NH: Heinemann, 2002. Available at http://www.rethinkingschools.org/special_reports /voucher_report/v_sosholw.shtml (last visited Feb. 1, 2007). 185 http://www.rethinkingschools.org/SpecPub/sos/soshollo.htm#6b 186 Id.

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100 100 well functioning private market system there will be differences in the quality of education that children rec future earning opportunities. 187 In summary, according to opponents, vouchers negatively impact public schools and society as a whole by diverting public funds, attentio n, and commitment to private entities. 188 motivated students and most involved parents to private schools, leaving behind the more poorly performing or disruptive students the private schools will not accept. 189 Opponents argue that private school funds are unaccountable to governmental authorities, 190 improperly move public standards; 191 and discar d the idea of a commitment to common future 192 because private schools may not promote cultural tolerance and democratic values. 193 Lastly, public school supporters 187 See Victor Fuchs, eds. Individual and Social Responsibility: Child Care, Education, Medical Care, and Long Term Care in America Chicago, IL: University of Chicago Press, 1996, 277 304. 188 See Marcus Egan. Keep Public Education Public: Why Vouchers Are a Bad Idea Alexandria, VA: National School Boards Association, 2003, 15. Available at http://www.nsba.org/site/docs/33800/33736.pdf (last visited Jan. 26, 2007). 189 U. S. Secretary of Education Richard Riley for speech at the National Press Club, Washington, D.C, September 23, 1997. Washington, DC: U. S. Department of Education, 1997. Available at http://www.ed.gov/Speeches/09 1997/index.html (last visited Jan. 27, 2007). 190 See Rethinking Schools Online Available at http://www.rethinkingschools.org/special_reports/voucher_report/vvouc1 41.shtml (Updated on May 12, 2003). 191 See Community Youth Development Journal Volume 2, No. 3, Summer 2001. Available at http://www.cydjournal.org/2001Summer/lutzy _0613.html (last visited Jan. 27, 2007). 192 Id. 193 See The American Prospect Online Edition Jul 11, 2002. Available at http://www.prospect.org/web/page.ww?section=root&name=V iewWeb&articleId=790 (last visited Jan. 27, 2007).

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101 101 claim that school vouchers are constitutionally suspect even though the U. S. Supreme Court has upheld a voucher program in Cleveland. 194 School Voucher Politics 195 Ideology and partisanship are the most strongly rel ated characteristics that define support and opposition for vouchers. Political ideology forms policy, since policymakers either support or oppose vouchers according to their different worldviews regarding the purposes and desired outcomes of education. Va lue conflicts make it difficult for policymakers to reach consensus concerning goals for education or which goals should receive priority. A tension exists between the values of concern for the collective good and the concern for personal liberty. 196 These v alues or attitudes are directly related to educational policies. 197 While values encompass the political rhetoric, school voucher implementation rests heavily on how interest groups calculate their own benefits or losses. School vouchers have been a recurri ng and politically emotional issue at both the federal 198 and state 199 levels for decades. The debate raises questions about how to interpret the federal and 194 See Anti http://adl.org/vouchers/vouchers_constit_suspect.asp (last visited Jan. 27, 2007). 195 Sheila Suess Kenned Phi Delta Kappan 82,6. (Feb 2001): 450 456. Available at http://www.pdkintl.org/kappan/kken0102.htm (last visited Feb. 2, 2007). 196 See John Witte. The Market Approach to Education: An Analysis of Ameri Princeton, NJ: Princeton University Press, 2000, 11. 197 Joel Spring. American Education 9 th edition. New York: McGraw Hill, 2000, 22. 198 D.C. School Choice Incentive Act of 2003 (Title III of Division C of the Consolidated Appropr iations Act, 2004); (Pub. L. 108 199, Stat. 3) to Fiscal Year 2004 Omnibus Appropriations Bill (H.R. 2673); The District of Columbia fiscal 2004 Appropriations Bill (HR 2765). Available at http://www.ed.gov/programs/dcchoice/legislation.html 199 A publicly f See California Proposition 38 (2000), 71% of voters voted no to the school voucher initiative; Michigan Proposal 00 1 School Choice (2000), 70% of voters voted no to school voucher initiative; Washington (1996) 64% of voters voted no to

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102 102 state constitutions and how to best educate children. Many proponents 200 and opponents 201 of school voucher 202 Michael Engel noted, "It is not possible to offer empirical or quantitative evidence that a democratic school system is somehow superior to one based on market mode ls. Rather it is 203 American public education is a reflection of the political philosophy of policymakers and the social and cultural traditions of the general population. The political spectru m ranges from conservative to liberal persuasions within the two major political parties. For decades liberals and conservatives have disagreed about educational policy. Policymakers incorporate aspects from many viewpoints while serving multiple constitue ncies. In this process education becomes the focal point for public debate and criticism. To better understand the fundamental differences involved in the school voucher debate participants and agendas need to be identified. the school voucher initiative; California (1993) 70% of voters voted no to the school voucher initiative; Colorado (1992) 67% of voters voted no to school voucher initiative; Michigan Proposal of 197 8 was defeated at the polls by a margin of 74.3 percent to 25.7 percent (http://www.crcmich.org/PUBLICAT/2000s/2000/rpt331.pdf); and Maryland (1972) 55% of voters voted no to school voucher initiative. 200 See Milton Friedman. Capitalism and Freedom. Chicago : University of Chicago Press, 1962; John E. Coons and Stephen D. Sugarman. Education by Choice: The Case for Family Control Berkeley: University of California Press, 1978; John E. Chubb and Terry M. Moe. Washingt on, D.C.: Brookings Institution Press, 1990; John E. Coons and Stephen D. Sugarman. Scholarships for Children University of California, Berkeley: Institute of Governmental Studies Press, 1993; and Andrew J. Coulson, Market Education: The Unknown History New Brunswick: Social Philosophy and Policy Center and Transaction Publishers, 1999. 201 See Amy Stuart Wells. Time to Choose: America at the Crossroads of School Choice Policy New York, NY: Hill and Wang, 1993; Peter W. Cookson, Jr. School Choice: The Stru ggle for the Soul of American Education New Haven: Yale University Press, 1994: Kevin B. Smith and Kenneth J, Meier. The Case against School Choice: Politics, Markets, and Fools Armonk, N.Y.: M.E. Sharpe, 1995; and Bruce Fuller and Richard F. Elmore, eds Who Chooses? Who Loses? Culture, Institutions, and the Unequal Effects of School Choice New York: Teachers College Press, 1996. 202 Terry M Moe. Schools, Vouchers, and the American Public Washington, D.C.: Brookings Institution Press, 2001, 2. 203 Michael Engel. The Struggle for Control of Public Education: Market Ideology vs. Democratic Values Philadelphia: Temple University Press, 2000, 65.

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103 103 Democrats/Republicans Politicia ns are divided on the school voucher issue mostly along party lines, with Democrats typically opposed and Republicans generally in favor. Both political parties recognize that education is an important issue to voters and American society. They recognize t he public demand for more flexibility and accountability in education with failing schools being a priority. Major educational policy differences exist between the Republican and Democratic Parties regarding the appropriate degree of federal involvement i n public and private schools. 204 Both parties appear to have concerns regarding the effect of school vouchers. Republicans worry that the state might interfere with private education through the type of rules and regulations found in public education, while Democrats are concerned with the possibility of school vouchers draining resources from public schools. 205 The Republican Party is in favor of family choice in the selection of public, private, or for profit schools while Democrats prefer parent choice to be limited solely to public schools (i.e., charter schools and magnet schools). Prior to the George W. Bush presidential victory, Republicans championed many unpopular policies such as eliminating the Department of Education, cutting education spending, and proposing private school vouchers. 206 According to the Republican point of view, the two Federation of Teachers (AFT), dictate the educational policies of the Democratic Par ty. 207 In 204 Joel Spring. American Education 9 th edition. New York, NY: McGraw Hill Higher Education, 2000, 22. 205 2004 Democra http://www.democrats.org/pdfs/2004platform.pdf (last visited Feb. 2, 2007). 206 Andrew J. Rother Democratic Leadership Council Blueprint Magazine March 25, 2002. Available http://www.ndol.org/ndol_ci.cfm?kaid=110&subid=181&contentid=250319 207 se: How Legislatures and Courts Journal of Law and Education 30, 2 (April 2001): 275 303.

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104 104 general, Democrats favor parental choice limited solely to public schools. The NEA and AFT are both adamantly opposed to vouchers that can be used at private and for profit schools. Both unions consider any government support of private or for prof it schools as a threat to public schooling. opponents claim the NEA, the larger labor union, and the AFT primarily oppose school choice because religious schools need n ot recognize unions as exclusive bargaining agents for their teachers. The U. S. Supreme Court in NLRB v. Catholic Bishop of Chicago 208 held that religious schools that teach both religious and secular subjects are not within the jurisdiction of the Nationa l Labor Relations Act. 209 According to conservative legal scholars, union opposition to school choice is simply an effort to maintain a collective bargaining monopoly. If school choice proposals become widely implemented and upheld by the courts, membership and dues would decline as students and teachers transfer to religious schools that are beyond the authority of the National Labor Relations Board (NLRB). 210 Summary Beginning in the 1950s, 211 school vouchers have continuously been a controversial public policy subject. This chapter traced the path of school vouchers from a purely academic consideration to a recognized school reform implemented in select cities 212 and states. 213 The 208 440 U.S. 490 (1979). 209 29 U.S.C. §§ 151 169. 210 er Program: The Politics and the Law On Principle Vol. 6, No. 1, 1998. Available at http://www.ashbrook.org/publicat/onprin/v6n1/alt.html (last visited Feb. 4, 2007). 211 Economics and the Public Int erest Robert A. Solo, ed. New Brunswick, NJ: Rutgers University Press, 1955, 123 144. 212 See Milwaukee Parental Choice Program (Wis. Stat. § 119.23 (1995 96)) and Ohio Pilot Project Scholarship Program (Ohio Rev. Code Ann. § 3313.974 3313.979 (Baldwin Su pp.2001)).

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105 105 policy trends behind the school voucher movement provide insight into the policy arg uments on both sides of the school voucher controversy. This study focused on the constitutional issues surrounding the use of publicly funded vouchers to pay for elementary and secondary education at religious schools, but, to thoroughly understand the un derlying assumptions and implications of legal commentary on the school voucher controversy, it was first necessary to comment on vouchers as public policy. Justifiable arguments exist on both sides of the voucher debate. Particular values and ideologica l perspectives are associated with advocates on both sides of the school voucher issue. It is critical that policymakers question how institutions governing the education of children should be structured. In addition to defining what constitutes a good ed ucation, the political process must define the boundaries of state control with regards to ensuring a quality education for students. 214 Policymakers oppose or support school vouchers for a variety of reasons. No one fact exists that single handedly resolv es the school voucher policy debate. It is reality that policymakers are forced to make tradeoffs between competing or complementary policy goals. Political, legal, and philosophical considerations continue to shape decisions about school vouchers. The ide ologies presented are based on central values that Americans hold in high esteem, but are in conflict. Debates over school vouchers deal with the hopes and fears about American society and particularly the tension that exists between individual liberty and cultural unity. 213 Fla. Stat. § 229.0537. 214 Harry Brighouse. School Choice and Social Justice New York: Oxford University Press, 2000, 2.

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106 106 The school voucher debate reflects the fundamental economic choice policymakers face when deciding how to allocate scarce resources: whether to use the marketplace or to use government as the predominant regulator. 215 There are no proven, c lear cut solutions. Since the suited to the effective performance of 216 legislators must decide whether to reform the present paradigm or to build a completely new one. These choices rely on individual conclusions regarding meaningful change prospects within the current educational structure, and on values that, hopefully, will enhance both fairness and productivity. 217 215 C. Wolf, Jr. Markets or Governments: Choosing between Imperfect Alternatives. RAND Research Study. Cambridge, MA: MIT Pr ess, 1993, 1. Available at http://www.rand.org/pubs/notes/2006/N2505.pdf (last visited Feb. 4, 2007). 216 John E. Chubb and Terry M. Moe. Washington, DC: Brookings Institution Press, 1990, 21. 217 Helen F. Ladd and Jan et S. Hansen. Washington, D.C.: National Academy Press, 1999, 164.

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107 107 CHAPTER 3 ESTABLISHMENT CLAUSE JURISPRUDENCE Introduction Since the early 1900s, the U. S. Supreme Court has resolved a broad array of constitutional appeals that involve public elementary and secondary schools. By 1918 all states had adopted compulsory school attendance laws. Compulsory attendance laws required all child ren to attend state approved schools. The early public school cases before the Court dealt with Fourteenth Amendment issues. In Pierce v. Society of Sisters 1 the U. S. Supreme Court unanimously over turned an Oregon law that would have required all childr en to attend only public schools. The Court held that the Oregon Compulsory Education Act 2 requiring all children to attend public schools violated the due process clause of the Fourteenth Amendment. The due process clause states, rive any person of life, liberty, or property without due process of law." 3 The landmark decision established the right of privately operated schools to coexist with publicly operated and funded school systems. The Court affirmed that the state may reasona bly regulate all schools and may require all children to attend some school, but the state may not force children to attend only public schools. In Pierce upbringing and education o 4 Currently, some scholars view Pierce Pierce as providing precedent for school vouchers, especially for low income families who 1 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). 2 Id. 3 U. S. Const. Amend. XIV § 1. 4 Pierce at 534 35.

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108 108 cannot afford private school tuition. 5 The Pierce decision was an extension of the Meyer v. Nebraska 6 7 Parents have a constitutional guarantee to determine placement of their children in either public or nonpublic schools. In affirming a lower court decision the Court concluded: Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and educa tion of children under their control. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. 8 In 1930 the U. S. Supreme Court in Cochran v. Louisiana State Board of Education 9 ruled on the issue of indirect aid to parochial school students. In 1930 the Court upheld a 1928 state, including children attending priv ate schools. 10 Cochran protested under the Fourteenth Amendment claiming his property was taxed for private education and that was taxation without due process. 11 sch ools obtain nothing from them, nor are they relieved of a single obligation because of them. 5 See ntal Rights Challenge to School Control: Has the Supreme Court Mandated School 32 J.L. & Educ. 139, 169 (2003). 6 262 U.S. 390 (1923). 7 Id. at 400. 8 Pierce 268 U.S. at 535. 9 281 U.S. 270 (1930). 10 Id. at. 374 11 Id. at 374

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109 109 12 The Court unanimously upheld Justice Hughes writing for the majority wrote: Viewing the statute as having the effect thus attributed to it, we cannot doubt that the taxing power of the state is exerted for a public purpose. The legislature does not segregat e private schools or their pupils, and its beneficiaries, or attempt to interfere with any matters of exclusively private concern. Its interest is education, broadly; its method comprehensive. Individual interests are aided only as the common interest is s afeguarded. Judgment affirmed. 13 The Court ruled that the Fourteenth Amendment does indeed, forbid the states from depriving a person of life, liberty, or property without due process of law. However, according to texts to all school children serves the public interest and not a private interest of church schools in such a way as to violate the due process clause. The Louisiana statute that allowed providing secular textbooks to students attending private religious schools and to those attending public school was found constitutional. 14 Doctrinal Background In aid to religious school cases, the critical provision of the U. S. Constitution is the Establishment Clause of the First Amendment, which reads: "Congress shal l make no law respecting an establishment of religion. ." 15 A brief review of the Court's Establishment Clause jurisprudence is necessary in order to understand how Zelman v. Simmons Harris aligns with previous U. S. Supreme Court decisions. This chapter relies on narrative and opinion excerpts to demonstrate how the U. S. Supreme Court, during the past sixty years, has interpreted the 12 Id. at 375. 13 Id a t374 14 Perry A. Zirkel. A Digest of Supreme Court Decisions Affecting Education (3 rd ed.). Bloomington, IN: Phi Delta Kappa, 1995. 15 U.S. Const. Amend. I

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110 110 Constitution concerning public aid to religious schools. 16 The reasoning of the Court has fluctuated from case to case and decision to decision reflecting the philosophies and dispositions of shifting majorities. 17 Public education Establishment Clause issues have to do with the extent to which the state may aid religious schools and the extent to which religion may be advance d by public schools. An overview of the most significant court cases dealing with the degree to which public funds can be used to support the education of private school students, in particular religious schools, over the last fifty plus years follows. It is crucial to note that many of these rulings are very fact specific and should be analyzed and applied cautiously to other fact situations. The Court has attempted to define the conditions under which public aid to religious schools is permissible under the Establishment Clause of the First Amendment. 18 "Congress shall shall make no law respecting an establishment of religion," 19 commonly referred to as the Establishment Clause, was the legal basis in Zelman v. Simmons Harris 20 The Establishment Clause separates government and religion to maintain religious freedom while sharing a commitment to liberty and equality. This study focused on the U. 16 See Zelman v. Simmons Harris 536 U.S. 639 (2002); Mitchell v. Helms 530 U. S. 793 (2000); Agosti ni v. Felton 521 U.S. 203 (1997); Wolman v. Walter 433 U.S. 229 (1977); Meek v. Pittenger 421 U.S. 349 (1975); Comm. For Pub. Educ. & Religious Liberty v. Nyquist 413 U.S. 756 (1973); Lemon v. Kurtzman 403 U.S. (1971); Bd. Of Educ. v. Allen 392 U.S. 236 (1968); Everson 330 U.S. 1. 17 Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools An Update 75 Cal. L. Rev. 5, 6 (1987); Michael W. McConnell & Richard A. Posner, An Economic Approach To Issues of Religious Freedom 56 U. Chi. L. Rev. 1, 25 26 (1989). 18 See Lemon v. Kurtzman 403 U.S. 602 (1971); Committee for Public Education and Religious Liberty v. Nyquist 413 U.S. 756 (1973); Mueller v. Allen 463 U.S. 388 (1983); Agostini v. Felton 521 U.S. 203 (1997); and Mitchell v. Helms 530 U.S. 793 (2000). 19 U.S. Const. Amend. I § 1. 20 Zelman v. Simmons Harris 536 U.S. 639 (2002).

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111 111 exclusive reliance on the Establishment Clause when deciding cases of public funding for religi ous schools. 21 The constitutionality of school voucher programs that permit religious school participation rely on the U. Establishment Clause is one of the most passionately deba ted sections of the Constitution. At first glance it appears to be straightforward, but interpreting its meaning when dealing with government aid to religious schools has proved to be a controversial and challenging task. 22 While there is general agreement that the government may not create a formal establishment by recognizing a state church, taxing citizens to support churches, or requiring church membership, broad consensus ends there. The history surrounding the enactment of the Establishment Clause lea ves the intent of the Framers open to several interpretations. 23 There exists little primary evidence regarding the 24 The U. S. Supreme Court views regarding the Establishment C lause range from strict separationists, who believe that even incidental aid to or recognition of religion by government violates the Establishment Clause, to accommodationists, who believe that government should act according to the religious character of the people, and that non preferential aid to religious institutions does 21 The state of Maine has examined the Free Exercise implications of its voucher program. Tuition payments to secondary school students, whose school distric t does not have a secondary school, are available only to students attending non religious schools. The Maine Supreme Court held that denying religious schools from participation in e of religion and therefore does not violate the Free Exercise Clause. Bagley v. Raymond School Dept ., 728 A.2d 127, 130 (Me. 1999). 22 See Mitchell v. Helms Everson we have consistently struggled to ap 23 Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment Washington, D.C.: American Enterprise Institute, 1978. 24 Leonard W. Levy, The E stablishment Clause: Religion and the First Amendment 2 nd ed. Chapel Hill: University of North Carolina Press, 1994. p. xxiii.

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112 112 not constitute an establishment of religion. Justice Rehnquist while concurring with Justice White in Mueller v. Allen 25 remarked, It is easy enough to quote the few words constituti assistance to sectarian schools and th e parents of children attending those schools. Indeed, only dimly perceive the lines of demarcation in this extraordinarily sensitive area of 26 Strict Separation According to the theory of strict separation, the Establishment Clause disallows any explicit a point on which the entire nation agreed: the United S tates had no power to legislate on the subject of religion." 27 Separationists point to founding father James Madison, author of the Establishment Clause, who advocated a complete denial of state support for any type of religious activity. 28 Separationists co ntend that the Establishment Clause erects a "wall of separation between Church and State" 29 that does not allow any public funds to benefit a religious organization. Consequently, according to separationists school voucher programs that provide money to pr ivate, religious schools are unconstitutional. 25 103 S.Ct. 3062 (1983). 26 Mueller at 3062. 27 Leonard Levy. The Establishment Clause: Religion and the First Amendment. (2d ed.) Chapel Hill, N.C.: North Carolina Press, 1994, 111. 28 I d at 122. 29 It is important to note that the phrase "separation of Church and State" does not appear in the United States Constitution. Rather, it was first utilized by Thomas Jefferson in a letter to the Danbury Baptist Association in 1802. See id. at 246

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113 113 Nonpreferentialism Nonpreferentialism is the converse of strict separation and holds that the Establishment Clause simply prevents the federal government from benefiting one religion over all other religions a nd establishing a national church. 30 For historical support, nonpreferentialists point to the Congress that passed the First Amendment and the same Congress that reenacted the Northwest Ordinance, which declared: "Religion, morality, and knowledge being nec essary to good government and happiness of mankind, schools and the means of education shall forever be encouraged." 31 Nonpreferentialists conclude that Congress did not intend the Establishment Clause to forbid government interaction with religion. 32 Nonpr eferentialism asserts that the state may provide support to a religious organization so long as it provides equal support to all other religious organizations. The nonpreferentialism approach first appeared in the 1984 dissent by Justice Rehnquist, however it was not adopted by a majority of the U. S. Supreme Court. 33 Rehnquist wrote, The Framers intended the Establishment Clause to prohibit the designation of any church a sserting a preference for one religious denomination or sect over others. Nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuin g legitimate secular ends through nondiscriminatory sectarian means. 34 30 See Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction New York: Lambeth Press, 1982, 5. 31 Ordinance of the Northwest Territory, 1Stat. 51 (1787). 32 See Michael J. Malbin. Religion and Politics: The Intentions of the Authors of the First Amendment Washington, D.C.: American Enterprise Institute, 1978, 14 15. 33 Wallace v. Jaffree 472 U.S. 38 (1985), the Court struck down an Alabama statute to establish a moment of silence in public schools on Establishment Clause grounds. Id at 61. In strong dissent, Rehnquist argued the nonpreferentialist viewpoint in terms of the Establishment Clause. 34 Id at 113.

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114 114 Therefore, from this perspective, a voucher program that permits religious school participation does not violate the Establishment Clause even though it benefits religious schools, as lo ng as the government does not discriminate amongst religions. Government Neutrality Government neutrality is a compromise between strict separation and nonpreferential interpretations. It suggests that government should take a neutral position between ch urch and state without favoring either. From a government neutrality approach, the Establishment Clause forbids preferential treatment of religion over non religion and non religion over religion. The Constitution requires equal treatment of religion, not discrimination against it. U. S. Supreme Court Justice William Brennan clearly expressed this view when he said, "government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits." 35 Justice Brenn subversive of American ideals and therefore subject to unique disabilities." 36 From this perspective government may treat religious groups the same as other nonreligious groups. This interpretation constitutionally permits states to provide reading teachers to low performing students at religious schools, 37 allows states to provide computers to both religious and public schools, 38 and permits religious schools to participate in a generally available voucher program. 39 35 See McDaniel v. Paty 435 US 618, 639 (1978), which struck d own a law that banned clergy from public office. 36 Id. 37 Agostini v. Felton 521 U.S. 203 (1997). 38 Mitchell v. Helms 530 U.S. 793 (2000). 39 Zelman v. Simmons Harris 536 U.S. 639 (2002).

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115 115 Early Cases: Separationist Perspective In 1947 the Court first addressed the constitutionality of public funds flowing to religious schools in Everson v. Bo ard of Education 40 The Court upheld a New Jersey statute 41 authorizing do es no more than provide a general program to help parents get their children regardless of their 42 The Court reasoned that transportation was a neutral, supplemental service, unrelated to t he religious purpose of sectarian schools, and therefore constitutional. 43 The legislation also served the secular purpose of protecting the welfare of all the state's schoolchildren. 44 In a 5 equires the state to be neutral in its relations with groups of religious believers and non believers; it does not require the state to be their adversary. State 45 Justice H ugo Black, writing the majority opinion, adopted a separationist position. After 46 and defined permissible or impermissible practices. the state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can f orce him to 40 330 U.S. 1 (1947). 41 Id at 3 n. 1 (citing 1941 N. J. Laws 191; N.J. Rev. Stat. § 18:14 8). 42 Everson 330 U.S. at 18. 43 Id. at 17 18. 44 Id at 17. 45 Id 46 330 U.S. 1, 15 16 (1947). See also Reynolds v. United States 98 U.S. at page 164, 25 L.Ed. 244.

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116 116 profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of of separation between Church and State. 47 The Everson opinion proposed two positions that were fundamentally incompatible. Justice Black introduced the wall of separation metaphor as a controlling limitation on state power. Yet the Court, using the theory of neutrality to believers and nonbelievers alike held in favor of state reimbursement of bus transportation costs for par ents of public and private religious students. 48 favor them." 49 The Court found it compelling that "[t]he State contributes no money to the schools." 50 The Court rea soned that under the New Jersey statute, the state does not financially support religious schools. 51 Therefore, the New Jersey statute had not breached the First Amendment's "wall between church and state." 52 In dissenting, Justice Robert Jackson insisted th separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educationa 53 In regards to the logic upon which the child benefit 47 Everson 330 U.S. at 15 16. 48 S. H. Friedelbaum. The Religion Cl auses: Perennial Themes, Unsettled Directions in The Rehnquist Court: In Pursuit of Judicial Conservatism Westport, CT: Greenwood Press, 1994, 95. 49 Everson 330 U.S. at 18. 50 Id 51 Id 52 Id 53 Id at 24.

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117 117 the beneficiary of this expenditure of tax raised funds is primarily the parochial school a nd incidentally the pupil, or whether the aid is directly bestowed on the pupil with indirect benefits 54 Justice Wiley Rutledge wrote in his dissent that the Cochran decision had opened the way Everson decision and warned that these two decisions would create a rationale 55 nd purpose (to provide safe transportation for all students), that aid was indirect (it was not paid directly to a religious institution), that beneficiaries of the aid were children (not churches), and (all schoolchildren w ere eligible for aid). These themes foreshadowed the legal standard the Court eventually crafted. 56 Finally, Everson illustrated the divisiveness and complexity of establishment cases. The majority and the dissenters of the Everson opinion all agreed with a strict separation of church and state and yet came to different conclusions. This has set the pattern for future establishment cases. 54 Id 55 Id. at 29. 56 Lee Epstein & Thomas G. Walke r. Religion: Exercise and Establishment in Constitutional Law for a Changing America: A Short Course, 2 nd Ed. Washington, D.C.: CQ Press, 2000, 379

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118 118 The Everson decision was the initial determination by the Court to define the permissible interaction between religion an d public schools under the Establishment Clause. 57 The Court attempted to reconcile the tension between the Establishment Clause, which had historically been 58 and the Free Exercise Clause, 59 which pr ohibits discrimination based on religious beliefs. 60 The Everson court established a "non discrimination" theory, whereas government may not advance or inhibit religion, thereby replacing the view that the Establishment Clause permits no aid of any kind to religious institutions. 61 The precedent established that acceptable government aid to religious schools was possible in situations where activities other than direct religious education were funded. In Board of Education of Central School District v. Allen 62 the U. S. Supreme Court re 63 which originally had been addressed in Cochran. 64 A New York State statute r equired local public school authorities to lend textbooks free of charge to public and private school students in grades seven through twelve. Appellant Board of Education of Central School District No. 1 in Rensselaer and Columbia Counties 57 U. 58 See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279 (2001) (discussing the evolution of the modern Establishment Clause) 59 U. f religion, or prohibiting the 60 Everson 330 U.S. at 16. 61 Id at 18. 62 392 U.S. 236 (1968). 63 Id. at 240. 64 281 U.S. 270 (1930)

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119 119 challenged the allocation of state funds for students attending private, religious schools as unconstitutional. After conceding, "the line between state neutrality to religion and state support of religion is not easy to locate," 65 the Court held that the statute was not in violation of the Constitution. Justice Byron R. White, writing for a six 66 prong from School District of Abington Township v. Schemmp 67 to reach an accommodationist outcome. The express purpose was stated by the New York legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to this stated purpose. The law merely makes available to all child ren the benefits of a general program to lend school books free of charge. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state paid bus fare in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution. 68 Justice Hugo Black who wrote the majority opinion in Everson was one of three dissenting justices (William O. Douglas and Abe Fortas) in this case. He maintained: It requires no prophet t o foresee that on the argument used to support this law others could that tax raised funds cannot constitutionally be used to support religious schools, buy their sch ool books, erect their buildings, pay their teachers, or pay any other of their prohibition against governmental establishment of religion was written on the assumption that state aid to religion and religious schools generates discord, disharmony, hatred, and strife among our people, and that any government that supplies such aids is to that extent a tyranny. And I still believe that the only way to protect minority religious grou ps from majority groups in this country is to keep the wall of separation between church and state 69 65 392 U.S. at 242 66 Id at To pass constitutional muster an enactment must have a secular legi slative purpose and a primary effect that neither advances nor inhibits religion. 67 374 U.S. 203, 83 S.Ct. 1560. (1963). 68 Allen at 69 Id at 253

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120 120 separation of church and state, inherent in the Establishment Clause of the First Amendment, is 70 Although the Court could be catego rized as adhering to a separationist philosophy in regards to church and state issues, the Court was willing to uphold some kinds of support for religion. The Allen been used in Cochran and Everson In it, the view of religious accommodation resulted in the favorable acceptance of legislation apportioning state funds to purchase textbooks for religious schools. Following Everson and Allen the Court changed its approach toward pub lic aid to religious schools. Everson and Allen 71 The Court reasoned that bus transportation and loaned textbooks were types of assistance that were secular and therefore n ot unconstitutional. Additionally, in Allen the concept of private choice began to emerge. The Court acknowledged that some public programs made benefits available to all, without regard to religion, and that families made the decision regarding the use of those benefits. The private choice of the families to use public funds at a religious school separates the state from the decision and constitutional challenges. Years later, private choice was to be a determining factor in the Zelman v. Simmons Harris de cision. 70 Id at 266. 71 to Religious Schools. Jewish Law Articles Available at httyp://www.jlaw.com/Articles/SchoolVouchers.html#2.a (last visited Mar. 22, 2007).

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121 121 Landmark Lemon and Progeny After upholding the provision of transportation services in Everson 72 and textbooks in Allen 73 for both public and private school students, the U. S. Supreme Court established a significant precedent forbidding direct aid t set the judicial tone for the majority of public aid to religious school cases during the following two decades. In 1971, the Court held in Lemon v. Kurtzman 74 that payment of sectarian schoolteachers' sal aries 75 in 76 and 77 was direct government aid to religious schools and therefore unconstitutional. Following the separationists philosophy from Everson the Cou rt stated that the Establishment Clause prohibited the establishment of a national religion and all legislation that could possibly lead to any type of establishment of religion. The Court created a three prong standard for determining Establishment Clause challenges to state statutes. 78 The tripartite Lemon test was a synthesis of essential elements articulated in previous U. S. Supreme Court cases. 79 First, the statute must have a secular legislative purpose. 80 72 330 U.S. 1 (1947). 73 392 U.S. 236 (1968). 74 403 U.S. 602 (1971). 75 Id at 606 07. 76 Pa.Stat. Ann. Tit. 24 §§ 5601 5609 (West 1992) (repealed 1977). 77 R.I.Gen.Laws Ann. § 16 51 1 to 16 51 9 (2001) (repealed 1980). 78 See Lemon 403 U.S. at 612 13. 79 School District of Abington Township v. Schempp 374 U.S. 8 Walz v. Tax Commission 397 U.S. 664 (1970). 80 See Lemon 403 U.S. at 612.

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122 122 Second, the primary effect of the statute canno t advance or inhibit religion. 81 Finally, the law cannot result in the state becoming excessively entangled with religion. 82 The Court found that both the Pennsylvania and Rhode Island statutes passed the first prong of the Lemon test, which required a secul ar purpose of promoting education. 83 The second prong, which deals with primary effect, was not addressed because the Court found the laws involved a severe entanglement between church and state. 84 The U. S. Supreme Court majority declared that both program continuing state surveillance [would] inevitably be required to ensure" that the subsidized teachers did not "inculcate religion." 85 Even though both the Rhode Island and Pennsylvania programs provided parents a choice in determining whether to send their children to private or public school, the Court found that parental free choice did not outweigh the direct aid religious schools received. 86 The Court distinguished the d irect aid programs in Lemon from the indirect aid programs upheld in Everson 87 and Allen 88 and found that in these cases "state aid was provided to the student and his his parents -not to the church related school." 89 The Court viewed direct subsidization of 81 See id at 612. 82 See id at 613. 83 See id at 613. 84 See id at 613 14. 85 See id at 619. 86 See id. at 621. 87 330 U.S. 1 (1947). 88 392 U.S. 236 (1968). 89 Lemon 403 U.S. at 621.

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123 123 rel igious schools as the equivalent of governmental indoctrination, which is prohibited by the Establishment Clause. 90 Therefore, the manner by which the benefit was provided to the religious school, and not merely the content of the public aid, was acknowled ged to be relevant to the constitutional determination. Lemon was the first in a series of cases in which the Court held unconstitutional nearly every form of aid whether it was direct or indirect to religious schools. School voucher proponents must cons ider each prong of the Lemon test when proposing aid to religious schools. To satisfy the purpose prong the legislation must show a plausible and controlling secular purpose behind the legislation. The Court has never invalidated a state program to assist religious schools on the secular purpose prong. However, the two remaining prongs of the Lemon test were more formidable hurdles. In the cases following Lemon it proved difficult to design school aid programs that did not have the primary effect of advanci ng religion or excessively entangling government and religion. 91 In 1973 the U. S. Supreme Court delivered three opinions regarding public aid to religious schools. 92 The first case was Levitt v. Committee for Public Education and Religious Liberty 93 A A New Y ork statute appropriated funds to reimburse nonpublic schools for administration, grading, compiling, and reporting of student test results. The nonpublic schools were given a single per pupil allotment and not required to account for the funds. The Court ruled that the statute impermissibly aided religion therefore violating the Establishment Clause. 90 Id at 621, 625. 91 See Committee for Public Education & Religious Liberty v. Nyquist 413 U.S. 756 (1973); Meek v. Pittenger 421 U.S. 349 (1975); Wolman v. Walter 433 U.S. 229 (1977); School District of the City of Grand Rapids v. Ball 473 U.S. 373 (1985). 92 Levitt v. Committee for Public Education 413 U.S. 472 (1973); Committee for Public Education and Religious Liberty v. Nyquist 413 U.S. 756 (1973); Sloan v. Lemon 413 U.S. 825 ( 1973). 93 413 U.S. 472 (1973).

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124 124 The Committee for Public Education and Religious Liberty v. Nyquist 94 was the second opinion delivered by the U. S. Supreme Court and remains the most potent anti voucher argument employed by voucher opponents. The significance of Nyquist was the establishment of a broad rule that public aid cannot go to religious schools if those funds are not restricted to secular expenditures. 95 The New York legislature amen ded the Education and Tax Laws to include three financial aid programs for nonpublic elementary and secondary schools. The first program, "Health and Safety Grants for Nonpublic School Children," 96 involved financial assistance to nonpublic schools for main tenance and repair of facilities. The second program was a tuition reimbursement plan for nonpublic elementary and secondary students. 97 The last statute provided tax deductions for families who did not qualify for the tuition reimbursement plan. 98 The Cour t adopted the reasoning of Lemon in invalidating all three financial aid programs for private schools holding the statutes had the primary effect of advancing religion. 99 The Court held that despite the legislature's secular purpose, the program impermissib ly endorsed religious schools 100 because the tuition reimbursements were available only to parents of students of private schools, the majority of which were religious. 101 The Court also held that the unrestricted, 94 413 U.S. 756 (1973). 95 See Rev. 709 (732). 96 See id at 762 63. The Health and Safety Grants for Nonpublic School Children pr ogram is codified at N.Y. Educ. Law. §§ 549 53. (McKinney 1988). 97 See id at 764 65. The tuition reimbursement program is codified at N.Y. Educ. Law §§ 55963 (McKinney 1988). 98 See id at 765 67. The tax deduction program is codified at N.Y. Tax Law § 612 (j) (McKinney 1988). 99 See id at 774 94. 100 See id. at 794. 101 Id. at 780.

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125 125 direct aid for religious schools is prohibite d by the Establishment Clause. 102 opinion, the New York program created a financial incentive for parents to choose religious schools over public schools 103 and therefore impermissible. 104 The Court distinguished the New York programs from the app roved aid in Everson and Allen which by the fact that the benefits of the tuition reimbursement and tax relief programs went directly to parents, not schools. The Court was adamant that "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." 105 Allen and Everson differe d from Nyquist in an important aspect. In both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools." 106 The tuition grants and tax credits at issue in Nyquist were restricted only to parents who c hose to send their children to nonpublic schools. School voucher proponents often highlight a footnote in the Nyquist majority opinion. The beneficiaries mig ht differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian nonsectarian, or public 107 Voucher proponen ts 102 Id. 103 Id at 786 87. 104 Id at 786. 105 Id at 783. 106 Id 107 See Nyquist 413 U.S. at 782 n. 38

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126 126 believe this passage suggests that school voucher programs that are facially neutral and include public, private, or religious schools pass constitutional muster. The important fact is that what is placed in a footnote is obiter dictum or dicta The com ment was extraneous to the line of reasoning that led to the decision in the case and therefore not a binding authority. In the third case, Sloan v. Lemon 108 program violated the constitutional mandate agains religion or religious institutions. After the Lemon decision the Pennsylvania General Assembly 109 The act provided funds to reimburse parents for a portion of tuition expenses incurred in sending their children to Lemon test. Justice Powell delivered the opinion of the Court stating, The State has singled out a class of its citi zens for a special economic benefit. Whether the benefit be viewed as a simple tuition subsidy, as an incentive to parents to send their children to sectarian schools, or as a reward for having done so, at bottom its intended consequences is to preserve an d support religion oriented institutions. 110 In Meek v. Pittenger 111 the U. S. Supreme Court invalidated a Pennsylvania state sponsored program that provided three types of public aid for private schools. 112 The first type of aid dealt with the lending of textbo oks to nonpublic students. Another type dealt with the state lending instructional material directly to private schools. Lastly, the state was to offer "auxiliary services" to students of private schools, which included "guidance, counseling, and testing 108 413 U.S. 825, 93 S. Ct. 2982. (1973). 109 Pa. Laws 1971, Act 92, Pa. Stat. Ann., Tit. 24 5701 5709 (Supp. 1973 1974) (the entire enactment is printed in an appendix to the District Court's opinion, 340 F. Supp. 1356, 1365 1368). 110 Sloan v. Lemon 413 US 825, 832 (1973). 111 421 U.S. 349 (1975). 112 24 Pa. Cons. Stat. Ann. § 9 972 (1992) (repeale d 1975).

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127 127 s ervices; psychological services; services for exceptional children; remedial and therapeutic services; speech and hearing services; service for the improvement of the educationally disadvantaged," "and such other secular, neutral, non ideological services as are provided for public school children of the Commonwealth." 113 The U. S. Supreme Court, as it had done previously in Nyquist analyzed the Pennsylvania programs under the Lemon test. 114 Implementing the first prong, the Court acknowledged that all three of the programs had a secular purpose. 115 Relying on the precedent from Allen 116 the Court held that the textbook loan program was constitutionally permissible. 117 The Court noted, "the textbook provisions extend to all schoolchildren the benefits o f Pennsylvania's well established policy of lending textbooks free of charge to elementary and secondary school students." 118 The Court emphasized that since textbooks are loaned directly to the student with ownership remaining with the State, it is the pare nts and children and not the private schools that benefit. 119 The Court also held that no suggestion existed that the loaned textbooks would be used for anything other than secular purposes. 120 The Meek decision reinforced the proposition that secular aid to r eligious schools may be permitted, but only as long as that aid could not be diverted to religious purposes. 113 § 9 972.1 (b); Meek 421 U.S. at 353 n.2. 114 Meek at 358 59. 115 See id at 362 63, 368. 116 392 U.S. 236. 117 See id at 359 62. 118 Meek, 421 U.S. at 360. 119 See id at 361. 120 See id at 361 62.

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128 128 In contrast, the Court held that the instructional materials loan program had the impermissible effect of advancing religion. 121 The Court reasoned that it was impossible to separate sectarian and secular elements in religious education. 122 The Court reasoned that any aid for education at religious schools advances religious education and violates the Establishment Clause. 123 Lastly, the Court found that the provision of auxiliary services at private schools by public schoolteachers resulted in excessive entanglement and violated the Establishment Clause. 124 The Court reasoned that the state would have to monitor the teachers receiving government subsidized salaries to ensure that religious indoctrination did not occur and thus advance the 125 In Wolman v. Walter 126 the Court assessed the constitutionality of an Ohio law 127 that provided various forms of publicly funded aid to students in religious schools. 128 The statute authorized the state to provide nonpublic school children with "books, instructional materials and equipment, standardized testing and scoring, diagnostic services, therapeutic services, and field trip transportation." 129 121 See id at 366. 122 See id at 366. 123 See id 124 Id at 37 0 72. 125 Id 126 433 U.S. 229 (1977). 127 Ohio Rev. Code Ann. § 3317.06 (Anderson 2002). 128 Wolman 433 U.S. at 234. 129 Id at 229, 233.

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129 129 In separate opinions, six justices upheld the provision of textbooks to sectarian school students, finding that the Ohio textbook program 130 had a "striking resemblance to the systems approved in Board of Education v. Allen and in Meek v. Pittenger ." 131 The C ourt also upheld the segment of the Ohio statute that authorized state funded standardized testing and scoring by public school personnel. 132 The Court differentiated the Ohio statute from the New York statute found unconstitutional in Levitt v. Committee f or Public Education & Religious Liberty 133 which the Court held impermissible because religious teachers prepared and administered the tests. 134 In Wolman because the religious schools did not control the content of the tests, and nonpublic school personnel did not participate in the drafting or scoring of tests, the Court reasoned that the program did not violate the Establishment Clause. 135 The Court also upheld the provision of diagnostic services by public school personnel on private school premises. 136 The Court found this program to be similar to the neutral, generally available services upheld in Everson and Allen 137 finding that "the provision of health services to all schoolchildren -public and nonpublic -does not have the primary effect of aiding religio n." 138 In distinguishing the diagnostic services from the auxiliary services struck down in Meek 139 the 130 Ohio Rev. Code Ann. § 3317.06 (A). 131 Wolman 433 U.S. at 237 38 (opinion of Blackmun, J., joined by Burger, C.J., Stewart & Powell, JJ.); see also id at 255 (White & Rehnquist, JJ., concurring in part, dissenting in part). 132 Ohio Rev. Code Ann. § 3317.06 (H). 133 413 U.S. 472 (1973). 134 Wolman 433 U.S. at 239 40; Levitt 413 U.S. at 482. 135 Wolman 433 U.S. at 239 (Blackmun, J., writing for the Court). 136 Ohio Rev. Code Ann. § 3317.06 (B), (D). 137 Wolman 433 U.S. at 242. 138 Id. 139 Id at 242 44.

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130 130 Court in Wolman found that "[t]he nature of the relationship between the diagnostician and the pupil does not provide the same opportunity for the transm ission of sectarian views as attends the relationship between teacher and student or that between counselor and student." 140 Therefore, the Court held that Ohio could permissibly provide diagnostic services to students who attended religious schools. Additio nally, the Court upheld the provision of "certain therapeutic, guidance, and remedial services" for special needs children provided by public school personnel at religiously neutral locations. 141 These neutral locations were on the premises of public school s or in "mobile units located off the nonpublic school premises." 142 The distinguishing feature in the Ohio program, from the program found impermissible in Meek was the services were not provided on the premises of the religious school. 143 The Court held th at "providing therapeutic and remedial services at a neutral site off the premises of the nonpublic schools will not have the impermissible effect of advancing religion. Neither will there be any excessive entanglement." 144 In Wolman the Court relied on the Meek rationale 145 to find lending "instructional materials and equipment" section in the Ohio statute 146 unconstitutional. 147 The state provided the materials to the students and parents rather than to the private school but this did not change the 140 Id at 244. 141 Ohio Rev. Code Ann. § 3317.06 (E) (H). 142 Wolman 433 u.S. at 244 45 (citing Ohio Rev. Code Ann. § 3317.06 (G) (I), (K) (Supp 1976), which is currently codified as § 3317.06 (E) (H)). 143 Wolman 433 U.S. at 247. 144 Id at 248. 145 Id at 250 51. 146 Id at 248 & n.15 (citing Ohio Rev. Code Ann. § 3317.06 (B) (C) (Supp. 1976)). 147 Id. at 247.

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131 131 substance o f the program, and therefore impermissible. 148 The Court reasoned that "[t]he equipment [was] substantially the same; it [would] receive the same use by the students; and it [could] still be stored and distributed on the nonpublic school premises." 149 Accordi ng to the Court, religion would be advanced because it is impossible to separate "the secular education function from the sectarian, the state aid inevitably flows in part in support of the religious role of the schools." 150 Finally, the Court addressed the constitutionality of the state providing transportation for field trips for nonpublic students at private schools. 151 The Court held that the program was unconstitutional because religion could be integrated into the field trips. 152 The Court reasoned that f ield trips were "an integral part of the educational experience, and where the teacher works within and for a sectarian institution, an unacceptable risk of fostering of religion is an inevitable byproduct." 153 Constant monitoring would be required to preven t this integration with the result being an excessive entanglement of church and state. 154 In Wolman the Court upheld only programs providing neutral services, such as textbooks, standardized testing, and diagnostic, guidance, and remedial services. The Co urt was consistent with Lemon Nyquist and Meek which rejected programs providing substantial aid to the religious goal of sectarian schools. 155 In each case, the Court was appraised whether public aid 148 Id at 250 51. 149 Id. at 250. 150 Id 151 Id at 252 (citing Ohio Rev. Code Ann. § 3317.06 (L) (Supp. 1976). 152 Id at 254. 153 Id. 154 Id. 155 See supra Parts I.A. 1 3.

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132 132 that was secular might be subverted to religious use and whether the amount of aid was sufficiently "massive" to call it "direct" rather than "indirect." The secular content of government aid was no longer sufficient to guarantee its constitutionality. The Court found that the educational function could not be separated from the religious mission of the sectarian schools, and therefore aid to the educational function necessarily resulted in the impermissible endorsement of religion. 156 In Committee for Public Education and Religious Liberty ("PEARL") v. Regan 157 the New York Legislature enacted a new statute directing payment to nonpublic schools for the costs incurred for compliance with specific state mandated requirements. These requirements included testing (pupil evaluation, achievement, and scholarship and college qualification tests), reporting, and record keeping. Unlike the earlier version, this statute provided a means by which state funds were to be audited, thus ensuring that only actual costs of providing covered secular services were reimbursed out of state funds. The Court held that the statute did not violate the Establishment Clause. In Grand Rapids v. Ball 158 the local ovided classes for nonpublic students at public expense in classrooms located in and leased from the nonpublic schools. 159 supplemented the core curriculum. 160 were voluntary and 156 See supra Parts I.A.4. 157 444 U.S. 646 (1980). 158 473 U.S. 373 (1985), overruled by Agostini v. Felton 521 U.S. 203 (1997). 159 Id at 375 160 Id at 375 76.

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133 133 offered after normal school hours. 161 Publicly employed teachers taught both types of these classes. Taxpayers sued, claiming that both programs violated the Establishment Clause of the First Amendment made applicable to the states throug h the Fourteenth Amendment. The Federal District Court applied the Lemon test 162 and struck the programs down under the second prong. 163 The Court held that the challenged programs impermissibly promoted religion in three ways. 164 First, state paid teachers mig ht be influenced by the "pervasively sectarian nature" of the religious school environment and might "subtly or overtly indoctrinate the students in particular religious tenets at public expense." 165 Second, the use of the parochial school classrooms "threat ens to convey a message of state support for religion" 166 through "the symbolic union of government and religion in one sectarian enterprise." 167 Third, "the programs in effect subsidize the religious functions of the parochial schools by taking over a substa ntial portion of their responsibility for teaching secular subjects." 168 The significance of Ball was the Court's continued reluctance to permit public employees to act as instructors within nonpublic schools. The impressionability of the young students and the chance of unintentionally adding to their indoctrination were the main reasons. 161 Id at 376 77. 162 Id at 382. 163 Id at 397. 164 Id. 165 Id at 388. 166 Id at 397. 167 Id at 392. 168 Id at 397.

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134 134 In Aguilar v. Felton 169 the Court invalidated a New York program that used federal funds to provide instructional services for low income students in religious schools. 170 The services included were "remedial reading, reading skills, remedial mathematics, English as a second language, and guidance services," and were provided by public school employees at religious school. 171 As in Lemon and Meek the Court reasoned that the prog ram was impermissible because it created an excessive entanglement of church and state. 172 a program within the guidelines of the Lemon test, the program had a secular purpose and gion prong but the program was then in conflict 173 The Court noted in Aguilar and its companion case Grand Rapids v. Ball many similarities between the New York City program and the Grand Rapids program. 174 licly funded instructors teach classes composed exclusively of private school students in private school buildings. In both cases an overwhelming number of the participating private schools are religiously affiliated. In both cases the publicly funded prog rams provide not only professional personnel but also all materials and supplies necessary for the operation of the programs. Finally, 169 473 U.S. 402 (1985), overruled by Agostini v. Felton 521 U.S. 203 (1997). 170 Id at 407. 171 Id at 406. 172 Id at 412 13. 173 Id. at 00. In d Wallace v. Jaffree no entanglement but the supervision itself is held to cause an 174 Id at 409.

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135 135 the instructors in both cases are told that they are public school employees under the sole control of the public school 175 The major difference between the two programs was that the New York City program provided a system of monitoring whereby administrative personnel would visit program classes unannounced. 176 The purpose of this monitoring program was to avoid Estab lishment Clause problems by e nsuring that program teachers were not including religion in their classes. 177 This plan developed by the city of New York to monitor public school teachers teaching at the parochial schools failed the third prong of the Lemon te st. The Court concluded that this supervisory system created an excessive entanglement with religion. 178 Although the Court acknowledged the secular intent of the New York statute, it is significant to note that the Court found potential for religious advan cement and entanglement making it unconstitutional. The Court was hesitant to permit public school teachers into religious classrooms for fear that they may engage in direct or indirect religious instruction. Transition to Government Neutrality As the 197 0s ended, for the most part the strict separationist attitude of the U. S. Supreme Court also ended. During the 1980s the U. conservative and the justices began to change in favor of a neutrality approach to the re solution of Establishment Clause issues. In Mueller v. Allen 179 the Court upheld a Minnesota income tax 175 Id 176 Id at 406 07, 409. 177 Id at 409. 178 Id 179 463 U.S. 388 (1983).

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136 136 deduction program which included "tuition, textbooks and transportation" expenses 180 that was generally available to parents of both public and private scho ol students. 181 The plaintiffs argued that the statute violated the Establishment Clause of the First Amendment by providing financial assistance to religious schools. The overwhelming majority of deductions (96 percent) went to families whose children atte nded religious schools. 182 The 183 result of numerous private choices of ind ividual parents of school 184 This marked 185 180 Id at 390 citing Minn. Stat. § 290.09, subd. 22 (1982) permits a taxpayer to deduct from his or her computation of gross income the following: "Tuition and transportation expense. The amount he has paid to others, not to exceed $500 for each dependent in grades K to 6 and $700 for each dependent in grades 7 to 12, for tuition, textbooks and transportation of each dependent in attending an elementary or secondary school situated in Minnesota, North Dakota, South Dakota, Iowa, or Wisconsin, wherein a resident of this state may legally fulfill the state's compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964 and chapter 363. As used in this subdivision, `textbooks' shall mean and include books and other instructional materials and equipment used in elementary and secondar y schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpo se of which is to inculcate such tenets, doctrines or worship, nor shall it include such books or materials for, or transportation to, extra curricular activities including sporting events, musical or dramatic events, speech activities, driver's education, or programs of a similar nature." 181 Id at 398 99. 182 Mueller 463 U.S. at 401. 183 Id at 399. 184 Id 185 Id

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137 137 In writing for the majority, Chief Justice Rehnquist applied the three pr onged Lemon test 186 and determined that the Minnesota statute had a secular purpose, did not have the impermissible effect of advancing religion, and did not create excessive entanglement. 187 The tax deduction served the secular purpose of ensuring that the st ate's citizenry is well educated and assured the financial health of private schools, both sectarian and nonsectarian. 188 The deduction did not have the primary effect of advancing religion in nonpublic schools because it was only one of many deductions unde r the Minnesota tax laws and was available for educational expenses incurred by all parents, no matter whether their children attend public schools or private schools. 189 The statute did not "excessively entangle" the State in religion, although state offici als must determine whether particular textbooks qualify for the tax deduction and must disallow deductions for textbooks used in teaching religious doctrines. The Court held this an insufficient basis for finding such entanglement. 190 The Court also held th at a tax deduction was not comparable to the tuition reimbursement program struck down in Nyquist 191 but rather emphasized that the program was analogous to the neutral, generally applicable programs the Court had upheld 192 in Everson 193 and Allen 194 Specifically in these programs "the class of beneficiaries included all schoolchildren, those in 186 Id. at 394 404. 187 Id at 394 96. 188 Id at 395. 189 Id. 190 Id 191 413 U.S. 756, 93 S.Ct. 2955 (1973). 192 Mueller at 394, 398. 193 330 U.S. 1 (1947). 194 3 92 U.S. 236 (1968).

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138 138 public as well as those in private schools," and "public assistance [was] available generally without regard to the sectarian nonsectarian or public nonpublic nature of t he institution benefited." 195 The program created no additional incentives for parents to choose religious school over public school. 196 determines whether public funds ultimately reach religious schools. 197 The Court employed the Lemon test to uphold the statute by depending on two neutrality themes. First, footnote thirty eight of Nyquist 198 allowed for the possibility that financial aid could be given to a religious school as part of an overall ge neral plan, making aid available to all schools without regard to religious affiliation or whether the school is public or private. Secondly, aid to religious schools is permissible under such a general plan if it is made available based upon the independe nt choices of parents and not the state. In Witters v. Washington Department of Services for the Blind 199 the Court unanimously upheld a vocational rehabilitation program which provided benefits directly to qualifying individuals regardless of the nature of the institution benefited. The use of public funds by a student who is blind at a Bible college does not violate the Establishment Clause. 200 Justice Thurgood Marshall, writing for the Court, analyzed the case under the Lemon test. 201 The Court reaffirmed th e importance of individual choice from Mueller 202 holding that 195 Mueller at 398. 196 Id at 399. 197 Id 198 413 U.S. 756, 93 S.Ct. 2955 (1973). 199 474 U.S. 481 (1986). 200 Id at 489 90. 201 Id at 485. 202 463 U.S. 388, 399 (1983).

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139 139 "any aid provided under Washington's program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." 203 In add ition, the program created no financial incentives to choose sectarian education and provided no greater benefits to those who did elect to pursue a religious education. 204 The Washington program also was similar to footnote thirty eight of the Nyquist decis ion because the benefit was available to students generally because regardless of the sectarian/nonsectarian or public/nonpublic nature of the schools, 205 all students benefited equally under the program. 206 No indication was found that program funds were bein g used "'to provide desired financial support for nonpublic, sectarian institutions.'" 207 According to the Court, when individuals, as opposed to government, determine whether and how much money flows to religious institutions, it is no more constitutionally troubling than when a government employee donates his or her paycheck (public funds) to a church. 208 The Court concluded that a neutral, generally applicable program of genuine private choice did not constitute an impermissible advancement of religion. 209 In Zobrest v. Catalina Foothills School District 210 independent choice was a determining factor in the Court ruling. Public funding was upheld for a sign language interpreter for a student 203 Witters at 487. Said the Court in Mueller public funds become available only as a result of numerous private choices of individual parents of school Mueller v. Allen, 463 U.S. 388, 399 (1983). 204 Id at 487 88. 205 Witters, 474 U.S. at 487 88. 206 I d 207 Id at 488. Justices were quoting Committee for Public Education and Religious Liberty v. Nquist 413 U.S. 756, 782 83 (1973). Cf. Meek v. Pittenger 421 U.S. 349, 363 64. (1975). 208 Id at 486 87. 209 Id. at 489 90. 210 509 U.S. 1 (1993).

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140 140 attending a Catholic high school pursuant to the federal Individuals wi th Disabilities Education Act. 211 In a 5 4 decision, the Court held that the provision of a sign language interpreter did not constitute state sponsorship of religion. Parents select the school their children attend and therefore "a government paid interpre ter will be present in a sectarian school only as a result of the private decision of individual parents." 212 Additionally, the program did not create an incentive to choose religious over public school, and the primary beneficiary of the aid was the student not the religious institution. 213 Relying on Mueller and Witters Justice Rehnquist, writing for the majority, found that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readi ly subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit." 214 The Court focused on in terpreter's presence there cannot be attributed to state decision 215 Justice Rehnquist concluded that providing an interpreter differed from providing a teacher or counselor because an interpreter, unlike a teacher or counselor, would not add or s ubtract from the overall environment of the school. 216 The program was found to be constitutionally 211 Id at 3; 20 U.S.C. §§ 1400 91 (2000). The Arizona co unterpart of the IDEA is codified at Ariz. Rev. Stat. Ann. § 15 761 to 774 (West 2002). 212 Id at 10 11. 213 Id 214 Id. at 8. 215 Id at 10. 216 Id at 13.

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141 141 permissible when applied to students at religious schools because it represented "a neutral government program dispensing aid not to schools but to individual handicapped children." 217 Establishment Clause prohibited the provision of a public employee to transmit religious views. The Justices argued that the Court should have remand ed the case to determine whether the federal act actually required the school district to provide an interpreter in a private school. The significance of Zobrest was that it emphasized two crucial facts. First, "[b]y according parents freedom to select a s chool of their choice, the statute ensures that a government paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." 218 Second, "[t]he service at issue in this case is part of a general governme nt program that distributes benefits neutrally to any [qualified] child without regard to the sectarian nonsectarian, or public nonpublic nature of the institution benefited." 219 For the first time the Court permitted public employees to work in religi ous schools. Although the person would be translating religiously based information the function of the interpreter was not considered religious. The Court determined that the provision of the interpreter did not relieve the religious school of a cost that it otherwise would have borne. After Zobrest the Court began to shift away from its position of "no direct aid" to religious schools toward a broader view permitting state aid to religious schools in certain instances. 217 See id at 13 14. 218 Id at 10. 219 Id

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142 142 Significant Doctrinal Shift In Agos tini v. Felton 220 the U. S. Supreme Court approved a program that, under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), 221 provided public school employees to teach remedial classes at private schools, including religious schools. In so holding, the Court overruled Aguilar v. Felton 222 and partially overruled School District of Grand Rapids v. Ball 223 Title I program does not run afoul of any of the three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive 224 The decision mar ked a dramatic shift in school aid jurisprudence when the Court departed from ruling that all government aid to religious schools was unconstitutional. In Aguilar the Court held that publicly funded remedial education services provided at religious schools violated the Establishment Clause of the First Amendment because it created an excessive entanglement between Church and State. 225 As a result of this decision remedial education services were provided off site. Students were bussed from their religious sch ools or they received their remedial education services in vans parked outside of their religious schools. 220 521 U.S. 203 (1997). 221 20 U.S.C. § § 6321(a) (1994). Part A of Tit le I of the Elementary and Secondary Education Act requires federal funds to be made available on an equitable basis to eligible students attending private as well as public schools. 222 473 U.S. 402 (1985). 223 473 U.S. 373 (1985). 224 Agostini at 234. 225 See Ag uilar 473 U.S. at 412 13.

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143 143 In 1995, parents and the New York City Board of Education filed suit in federal court seeking relief from the Aguilar injunction under Federal Rule of Civil Procedure 60(b)(5). 226 This rarely used rule permits parties to seek relief from an earlier court order that is no longer supported by law. Both the district court 227 and the Court of Appeals 228 denied the requested relief because the U. S. Supreme Cour t had not yet explicitly overruled the Establishment Clause jurisprudence of Aguilar On appeal to the U. Establishment Clause cases had so undermined Aguilar that it was no longer good law ." 229 The Court held that Federal Rule of Civil Procedure 60(b)(5) allowed the challenge to the decision in Aguilar 230 Justice O'Connor, writing for a 5 to 4 majority, noted that Witters and Zobrest undermined several assumptions upon which Aguilar and Grand Rapids had been based. 231 The Court in Zobrest eliminated the presumption that a public school employee on the premises of a religious school create a symbolic link between Church and State, and that public employees inculcate religion in students if permitt ed to teach in religious schools. 232 In Witters the Court overruled its earlier position that "all government aid that directly assists the educational function 226 See id at 214. 227 See Agostini 521 U.S. at 214. 228 See Felton v. Secretary, U.S. Department of Education, Agostini v. Felton 521 U.S. 203 (1997). 229 See Agostini 521 U.S. at 217 18. 230 that the judgment shoul 231 See id at 222. 232 See id at 224.

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144 144 of religious schools is invalid," 233 and noted instead that Nyquist 's footnote thirty eight allowed for general aid without regard to the nature of the institution benefited. 234 Justice O'Connor concluded that "a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Estab lishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here." 235 that Title I money reached religious instituti ons as a result of private, individual choices, not a government decision. 236 Any aid to religious schools was the "result of the private decision of individual parents [and] could not be attributed to state decisionmaking." 237 The Justices who dissented argu ed that the case should not be overturned, since this was essentially the same case that was ruled on twelve years earlier and that the Court does not as a rule rehear cases. Justice Ginsburg, wrote that "lower courts lack the authority to determine wheth er adherence to a judgment of this Court is inequitable." 238 The Agostini decision characterizes the U. S. Supreme Court shift in approach toward whether an absolute wall must exist between public and religious schools. In Agostini the Court substantially m odified the Lemon test by collapsing the entanglement prong into the primary effect prong. 239 Additionally, this decision was significant in that the state could conduct public 233 See id at 225. 234 See id 235 Id at 234 35. 236 117 S. Ct. at 2011 2012, 2014. 237 Id at 2012 (quoting Zobrest 509 U.S. at 10). 238 Agostini, 117 S. Ct. at (Ginsgurg, J., dissenting). 239 See Agostini at 232

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145 145 programs in religious schools without becoming excessively entangled with religio n. Previous to Agostini the Court had upheld aid programs only if they provided neutral, generally available benefits, such as transportation, textbooks, and tax deductions. 240 Prior to Agostini the Court consistently struck down school aid programs that pro vided funds to private, religious schools because such funds created incentives to choose religious schools over public schools. As in Lemon 241 Nyquist 242 Meek 243 and Wolman 244 the Court found public aid that benefited religious schools in the form of teachers salaries, tuition reimbursements, and educational equipment that was potentially divertible to religious uses unconstitutional. In Agostini the Court rejected three presumptions that had been previously relied upon in rulings: (1) permitting public emplo yees to work within religious schools inevitably results in the state sponsored indoctrination of religion; (2) permitting public employees to work within religious schools constitutes a symbolic union between church and state; and (3) any government aid t hat enhances the educational function of religious schools impermissibly violates the separation between church and state. In Agostini by contrast, it was found that government aid impermissibly advances religion only if aid (1) results in governmental in doctrination; (2) defines in recipients by reference to religion; or (3) creates an excessive entanglement. In Mitchell v. Helms 245 the constitutionality of a program providing aid to both public and religious schools in the form of educational equipment, i ncluding books and computers was 240 See Mueller v. Allen 463 U.S. 388 (1983); Board of Edu cation v. Allen 392 U.S. 236 (1986); and Everson v. Board of Education 330 U. S. 1 (1947). 241 403 U.S. 602 (1971). 242 413 U.S 756 (1973). 243 421 U.S. 349, 366 (1975). 244 433 U.S. 229, 250 (1977). 245 120 S. Ct. 2530 (2000).

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146 146 upheld by the Court. This decision expanded the definition of permissible government aid for religious schools under the Establishment Clause. Most importantly, Mitchell paved the way for the continuing shift that came in Z elman. The Court found similarities between Chapter 2 of the Education Consolidation and Improvement Act of 1981 246 and Title I of the Elementary and Secondary Education Act, 247 which the Court upheld in Agostini 248 The federal government distributed money to state and local educational agencies, which, in turn, bought educational material and equipment on behalf of certain public and private schools. The local agencies then lent what they had purchased to the schools. 249 Through the program, private schools were able to acquire such items as library books, computers, television sets, and laboratory equipment to implement "secular, neutral, and non ideological" programs. 250 The enrollment of each participating school determined the amount of Chapter 2 funding. 251 In the challenged school district, approximately 30 percent of the funds went to private schools. Of the forty six private schools participating in the program, forty one were religiously affiliated. The plurality opinion, 252 written by Justice Thomas, relied on the modified Lemon test used in Agostini that restated the primary criteria used in Establishment Clause challenges to "evaluate 246 20 U.S.C. §§ 7301 73 (2000). 247 20 U.S.C. §§ 6301 38 (1994). 248 Mitchell 530 U. S. at 801 02; Agostini 521 U. S. at 230. 249 Id. 250 Id 251 Id 252 Mitchell 530 U.S. at 801 (Thomas, J., announcing judgment of the Court, joined by Rehnquist, C.J. & Scalia & Kennedy, J.J.); id J., joined by Breyer, J., concurring).

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147 147 whether government aid has the effect of advancing religion." 253 Since Agostini the Court has considered whether a given progr am "result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement" between church and state. 254 The Court, however, evaluated the first two prongs of the test because the Fifth Circuit's holding on the question of excessive entanglement was not challenged. 255 The Court found a clear secular purpose to the program and held that Chapter 2 was "not a 'law respecting an only establishment of religion"' because the program "neither result [ed] i n religious indoctrination by the government nor define[d] its recipients by reference to religion." 256 The Court concurrently overturned the Meek 257 and Wolman 258 decisions concluding that there were "anomalies in our case law." 259 The Mitchell Court relied on t he precedents established in Agostini Zobrest Witters and Mueller 260 In these cases, the neutral availability of program benefits allowed to individual beneficiaries significantly contributed to the permissibility of the programs under the Establishment Clause. 261 The Court found that Chapter 2 "makes a broad array of schools eligible for aid without regard to their religious affiliations or lack thereof," 262 and aid was 253 Mitchell 521 U.S. at 234. 254 Id (quoting Agostini 521 U.S. at 234). 255 Id 256 Id 257 421 U.S. 349 (1975). 258 433 U.S. 229 (1977). 259 Mitchell 530 U.S. 808. 260 Id at 810 11. 261 Id at 810 14. 262 Id at 2552.

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148 148 "allocated on the basis of neutral, secular criteria that neither favor[ed] nor disfavor[ ed] religion, and [was] made available to both religious and secular beneficiaries on a nondiscriminatory basis." 263 Since aid was allotted to each school on the basis of enrollment, the independent and private decisions of parents determined how much money was provided to private schools. 264 Parents had no incentive to choose religious education over public school because "[t]he aid follow[ed] the child." 265 constitutionality was 266 Justice O'Connor maintained that "[t]he plurality's treatment of neutrality comes close to assigning that factor singular importance in the future adjudication of Establishment Clause challenges to government school aid programs." 267 Justice O'Connor instead relied on criteria outlined in Agostini 268 The Chapter 2 program, like the program upheld in Agostini benefited all children attending both private and public schools, and the aid provided was sup plemental, thereby justifying Justice O'Connor's reliance on the revised Lemon criteria. 269 Another important feature prevent the diversion of aid to religious purpo ses. 270 263 Id at 829 (quoting Agostini v. Felton 521 U.S 203, 231 (1997)). 264 Id at 830. 265 Id 266 Id 267 Id. 268 Id 269 Id at 844 49. 270 Id at 860 66.

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149 149 statute 271 used only for secular purposes and did not have the impermissible effect of advancing religion. 272 The constitutionally sign ificant distinction was one of "private choice" government aid programs (those that distribute funds to parents, who then disburse the money to the school of their choice) versus per capita aid programs. 273 Summary U. S. Supreme Court decisions in Establish ment Clause cases have become more varied and complex. Frequently, the Court issued confusing, even contradictory, decisions concerning public aid to religious schools. 274 The early Court decisions focused on either the content or the nature of the aid provi ded an approach that concentrated on whether secular activities and education, as opposed to religious indoctrination, was being funded. In the 1970s the Court typically assumed a separationist approach that focused on whether public aid was secular, wheth er any potential of either "advancing religion" or of creating the appearance of a government "endorsement" of religion existed, and whether an excessive government entanglement with religion was fostered. 275 During this period the Court primarily employed t he three part Lemon test which proved a formidable obstacle to nearly all proposals to public aid for children in religious schools. 271 See 20 U.S.C. §§ 7301 7373 (2000). 272 Id ring). 273 Id 274 Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools An Update 75 Cal. L. Rev. 5, 6 (1987); Michael W. McConnell & Richard A. Posner, An Economic Approach To Issues of Religious Freedom 56 U. Chi. L. Rev. 1, 25 26 (1989). 275 Lemon v. Kurtzman 403 U.S. 602, 612 613 (1971).

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150 150 In response, state legislatures designed indirect assistance for religious schools schemes via religion neutral tax exempt ions or tying the funds to other governmental entitlements. 276 Increasingly, the Court assumed a more nonpreferentialist approach which focused on the role of independent private choice as a means of guaranteeing that government does not "establish" a religi on. In these cases the Court shifted from examining the content of the aid program to evaluating the means by which the aid reaches religious schools. Programs that provided benefits to individuals under secular neutral criteria, even if those individuals then use those benefits to support or attend religious schools were found constitutional. The key to constitutional viability revolved around the concept of independent private choice. Some legal scholars wondered whether the Court was turning away from th e Lemon test as the primary guide and whether it should be abandoned in Establishment Clause cases. 277 In Zelman v. Simmons Harris 278 the nature of school choice is no longer designed to benefit particular schools, but rather is a remedial effort to expand th e range of educational true private choice, in which government aid reaches religious schools only as a result of the 279 Cases that involved government programs that provided aid directly to religious schools included Mitchell v. Helms 280 Agostini v. 276 See Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993). 277 See Michael Stokes Paulsen. Lee v. Weisman 43 Case W. Rev. 795 (Spring, 1993). Paulsen contended that the Court in Weisman replaced the Lemon 278 536 U.S. 639 (2002). 279 Zelman, supra at 2470. 280 530 U.S. 793, 810 814 (2000) (plurality opinion); id ., a t 841

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151 151 Felton 281 Rosenberge r v. Rector and Visitors of Univ. of V. 282 Cases that involved programs of true private choice included Mueller v. Allen, 283 Witters v. Washington Dept. of Servs. for Blind, 284 and Zobrest v. Catalina Foothills School District. 285 Chief Justice Rehnquist remarked 286 287 respect to true private choice programs has remained consistent and 288 He added that, programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such 289 281 521 U.S. 203, 225 227 (1997). 282 515 U.S. 819, 842 (1995). 283 463 U.S. 388 (1983). 284 474 U.S. 481 (1986). 285 509 U. S. 1 (1993). 286 Agostini, supra at 236. 287 Zelman, supra at 2470. 288 Id 289 Id.

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152 152 CHAPTER 4 ZELMAN V SIMMONS HARRIS DECISION Introduction Public school teachers unions, the general public, 1 legal scholars, 2 and policymakers 3 were sharply divided over the Establishment Clause issue as it pertained to school vouchers and whether school vouchers constitute good public policy. The arguments took many forms, but in general, opponents of vouchers believe such financial assistance to parents of students in religious schools weakens the wall of separation between church and state and u ndermines public schools. School voucher proponents believe that vouchers provide an opportunity, particularly for low income families, to escape failing schools and broaden the freedom of educational choice in a manner that does not violate the Establishm ent Clause. The deeply divided Court, 4 by a 5 4 majority, in Zelman v. Simmons Harris 5 held that the Cleveland Scholarship and Tutoring Program (CSTP) did not violate the Establishment Clause of the U. S. Constitution. The Court rejected the Sixth Circui 1 See The 36 th Annual PhiDelta school vouchers ranged from 41% to 44%. Available at http://www.pdkintl.org/kappan/k0409pol.htm 2 See i.e., onli ne legal issues debate about school vouchers between Michael McConnell and Kathleen M. Sullivan that took place Dec. 8, 1998 through Jan. 13, 1999. Available at http://www.slate.com/id/10146/entry/11351/ 3 See Sen. Edward M. Kennedy, D Mass in regards to W [Electronic version]. Education Week ., p.2. Available at http://www.edweek.org/ew/ew_printstory.cfm?slug=20Vouch.h23 ; After the successful passing of the DC Sc hool http://dc.gov/mayor/news/release.asp?id=561&mon=200401 4 See Sara J. Crisafulli. (2003). Zelman v. Simmons Harris programs really the la st word? 71 Fordam Law Review 2227 2281. 5 536 U.S. 639 (2002).

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153 153 impermissibly aided religious schools. 6 7 8 class of individuals defi 9 and in the program individuals were 10 Central to the Court's decision in Zelman was the fact that eligible families were offered community s chools, 11 magnet schools, 12 and participating private schools as alternatives to the inner city public schools. 13 When the Court considered all of the parents' options, religious schools represented only 16.5 percent of Ohio's total educational expenditures. 14 First, this chapter focuses on the details of the Ohio voucher program that provided the basis for the U. S. Supreme Court's decision. Second, it examines the lower courts' treatment of the voucher program highlighting by contrast the Court's ultimate de cision in Zelman Finally, this chapter discusses the Court's decision and analyzed the differences between Zelman and prior decisions on similar facts. 6 Simmons Harris v. Zelman 234 F.3d 945 (6th Cir. 2000). 7 Zelman 536 U.S. at 649. 8 Id at 653. 9 Id 10 Id at 651. 11 Zelman 12 Id subject area, teach 13 Id 14 Id

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154 1 54 The Ohio Pilot Project Scholarship Program In 1802, Ohio was the first state Congress created from the Northwest Territory. Following the terms of the Northwest Ordinance, Ohio made land grants available to every township for the protect every religious denom 15 During the constitutional convention of 1850 1851, the delegates modified the provision to a constitu tion to this day. 16 In 1992, then Governor and former Cleveland Mayor George Voinovich established the system. 17 In March 1995, the educational and fiscal crisis in th e Cleveland Municipal School District was so severe that the U. S. District Court for the Northern District of Ohio ordered the state to take over the administration of the district. 18 The decision resulted in the Cleveland Municipal School District being p laced under the direct supervision of the state department of education. 19 The Ohio Department of Education gave the Cleveland Municipal School District 20 A pilot project was established for any school district in the 15 Ohio Const. art. I, § 7. 16 Ohio Const. art. VI, § 2. The General Assembly shall make such provisions, by taxation, or otherwise, as with the income arising from the scho ol trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state. http://www.legis lature.state.oh.us/constitution.cfm?Part=6&Section=02 17 Rethinking Schools Online. Winter Volume 16, No.2 2001/2002, at http://www.rethinkingschools.org/special_reports/voucher_report/v_high162.shtml. 18 Zel man v. Simmons Harris 536 U.S. at 644 48. 19 Simmons Harris v. Zelman 72 F. Supp. 2d 834,836. 20 seven performance standards. CCSD did not meet any of the standa rds during the 1998 1999 school year [score: 0/27], See http://www.ode.state.oh.us/reportcard/Ratingby

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155 155 State that 21 The Cleveland Municipal School District was the only district meeting those criteria. On June 30, 1995, the Ohio General Assembly enacted the Pilot Project Scholarship Program, 22 making Ohio the first state to pass a publicly funded private school choice program that included religious schools. 23 The statewide program provided financial assistance to families in any Oh 24 The Cleveland City School District was the only district that met the program requirement. Th e Cleveland Scholarship and Tutoring Program (CSTP) was designed to provide low income students in the critically low performing Cleveland City School District with a wider range of educational options. 25 The program was largely supported by funds from Ohi Impact Aid (DPIA) budget previously earmarked for the Cleveland Municipal Public Schools. The district initially kept up to 55 percent of state aid for each departing voucher student, as well as its entire local and federal financia l allotment. 26 CD.pdf In 1999 200 CCS See http://www.ode.state.oh.us/reportcard/ratings/fy00_std_seq.htm. 21 Ohio Rev. Code. Ann. § 3313.975(A). 22 Ohio Rev. Code Ann. § 3313.974 .979. 23 Milwaukee Parental Choice Program was the country religious schools. 24 Ohio Rev. Code Ann. § 3313.975(A). 25 Zelman at 643 644. 26 Voucher Prog

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156 156 Fully operational the next year, the Pilot Project Scholarship Program included two separate educational assistance programs. 27 First, the program provided grants to students for tutorial assistance. 28 The second, much more controversial compo nent provided selected kindergarten through eighth grade students with tuition assistance to attend any participating "alternative schools." 29 The legislative term "alternative school" was defined as a public school located in an adjacent school district or a private school within the Cleveland City School District 30 The Cleveland Scholarship and Tutoring Program provided scholarships to students, preferably those from low income families, for tuition at private schools, including religious schools. 31 Studen ts of families with incomes twice below the poverty level were eligible for vouchers worth 90 percent of the tuition charges at an alternative school of their choice. Students of families with incomes equal to or exceeding twice the poverty level were elig ible for vouchers worth 75 percent of such charges. 32 Students from families above the low income guidelines were allowed to any remaining available vouchers. The available amount per voucher was not to exceed $2,500. 33 Vouchers were distributed through a r andom selection lottery system. The lottery system allowed students previously enrolled in private schools to participate, with a limitation of 25 27 Ohio Rev. Code Ann. § 3313.975(A) (West Supp. 1999). 28 Id. at § 3313.974(H). Tutorial assistance was defined by the Legislature as "instructional services provided to a student outsid e of regular school hours approved by the commission on school choice." 29 Id. at § 3313.975(A). 30 Id. at § 3313.974(G). 31 Your School and the Law. March 14, 2001 Vol. 4, No. 11. LRP Publications 2001 32 Id. at § 3313.978. 33 Id.

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157 157 percent of the vouchers being awarded to those students. Vouchers were available to students attending kinder garten through third grade. 34 Any student enrolled in the program, would continue in the program, receiving an annual voucher through the eighth grade. 35 There were four types of educational settings outlined in the Cleveland voucher program. First, private schools within the boundary of the Cleveland School District were eligible to participate. Second, state operated magnet and community schools (charter schools) were available options to families. 36 Cleveland Public School District, with state funded tutor ial assistance to students was the third. Fourth, public schools that were adjacent to the Cleveland Public School District could also participate. 37 If adjacent public schools chose to participate they would receive a tuition grant up to $2,250 for each vo ucher program student in addition to the ordinary per pupil state funding for that student. 38 The voucher check would be sent directly to the school in which the student was enrolled and made payable to that school district. 39 For students attending partici pating private schools, voucher checks were made payable to the student's parents. 40 As a precaution, though not required by the legislation, school voucher checks were sent directly to the private school, where parents would then go and endorse the 34 See id. 35 Ohio Rev. Code An n. § § 3313.977(A)(2). 36 Ohio Rev. Code Ann. §§ 3314.01(B). 37 Ohio Rev. Code Ann. §§ 3313.976(C). 38 Ohio Rev. Code Ann. §§ 3317.03(I)(1), 3317.022(A)(1). 39 Ohio Rev. Code Ann. § § 3313.979. 40 See id.

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158 158 checks over to the school. 41 The state placed no restrictions on the use of the scholarship money by the participating private schools. 42 Schools that participated in the program were to consider only two student eligibility factors: the student must live in the Cl must qualify as low income. The schools were required to be non discriminating in both admissions policies and educational practices. This meant no participating school may 43 and participating schools 44 In the 1999 2000 school year, 46 of t he 56 participating private schools (82 percent) were religiously affiliated, and 96 percent of the 3,700 students enrolled were students in religiously affiliated schools. 45 During the 2001 02 school year there were 4,266 voucher students with 96 percent o f the students attending religious schools. 46 No suburban public schools participated in the program. 47 Legal Challenges to the Voucher Program The Cleveland voucher program permitted religious schools to participate from its inception and as a result the pr 41 See Simmons Harris v. Goff, 711 N.E.2d 203, 206 (Ohi o 1999). 42 See Simmons Harris v. Zelman 72 F. Supp. 2d 836 37 (ND Ohio 1999). 43 Ohio Rev. Code Ann. § 3313.976(A)(4). 44 R.C. 3313.976(A)(6). 45 Zelman at 647. 46 001, at http://nytimes.com/2001/09/26/national/26SCOT.html?todaysheadlines. 47 Simmons Harris, et al. v. Zelman, et al., 234 F.3d at 959.

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159 159 two groups of Cleveland taxpayers filed suit against the Cleveland Scholarship and Tutoring Program. 48 The trial judge consolidated both taxpayer lawsuits. 49 The suits alleged the voucher progra m violated the Establishment Clause of the First Amendment primarily because the overwhelming majority of the schools funded by the public program were religious. In support of the Scholarship Program, two organizations also filed suit in the Franklin Coun ty Court of Common Pleas. 50 Each group of defendants moved for summary judgment from the trial court. On July 31, 1996, the Franklin County Court of Common Pleas held the program constitutional and allowed it to be implemented. 51 The trial judge interpreted two articles (Article I, Section 7 52 and Article VI, section 2 53 ) of the Ohio state constitution to be no more restrictive than the First Amendment Establishment Clause of the U. S. Constitution. Judge Lisa L. Sadler noted that since the scholarships were aw arded to parents without regard to the public or nonpublic nature of the chosen schools, any benefit to religious private schools is indirect. She found immaterial the fact that no public school district opted to participate in the voucher program. This wa s not attributable to action either by the General Assembly or by the State Superintendent, whose office implemented the program. The program was found to conform to 48 On January 10, 1996, the Gatton plaintiffs (Ohio Federation of Teachers and private individuals) filed suit against t he State of Ohio and John M. Goff, Superintendent of Public Instruction. On January 31, 1996, the second suit was filed in the Franklin County Court of Common Pleas by the Simmons Harris plaintiffs. 49 Simmons Harris v. Goff 684 N.E.2d 705 (Ohio App. 1997) 50 Id The Hope defendants, the first group, were parents who planned to enroll their children in the Scholarship Program and private organizations who planned to form private schools that would participate in the Scholarship Program. The second group, Ha nnah Perkins defendants, included a parent whose child had been selected to enroll in the Scholarship Program and private schools that were registered to enroll Scholarship Program students. 51 Gatton v. Goff Nos. 96 CVH 01 198, 96 CVH 01 721, 1996 WL 46 6 499 (Ohio Com.Pl., Franklin Cnty. July 31, 1996). 52 53

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160 160 the U. S. Supreme Court ruling in Mueller v. Allen 54 and subsequent cases. The judge furthe r ruled that the voucher program met the uniformity requirement (Article II, Section 26) 55 and the thorough and efficient requirement (Article VI, Section 2). 56 Plaintiffs argued that the Cleveland program was unconstitutional based on the U. S. Supreme Cour Community for Public Education & Religious Liberty v. Nyquist 57 In Nyquist the Court held that the state may not provide unrestricted direct financial grants for maintenance and repairs to religious schools, unrestricted partial tuiti on grants to parents of low income students attending religious schools, or income tax benefits directed exclusively to parents attending private schools. The position of plaintiffs was that the Cleveland program was indistinguishable from the New York tu ition reimbursement program that was held unconstitutional in Nyquist The defendants countered with an argument based on footnote 38 in Nyquist, in which the U. S. Supreme Court noted that that case did not involve a situation in ailable generally without regard to the sectarian nonsectarian, or public 58 Subsequent U. S. Supreme Court decisions that upheld a variety of other programs that benefited religious schools were also cited. 59 54 463 U.S. 388, 103 S. Ct. 3062 (1983). 55 56 57 413 U.S. 756, 93 S.Ct. 2955, 37 L. Ed. 2d 948 (1973). 58 Nyquist 413 U.S. at 782 n. 38, 93 S. Ct. at 2970 n. 38. 59 Supreme Court decisions subsequent to Nyqui st that have upheld a variety of programs that provided public funds to religious schools include Agostini v. Felton 521 U.S. 203, 117 S. Ct. 1997, 138 L.Ed. 2d 391 (1997) (public school teachers providing remedial education to disadvantaged students in p arochial schools); Zobrest v. Catalina Foothills Sch. Dist. 509 U.S. 1, 113 S. Ct. 2462, 125 L.Ed. 2d 1(1993) (sign language interpreter provided for deaf student in a religious high school); 474 U.S. 4 81, 106 S. Ct. 748, 88 L.Ed. 2d 846 (1986) (state financial assistance for a student who is blind attending a private Christian

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161 161 O n January 10, 1996, suit was filed in Ohio state court against the State of Ohio and the State Superintendent of Public Instruction, seeking to have the Cleveland Scholarship and Tutoring Program invalidated as violative of both the Ohio Constitution and t he Establishment Clause of the U. S. Constitution's First Amendment. 60 On January 31, 1996, three more individuals filed an additional suit against the superintendent, also asserting the program's unconstitutionality. 61 The two cases were subsequently consol idated, and the trial court granted the state's motion for summary judgment. 62 The trial court found the public aid that flowed to the private schools involved in the Cleveland Scholarship and Tutoring Program was indirect, and therefore did not violate th e Establishment Clause 63 On appeal, the Ohio Court of Appeals reversed the trial court's grant of summary judgment, finding that the program violated the Establishment Clause by impermissibly advancing religion. 64 This decision was appealed to the Supreme Co urt of Ohio and, once again, was reversed. 65 college); Mueller v. Allen 463 U.S. 388, 103 S. Ct. 3062, 77 L.Ed. 2d 721 (1983) (state income tax deduction for educational ex penses which included religious schools). 60 See id The plaintiffs included Sue Gatton, Millie Waterman, Walter Hertz, Reverend James Watkins, Robin McKinney, Loretta Heard, Reverend Don Norenburg, Deborah Schneider, and the Ohio Federation of Teachers. 61 See id The plaintiffs in this second action included Doris Simmons Harris, Sheryl Smith, and Reverend Steven Behr. 62 See Gatton v. Goff 1996 WL 466499, *20 (Ohio Com. Pl. 1996), rev'd sub nom Simmons Harris v. Goff, 1997 WL 217583 (Ohio Ct. App. 1997), rev'd, 711 N.E.2d 203 (Ohio 1999). 63 Id at *15. The trial court said: Whether viewed on the face of the statute or as it is applied, the program does not appear to pose any of the dangers the Supreme Court was concerned with in earlier cases striking down programs which resulted in direct aid to sectarian schools . Plaintiffs have not established beyond a reasonable doubt that the scholarship program violates the Establishment Clause of the First Amendment to the United States Constitution. 64 See Sim mons Harris v. Goff 1997 WL 217583, *10 (Ohio Ct. App. 1997), rev'd, 711 N.E.2d 203 (Ohio 1999). The court concluded that "because the scholarship program provides direct and substantial, nonneutral government aid to sectarian schools it has the pri mary effect of advancing religion in violation of the Establishment Clause." Id. 65 See Goff 711 N.E.2d at 216.

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162 162 In May 1999, the Ohio Supreme Court found the Cleveland Voucher Program unconstitutional, but rejected the claim that the program violated the Establishment Clause in either the Ohio or federal constitution. 66 Ac cording to the court, the legislature violated a provision in the state constitution that requires each bill to address only one subject. The legislature had approved the original voucher legislation as part of a 1,000 page general appropriations bill in 1 995. 67 The court stayed its holding until June 30, 1999 in order to avoid disrupting the school year in progress. 68 the program continued. 69 The legislature expanded the Pilot Scholarship Program to include grade 6 in September 1999 and grade 7 in September 2000. 70 After losing in the state courts, voucher opponents repeate d their claims that the Cleveland program violated the Establishment Clause of the U. S. Constitution by filing separate suits in the U. S. District Court for the Northern District of Ohio. 71 The federal court consolidated the two cases. 72 On August 24, 1999 United States Judge Solomon Oliver Jr. of the Sixth Circuit of 66 See id at 207 11 67 See id at 215 16. Ohio's constitution requires that every bill passed by the legislature have only one subject. See Ohio Const. art. 2, § 15(D). The court found that the bill creating the Voucher Program contained more than one subject. See Goff 711 N.E.2d at 214 15. This deficiency was remedied, however, during the summer of 1999 when the Ohio legislature repealed and reen acted the Voucher Program as part of the Education Budget Bill, Ohio Rev. Code Ann. § § 3313.974 79 (Anderson 1999); see Simmons Harris v. Zelman 72 F. Supp 2d. 834, 840 (N.D. Ohio 1999). 68 See Goff 711 N.E.2d at 216. 69 Zelman, 536 U.S. at 648. 70 OHIO RE V. CODE § 3313.974 3313.979 (Anderson 1999). 71 Simmons Harris v. Zelman 72 F. Supp 2d. at 835 39. 72 Id at 836.

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163 163 the Northern District of Ohio issued a preliminary injunction temporarily halting the voucher program, determining that the program would most likely be found to violate the Establishment Cla use. 73 "applicable only to those students who were enrolled in the voucher program during the previous academic year." 74 Returning students who had been a part of the p rogram could continue to attend religious schools, but new students would not be permitted to use public funds to participate. State officials then filed a motion in the Sixth Circuit Court of Appeals to extend the stay to include students new to the Prog ram. When the Sixth Circuit Court of Appeals did not rule on the motion, state officials petitioned the U. S. Supreme Court to stay the injunction. On November 5, 1999, the U. S. Supreme Court, 75 by a 5 4 vote, granted the state's motion for a complete sta y of the preliminary injunction, thereby allowing the program to continue until the Sixth Circuit resolved the issue 76 Members in favor of granting the stay were Chief Justice ainst granting the stay were Justices Stevens, Souter, Ginsburg, and Breyer. 77 U. S. Supreme Court 73 Id at 840. The district court concluded its injunction order as follows: Plaintiffs have a very substantial chance of succeeding on the meri ts. The Cleveland Program does not make aid available without regard to the nature of the schools to be benefited sic. The participating schools are overwhelmingly sectarian. This means that parents cannot make an educational choice without regard to wheth er the school is parochial or not. Consequently, the Cleveland Program has the primary effect of advancing religion. Failing to grant the injunction under such circumstances would not only be contrary to law, but could cause an even greater harm to the chi ldren by setting them up for greater disruption at a later time. Therefore, the injunction is granted and the Defendants are enjoined from instituting or continuing to administer this Program pending the outcome of a decision on the merits in this case. Simmons Harris v. Zelman, 54 F. Supp. 2d 725, 741 42 (1999) (order granting temporary injunction of the Voucher Program during the course of litigation). 74 Zelman 72 F. Supp. 2d at 840. 75 Zelman v. Simmons Harris, 120 S. Ct. 443, 145 L. Ed. 2d 346 (1999). 76 Zelman 72 F. Supp. 2d at 841. 77 Zelman v. Simmons Harris, 120 S. Ct. 443, 145 L. Ed. 2d 346 (1999).

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164 164 ase. 78 On November 15, 1999, the Sixth Circuit Court of Appeals placed all appeals in abeyance, pending final disposition of the matter by the trial court. 79 On December 20, 1999, the trial court granted the plaintiffs' motion for summary judgment, holding t hat the Cleveland Scholarship and Tutoring Program impermissibly violated the Establishment Clause. 80 In Simmons Harris v. Zelman 81 the U. S. District Court for the Northern District of Ohio ruled that the Cleveland voucher program violated the Establishme nt Clause of the Constitution. 82 The court stayed the injunction, leaving the Voucher Program in operation pending the resolution of the defendants' appeal to the Sixth Circuit Court of Appeals. 83 The District Court agreed with the Ohio Supreme Court that t he Cleveland voucher had a secular purpose and did not promote an excessive entanglement between church and state. effect of advancing religion through government 84 and created an incentive to attend religious schools. 78 Linda Greenhouse. White House Asks Justices for a Ruling on Vouchers, New York Times, July 8, 2001, available at http://nytimes.com /2001/07/08/politics/08SCOT.html. 79 Zelman, 72 F. Supp. 2d at 841. 80 See id at 834. 81 72 F. Supp. 2d 834 (N.D. Ohio 1999). 82 See id at 865. 83 See id. The court noted that "because counsel for all Plaintiffs have consented to a stay of this court's Order pending Sixth Circuit review, this court hereby stays said Order in its entirety pending such review." 84 Id. at 864 865.

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165 165 The District Court ruled that Committee for Public Education and Religious Liberty v. Nyquist 85 was the controlling precedent. The court compared the Cleveland progr am to the unconstitutional tuition reimbursement program in Nyquist The overwhelming majority of attend a religious school cannot 86 The court found the program impermissibly created incentives for students to attend religious schools since voucher students can on ly redeem their vouchers at schools which have registered and are authorized to participate in the program and the vast majority of those were religious. On December 11, 2000, a divided panel (2 1) of the Sixth Circuit Court of Appeals affirmed the Distri 87 The majority held that the program violated the Establishment Clause on the grounds that it had the primary effect of advancing religion and 88 The Sixth Circuit Court of Appeals did not consider other educational 89 Relying on the 1973 U. S. Supreme Court decision of Committee for Public Education and Religious Liberty v. Nyquist 90 the Circuit Court of Appeals reasoned that i n both Nyquist and the Cleveland Program the majority of participating schools were religious. 91 The court determined that the program was not neutral and found that the relatively low scholarship amount 85 413 U.S. 756, 93 S.CT. 2955 (1973). 86 Id. at 863. 87 Simmons Harris v. Zelman 234 F.3d 945 (6th Cir. 2000). 88 Id. at 961. 89 Id. at 958. 90 413 U.S. 756 (1973). 91 Simmons Harris v. Zelman 234 F.3d at 958.

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166 166 discouraged nonreligious schools from participating. 92 Therefore, Cleveland families had no 93 Judge Ryan dissented, finding the New York statute at issue in Nyquist 94 He noted the purpose of the New York statute was to help priv ate schools financially, whereas the purpose of the Ohio Program was to help poverty level students. 95 Judge Ryan also noted the U. Nyquist decisions had undermined Nyquist ate choice program. 96 Thus, one interpretation of the Cleveland voucher program was deemed constitutional in the state court but found unconstitutional in the federal courts. In December 2000, the state of Ohio filed a petition for rehearing and suggestion for rehearing en banc The Court of Appeals denied the petition in February 2001. 97 The court, in March 2001, issued a stay of mandate pending the filing of any petitions for certiorari which the State Petitioners filed for on May 23, 2001. In June 2001, in furtherance of administrative policy, Solicitor General Theodore Olson requested the U. S. Supreme Court to hear three appeals 98 concerned with the constitutionality of 92 Id. at 959. 93 Id. at 960. 94 Id. at 963. 95 Id. at 965. 96 Id. at 973. 97 State Pet. App. at 166a 67a. 98 Zelman v. Simmons Harris, Hanna Perkins School v. Simmons Harris, and Taylor v. Simmons Harris

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167 167 the Ohio Pilot Project Scholarship Program. 99 The State of Ohio, a group of voucher pa rents, and several religious schools participating in the program had previously petitioned the U. S. Supreme Court to hear the cases 100 until the U. S. Supreme Court agrees to hear a case or whether to hear the case. Filing this brief in advance of the U. S. Supreme Court accepting certiorari sent a signal to the U. S. Supreme Court of the high priority the George W. Bush administration attached to the vou cher issue. 101 whether such programs are a constitutionally permissible option for expanding education opportunity for children enrolled in failing public schools across Ame rica, or whether other 102 U. S. Supreme Court Decision In Zelman v. Simmons Harris 103 the Court held that the Cleveland voucher program does not violate the Establishment Clause of the U. S. Const itution. The Court held the Ohio program 104 99 Linda Greenhouse. White House Asks Justices for a Ruling on Vouchers New York Times, July 8, 2001, available at http://nytimes.com/2001/07/08/politics/08SCOT.html. 100 See Linda Greenhouse. White House Asks Justices for a Ruling on Voucher s, New York Times, July 8, 2001, available at http://nytimes.com/2001/07/08/politics/08SCOT.html ; Mark Walsh. Supreme Court To Hear Pivotal Voucher Case Education Week, October 3, 2001, a vailable at http://www.edweek.org/ew/ew_printstory.cfm?slug=05scotus.h21. 101 Linda Greenhouse. White House Asks Justices for a Ruling on Vouchers New York Times, July 8, 2001, available at http://nytimes.com/2001/07/08/politics/08SCOT.html. 102 Id 103 536 U. S. 639 (2002). 104 Id at 653.

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168 168 105 with vou 106 Participants in this program are religiou 107 108 Chief g opinions. Of the four dissenting justices, three wrote dissenting opinions. While the majority did not explicitly refer to the Lemon test, the criteria were briefly 109 110 The Court held that the decision to use state vidual recipient, not to the 111 Chief Justice Rehnquist, began his written analysis of the Ohio voucher program by distinguishing impermissible direct aid to religious school programs from indi rect programs where the private choices of individuals determine whether, and how much, public aid reaches religious schools. 112 The Court held that the Cleveland voucher program was in the latter 105 Id. at 662. 106 Id. 107 Id 108 Id. 109 Id at 649. 110 Id. 111 Id at 652. 112 Id at 649.

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169 169 category of "neutral government programs that provide aid dir ectly to a broad class of individuals." 113 According to the Court, any aid from the Cleveland program to religious schools was a consequence of the "genuine and independent choices of private individuals." 114 The Court analogized the Ohio program to the "true private choice" programs 115 found permissible in Mueller, 116 Witters, 117 and Zobrest. 118 Employing the Mueller precedent, the Zelman Court found the presence of private choice and the neutral availability of benefits to all parents of children in the Cleveland School District to be an important element in favor of the program's constitutionality. 119 The Court, in Witters and Zobrest employed the same private choice rationale of the Mueller decision. her the Ohio program has the forbidden 'effect' of advancing or inhibiting religion." 120 Stating that "our jurisprudence with respect to true private choice programs has remained consistent and unbroken," 121 the Court rogram is neutral with respec t to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious 113 Id 114 Id 115 Id 116 Mueller v. Allen 463 U. S. 388 (1983) (The Court upheld the constitutionality of a Minnesota program allowing tax deductions f or educational expenses to all parents, whether their children attend public school or private). 117 Witters v. Wash. Dept. of Servs. For the Blind 474 U. S. 481 (1986) (upholding a vocational rehabilitation program that paid the tuition for a student who w as blind at a religious school because he freely chose to attend a religious school). 118 Zobrest v. Catalina Foothills Sch. Dist ., 509 U. S. 1 (1993) ( holding that the presence of a sign language interpreter in a religious school did not violate the Estab lishment Clause). 119 Zelman at 650. 120 Id. at 649. 121 Id

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170 170 schools wholly as a result of their own genuine and independent private choice, the program is not re adily subject to challenge under the Establishment Clause." 122 The Court defined "neutral educational assistance" as the offering of "aid directly to a broad class of individual recipients defined without regard to religion." 123 Since the Ohio program gives th e tuition scholarships directly to parents of eligible students on a neutral basis, and these same parents alone choose where to spend these tuition scholarships, the fact that religious schools indirectly benefit from these parental choices does not offen d the Establishment Clause. 124 inhibiting religion, since there was no dispute that the program had been enacted for the r schoolchildren. 125 The majority relied primarily on the private choice aspect of the scholarship program in finding it constitutional. Reliance on private choice was expected by school voucher advocates, since private choice is the defining characteristic of a voucher program. In Mitchell v. Helms 126 viewed private choice as an adjunct to the more important elements of "neutrality" and the general availability aspect of the program benefit. 127 122 Id at 652. 123 Id at 662. 124 Id at 662 663. 125 Id at 649. 126 Mitchell v. Helms 530 U.S. 127 Id. at 810 11, 816 ("Although the presence of private choice is easier to see when aid literally passes throu gh individuals' hands, there is no reason why the Establishment Clause requires such a form."); see also Green, The Constitutionality of Vouchers After Mitchell v. Helms supra note 16, at 64 65.

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171 171 ing vote on a closely divided court and therefore crucial to the Zelman majority. 128 She had criticized the Mitchell plurality for emphasizing program neutrality as the factor controlling constitutionality in her concurring opinion. 129 Justice on likely explains the Zelman Court's emphasis on private choice as being the determining factor for constitutionality. According to Chief Justice Rehnquist, writing for the majority, for "true private choice" to exist and be effective for constitutional purposes, 130 institutions only by way of the deliberate choices of numerous individual recipients." 131 In 132 and provide parents with a "range of educational ch oices." 133 Rehnquist opined that the Cleveland program is "entirely neutral with respect to religion." 134 He noted that "Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class o f individuals, who, in turn, direct the aid to religious schools or institution of their own choosing. Three times we have rejected such challenges. 135 128 See Tony Mauro, nts freedomforum.org http://www.freedomforum.org/templates/document.asp?documentID=15766&printerfriendly=1 ; see also Mark Walsh, A School Choice For the Supreme Court Education Week 2/27/02 http://www.edweek.org/ew/newstory.cfm?slug=24vouch.h21 129 See Mitchell 530 U.S. at 837 (O'Connor, J., concurring in the judgment) ("the plurality's treatment of neutrality [as] coming close to assigning that factor si ngular importance in the future of Establishment Clause challenges to government school aid programs."). 130 Zelman 536 U.S. at 650. 131 Id. at 652. 132 Id. at 662. 133 Id at 655. 134 Id at 662. 135 Id at 649.

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172 172 The majority opinion held that "neutral educational assistance programs that, like the program here, of fer aid directly to a broad class of individual recipients defined without regard to religion" 136 are constitutional. Ohio's voucher law for Cleveland does not violate the First Amendment's Establishment Clause because parents, and not the religious schools, receive the public funds and make "private choices" about where their children attend school and the number of students who choose to use that assistance at a religiously affiliated private school is irrelevant for constitutional purposes. The Court held that "[t]here is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system." 137 The Court determined that the Establishment Claus e question "must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a 138 The Court noted "none of the dissenting opinions explain how there is any perceptible difference between scholarship schools, community schools, or magnet schools from the perspective of Cleveland parents looking to choose the best educational option for their school age children. Parents who choose a program school in fact receive from the state precisely what parents who choose a community or magnet school receive the opportunity to send their children largely at state expense to schools they prefer to their local public school." 139 The majority opinion held that even thoug h the majority of the private schools are religious, the character of the school does not render the program unconstitutional. 136 Id at 662. 137 Id at 649. 138 Id at 656. 139 Id at 660 footnote 6.

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173 173 In Zelman the U. S. Supreme Court reasoned that any government funds going to religious choice of school, not the government. The Establishment Clause was not violated because families, not government, decided where to spend the vouchers. Supreme Court Responses to Respondent's Argument The Court responded to several questions raised by thos e challenging the statute. The initial question to be answered was whether the money provided through the program to participating sectarian private schools was "properly attributable to the State," 140 as a form of "an impermissible 'direct [State] subsidy'" to the schools, or was "a permissible [parental] transfer" to the schools. The latter was "similar to [a] hypothetical salary donation" by a government employee from a government paycheck to a religious institution. The Court found precedent for the Zelm an decision in a series of cases that allowed government to provide services and benefits to parents and students in private and religious shift from requiring stri ct separation between government and religion, to allowing interchange between government and religious organizations. In reaching the Zelman decision, the majority relied on three previous Establishment Clause cases involving private individuals choosing to use public money to indirectly support private religious schools. In Mueller v. Allen 141 for parents paying for private and parochial school tuition was not a violation of the Establishment Clause. In Witte rs v. Washington Department of Services for the Blind 142 the Court upheld a vocational scholarship program that provided tuition aid to a student attending a 140 Witters v Washington Department of Services for the Blind 474 U.S. 481, 489 (1986). 141 463 U.S. 388, 1983 142 474 U.S. 481, 1986

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174 174 religious institution to become a pastor. In Zobrest v. Catalina Foothills School District 143 the Co urt determined that a federal program that paid for sign language interpreters for deaf children enrolled in religious schools was not a violation of the Establishment Clause. 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. A program that shares these features permits government aid to reach religious institutions only by way of the or the perceived end orsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits." This program is one of "true private choice," consistent with Mueller, Witters, and Zobrest, and thus constitutional. The Court noted that they "have never found a program of true private choice to offend the Establishment Clause. nd why, in a particular area, at a particular time, most private schools are run Therefore, despite the overwhelming number of parents choosing religious schools, the program mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government. 143 509 U.S. 1, 1993

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175 175 Second, the Court considered whether the program has "the [impermissible] effect of advancing religion by creating a financial incentive to undertake religious indoctrination." It found that "the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religio n ( any parent of a school age child who resides in the Cleveland City School District ) The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a fin ancial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion." 144 Financial incentives "[are] not present where the aid is allocated on the basis of neutral, secular criteria th at neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis The program here in fact creates financial disincentives for religious schools, with private schools receiving o nly half the government assistance given to community schools and one third the assistance given to magnet schools." Despite this analysis, the Court went on to hold that "[a]lthough such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program creates financial incentive[s] for parents to choose a sectarian school. Third, the Court rejected the claim that the voucher program impermissibly confers a message of the state endorsement of rel igion and the applicability of Committee for Public Education and Religious Liberty v. Nyquist 145 In Nyquist the Court had struck down the New 144 Zelman at 653. 145 413 U.S. 756 (1973).

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176 176 York program because it found the benefits were really tuition grants for parents of religious school students an d not a genuine tax deduction available on neutral terms without reference to religion. In Zelman the Court held that "[a]ny objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broa der undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general. In summary, the majority upheld the Cleveland voucher program for several specific voucher program elements. First, the voucher program w as entirely neutral with respect to religion. Second, the voucher program provided benefits directly to a wide spectrum of individuals who were defined only by financial need and residency. Lastly, the voucher program permitted individual parents to exerci se genuine choice among public and private, and secular and religious school options. Concurring Opinions In her concurring opinion, Justice O'Connor wrote that the majority opinion in Zelman was not "a major departure from the Court's prior Establishment Clause jurisprudence" since, from the Court's first Establishment Clause ruling upholding the provision of bus transportation to public and parochial students alike, the Court only has "require[d] that state aid flowing to religious organizations through the hands of beneficiaries must do so only at the direction of those beneficiaries." 146 O Connor stated that "[t]he share of public resources that reach religious schools is not as significant as respondents suggest" because while "$8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments 146 Zelman, at 2476.

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177 177 already provide religious institutions" 147 without there being any serious question regarding the constitutionality of such suppor t. evaluation of all reasonable educational options provided to the Cleveland school system, regardless of whether they are formally made available in the same section o f the Ohio Code as the voucher program. She insisted that the facts are critical in cases arising under the Establishment Clause, saying that failing to look at all of the educational options is "to ignore how the educational system in Cleveland actually f unctions. In the Ohio program "parents of students eligible for vouchers have a genuine choice between religious and nonreligious schools" and it is only through these choices that government monies reach religious schools. As a result, for Justice O'Con nor the program "is consistent with the Establishment Clause." 148 program in Zelman Some U. S. Supreme Court observers had expected her to limit the impact of Zelman by inc luding some conditions in a separate assenting opinion, but no such cautions were made. 149 In previous public aid to religious schools cases, she had qualified her opinion by insisting on the distinction between aid programs that provide funds directly to re ligious affiliated institutions (giving the appearance that government endorses religion) versus aid programs that provide money to individuals who in turn decide where to spend the funds. 150 147 Id. at 2474. 148 Id. at 2478. 149 Bi skupic, Joan, and Tamara Henry. "Church, State Wall Is Lowered in Schools." USA Today (June 28, 2002). 150 State Divide at Issue in Ohio 6.

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178 178 Only Justice Clarence Thomas focused on civil rights issues involved in allowing poor and minority students the same choice in private education that is available to wealthier students. He city public schools deny emancipation to urban minority students." 151 Despite the promises of Brown v. Board of Education 152 which struck down school segregation, "urban children have been forced into a system that continually fails them." 153 Justice Thomas criticized opponents of school vouchers 154 He rejected the argument that school vouchers undermine the democratic ideal of common public schools by stating: While the romantici zed ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high tech and advanced society. As Thomas Sowell noted 30 years ago: Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities. The same is true today. 155 e failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives. If society cannot end racial discrimination, at least it can arm minoriti es with the education to defend themselves from some of discrimination's effects." 156 151 Zelman, 536 U.S. at 676. 152 347 U.S. 483 (1954). 153 Zelman, 536 U.S. at 676. 154 Id. at 682. 155 Id 156 Id at 2482.

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179 179 Justice Thomas proposed that the Court apply a dual standard to Establishment Clause challenges: a restrictive one applicable to the federal government and a more relaxed o ne applicable to the states. He added, "Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs because they provide the greatest educational opportunities for their children in struggling communities." 157 Dissenting Opinions The four dissenting justices asserted that the Zelman decision was a fundamental break with prior church argued that the program is a very large transfer of state funds to religious organizations, where the funds can be used for religious purposes. Justice David Souter wrote the principal dissent, joined by Justices Stevens, Ginsburg, and Breyer. For Justice religious liberty. 158 He objected to the use of any public funds to support educatio nal programs run by religious schools. The Cleveland voucher program allows public funding to be directed to religious schools and indoctrination. In his view, the Court was wrong when it focused on all of the funds the state of Ohio makes available for p ublic education as the backdrop for a decision on whether the program is "neutral" with respect to religion. The Court should not have considered the various types of public education to be an option because these schools are part of the public school syst em and 157 Id. 158 Id

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180 180 are separate from private schools. The wide range of public school choices does not validate the inclusion of religious private school choices. Justice Souter objected to the reasoning regarding neutrality and private choice and added that the decis ion will lead to religiously divisive debates about whether schools teaching doctrines abhorrent to a majority of citizens. exist to preserve constitutional values in hard cases, like these." The fact that the Cleveland schools are in such a dismal state does not change the constitutionality of the program. Justice Souter ended his dissent with a plea "that a future Court will reconsider [this] dramatic departure from basic Establishment Clause principle." 159 Justice John Paul Stevens agreed with Justice Souter that the failings of the Cleveland public school system were irrelevant to the constitutional ity of vouchers. He noted that since the vast majority of the voucher recipients receive religious indoctrination at state expense the conclusion may be drawn that the law is one "respecting an establishment of religion." Justice Stevens concluded, "Whenev er we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundations of our democracy." 160 s "the risk that publicly financed voucher programs pose in terms of religiously based social conflict." 161 He explained, "voucher 159 Zelman at 2502. 160 Id at 2485 (Stevens, J., dissenting). 161 Id. at 2502 (Breyer, J., dissenting).

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181 181 programs differ in both kind and degree from aid programs upheld in the past." 162 First, "they differ in kind because they direct financing to a core func tion of the church: the teaching of religious truths to young children." 163 Second, they differ in degree because "the aid programs recently upheld by the Court involved limited amounts of aid to religion," whereas the new conc eption of neutrality "appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools." 164 Justice Breyer stated that the majority "turns the clock back" and "adopts, under the name of 'neutrality,' an inte rpretation of the Establishment Clause that this Court rejected more than half a century ago." 165 Significance Zelman v. Simmons Harris 166 is a landmark decision in Establishment Clause jurisprudence. 167 The U. S. Supreme Court upheld the constitutionality of th e Cleveland voucher program that allows parents to use state funds to send their children to religious schools. This is significant because, for many years, there were questions about whether the participation of religious schools in a voucher program woul d survive a constitutional challenge under the Establishment Clause of the First Amendment to the U. S. Constitution. After Zelman it appears that the Establishment Clause will permit voucher plans to include religious schools under certain circumstances. 162 Id at 2507. 163 Id. 164 Id. 165 Id at 2508. 166 536 U.S. 639 (2002). 167 See John C. Jefferies, Jr. & James E. Ryan, A Political History of the Establishment Clause 100 MICH. L. REV. 279, 279 (2001).

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182 182 send their children to private religious schools. The decision symbolized an important legal victory for school voucher proponents seeking constitutional support for existing voucher programs. Proponents also hope the Zelman decision may lead to voucher legislation in other states. Zelman removed the constitutional barrier of public funding being spent on inherently religious activities so long as the funds first flowe d through the hands of private individuals. 168 The key to the Zelman decision is to understand the three criteria the U. S. Supreme Court The first important criterion met is that the Clevel and voucher program was neutral 169 Both the class of beneficiaries the Cleveland public school students and the class private schools within Cleveland were eligible, as were adjacent public school districts. There were no terms more favorable to religious schools than to other schools. In fact, public schools were given more favorable treatment than private schools. Participating adjacent public schools pupil contribution. Parents could choose community schools (charter s chools) or magnet schools in the 168 See Steven K. Green, f 2 FIRST AMENDMENT LAW REVIEW, 108 (2004); Steven K. Green, Private School Vouchers and the 10 GEO. MASON U. CIVIL R. LAW J. 47, 50 (2000); Laura S. Underkuffler, Vouchers and Beyond: The Individual as Causati ve Agent in Establishment Clause Jurisprudence 75 IND. L.J. 167, passim (2000). 169 Id at 653.

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183 183 Cleveland public system and receive free tuition, while at private schools all parents were required to make at least some co payment. 170 The Cleveland program actually provided less money to private schools, including religi ous schools, than the state gave to various public alternatives -$2,250 per student to private schools compared with $4,167 to $6,000 in state funding per student for the public options. The Zelman of the program are 171 Secondly, the majority emphasized the fact that public funds reached religious schools provide aid directl 172 The Court cited earlier decisions approving the provision of materials and equipment to religious schools, but holding that direct aid must be restricted to secular uses even if made broadly available on the same terms to religious and nonreligious alike. 173 For school vouchers to be valid under the U. S. Constitution, the voucher program must channel funds through some mechanism of individual choice. In Cleveland, parents endorse their state check over to the s chool. States cannot provide funds directly to private schools on a per student basis because parents who chose a private school would not have the option of declining the aid attributable to their child. 174 Fundamental to the direct versus indirect question is whether the beneficiary of the program is an institution or an individual. Simply assuring that an individual receives the check 170 Id at 2468. 171 Id. 172 Id. at 2465. 173 See Mitchell v. Helms 174 530 U. S. at 842.

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184 184 is not sufficient, however. The Court also requires that the individual have genuine, independent choice. Finally, Zelman e 175 Parents were given the following choices for their children: nonreligious private schools, community schools (charter) or magnet public schools, adjacent suburban public schools that agreed to accept voucher students, and finally they could keep their children in Cleveland publ ic schools with a publicly funded tutor. The Zelman decision suggests several ways to determine whether choice and options available to parents are genuine. First, the actual percentage of aid that ends up at religious institutions will usually be irreleva nt to whether other options are deemed genuine. Voucher opponents strongly objected to the fact that forty six of fifty six participating private schools (82 percent) were religious and that in the litigation year 96 percent of the voucher funds were used at religious schools. The Court responded that because 81 percent of private schools in Ohio are independent of it. 176 The Court added that basing a standard of constitutionality on the actual statistics would vary from year to year and lo cation to location. 177 175 Zelman 122 S. Ct. 2469, 2473. 176 Id. at 2469 71. 177 Id. at 2470.

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185 185 Secondly, the requirement of genuine secular options appears to reinforce the neutrality requirement. As long as the decision of private schools to participate in the voucher program and the decision of the parents to enroll their chi ldren in religious schools cannot be attributed to any government action, the actual choices made by parents and the involvement, or lack of involvement, of particular schools has no bearing on the constitutionality of the program. A different analysis wou ld apply if the preponderance of religious schools participating in the program or the percentage of children enrolled in religious schools could be traced to government action promoting religious school involvement or skewing parental decisions toward the enrollment of their children in religious schools. all options Ohio provides Cleveland sc 178 The Cleveland program was part of a much wider program of multiple educational options, community and magnet schools and after school tutoring which offered parents a real choice between religious and nonreligious schools (perhaps even prov iding incentives for nonreligious education). When the community and magnet schools were counted as relevant options, the percentage of children who chose religious schools was less than 20 percent. 179 The Court majority places the burden of proof on those c hallenging the genuineness 180 The Court concluded that vouchers did not lend "official" endorsement to any religion or religious message by leaving the schoo l choice decision to parents rather than government. The 178 Id at 2469 (emphasis in original). 179 Id at 2471. 180 Id.

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186 186 result of Zelman is that now according to the U.S Constitution, there is no federal constitutional impediment to government subsidies of private and religious schools provided 'true choice' exists in the voucher program. In Zelman a significant portion of the funds appropriated for the voucher program reached religious schools without restrictions on the use of those funds, which is a change from past decisions. Implications Voucher opponents and pro ponents argued very categorical viewpoints. Opponents of vouchers held the view that equal treatment of religious and secular institutions is required and that the prin Amendment. The result in Zelman was a narrow constitutional victory for voucher proponents. The legal impact of private choice remains undetermined. To fully understand the e ffect of private choice on earlier constitutional analysis, it needs to be understood how a voucher differs from other forms of public aid the Court had previously allowed to flow to religious schools. The Court noted that its previous decisions consistent ly distinguished between government programs government aid reaches religious schools only as a result of the choice of private individuals). In the past, the Cour t's Establishment Clause decisions have been criticized for being perplexing, 181 but there had been an unwavering prohibition on unrestricted public funds flowing to pervasively religious institutions. 182 Several of the cases the Court found unsatisfactory 181 See, e.g., Carl H. Esbeck, A Restatement of the Supreme Court's Law of Religious F reedom: Coherence, Conflict, or Chaos?, 70 Notre Dame L. Rev. 581 (1995). 182 Bowen v. Kendrick 487 U.S. 589, 609 10 (1988). ("Even when the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct government a id to religious affiliated institutions does not have the primary effect of advancing religion. One way in which direct government aid might have that effect is if the aid flows to institutions that are "pervasively sectarian.'"). See also Agostini v. Felt on 521 U.S. 203, 228 29

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187 187 inv olved aid to religious schools, even though the aid was designated for secular purposes. 183 As the Court then indicated, such aid was unconstitutional because there was no guarantee, due to the fungible nature of money that the public funds would not pay for religious activities. 184 Until the Zelman decision, every public aid program upheld by the Court (with the exception of Witters) 185 involved a benefit that was controlled or provided by public authorities, 186 targeted or earmarked for a discrete, secular activi ty, 187 or of an identifiable secular nature such that there was no danger that the benefit could be diverted for religious uses. 188 An additional factor the Court considered was whether the benefit supplemented or supplanted the educational functions of the re ligious school. 189 Applying these criteria, the Court upheld benefits such as public transportation, 190 text and library books, 191 mandated testing, 192 nursing, 193 diagnosis, 194 (1997); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 12 (1993); Tilton v. Richardson 403 U.S. 672, 679 80 (1971). 183 See Meek v. Pittenger 421 U.S. 349, 366 (1975); Comm. for Pub. Educ. & Religious Liberty v. Nyquist 413 U.S. 756, 774 75 (1973); Levitt v. Comm. for Pub. Educ. & Religious Liberty 413 U.S. 472 (1973); Lemon v. Kurtzman 403 U.S. 602, 607 (1971); accord, Sch. Dist. of the City of Grand Rapids v. Ball 473 U.S. 373, 392 (1985). Cf. Comm. for Pub. Educ. & Rel igious Liberty v. Regan 444 U.S. 646, 657 58 (1980) (allowing cash reimbursements to religious schools for administering and grading state prescribed tests). 184 Ball 473 U.S. at 386. 185 Witters v. Wash. Dep't of Serv. for the Blind, 474 U.S. 481, 482 (1986 ). Although Regan also involved a transfer of cash rather than in kind items, those funds were earmarked for the costs of performing state mandated tasks. 444 U.S. at 657. 186 Agostini, 521 U.S. at 209; Zobrest, 509 U.S. at 8. 187 Mitchell v. Helms 530 U.S. 7 93, 802 (2000); Agostini 521 U.S. at 209; Regan 444 U.S. at 650 52; Tilton 403 U.S. at 615. 188 Mitchell 530 U.S. at 827 28; Agostini 521 U.S. at 228 29; Zobrest 509 U.S. at 10 11; Regan 444 U.S. at 657 58; Tilton 403 U.S. at 675; Wolman v. Walter 4 33 U.S. 229 (1977); Bd. of Educ. v. Allen 392 U.S. 236, 245 48 (1968). 189 Agostini 521 U.S. at 228 29; see also Zobrest 509 U.S. at 12 (stressing that public programs that take over "a substantial portion of [a religious school's] responsibility for teac hing secular subjects" amounts to "direct aid ... [which] is indistinguishable from the provision of a direct cash subsidy to the religious school."). 190 See Everson v. Bd. Of Educ ., 330 U.S. 1, 17 18 (1947). 191 See Allen 392 U.S. at 238; Wolman 433 U.S. a t 255; Mitchell 530 U.S. at 803.

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188 188 therapy, 195 and special education services 196 conducted by public employees, but struck down g rants for building construction and maintenance 197 or that supplanted the teaching of secular subjects. 198 In Mitchell the Court reaffirmed that its holdings "provide no precedent for the use of public funds to finance religious activities." 199 The Court took g reat care to note that under the programs it had approved no "[public] funds ever reached the coffers of religious schools." 200 The Court agreed that there are "special Establishment Clause dangers ... when money is given to religious schools." 201 This princip le held true even when the government program provided aid alike to public and private religious and nonreligious entities. 202 support of religion. In deciding the case, the majority relied on the distinction between government programs that provide direct aid to religious schools, and those providing indirect 192 See Regan 444 U.S. at 657 58; Wolman 433 U.S. at 240 41. 193 Wolman 433 U.S. at 242. 194 See id 195 Id. at 248. 196 See Agostini, 521 U.S. at 234. 197 See Nyquist, 413 U.S. at 779 80. 198 See Ball 473 U.S. at 377 78; Wolman 43 3 U.S. at 248 51. 199 See Mitchell 530 U.S. at 840 (O'Connor, J., concurring in the judgment) (quoting Rosenberger 515 U.S. at 847 (O'Connor, J., concurring). 200 Agostini 521 U.S. at 228; Zobrest 509 U.S. at 10. 201 Mitchell 530 U.S. at 818 19 (plurality o pinion) (quoting Rosenberger 515 U.S. at 842. 202 Rosenberger 515 U.S. at 842; Bowen 487 U.S. at 614 15; Roemer v.Maryland Pulic. Works Bd. 426 U.S. 736, 747 (1976) ("The Court has taken the view that a secular purpose and facial neutrality may not be en ough, if in fact the State is lending direct support to a religious activity. The State may not, for example, pay for what is actually a religious education, even though it purports to be paying for a secular one, end even though it makes its aid available to secular and religious institutions alike.").

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189 189 aid. The Court was clear that they were deciding this case as part of the line of cases approving indirect aid Presently, two new appointments have been made to the U. S. Supreme Court, but the internal dynamics of the Court have not changed greatly. 203 At their confirmation hearings, both Chief Justice John Roberts (who replaced William Rehnquist) and Justice Samue l Alito (who Several Justices are seventy or older and their tenure on the Court may be transitory. Any additional membership changes on the Court, could substantially s hift alliances on such issues as the constitutionality of school voucher programs that permit religious school participation. For instance, if Justice Stevens, who maintains a strict separationists view of the Establishment Clause, should retire and be rep laced by a Justice who favors government accommodation toward religious schools, the constitutionality of voucher programs and other public aid to religious schools will be assured. The next decade may dramatically affect the permissible line between churc h and state. 203 See Critiques, and the Law Clerk Issue. FindLaw Writ Thursday, July 6, 2006. Available at http://writ.new s.findlaw.com/lazarus/20060706.html

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190 CHAPTER 5 SUMMARY, CONCLUSIONS IMPLICATIONS, AND RECOMMENDATIONS The primary units of analysis for this study were investigations of the constitutionality of school vouchers that provide public aid to religious schools into case law and legislative record. In addition, scholarly commentary about school vouchers in terms of public policy was also used as a source of analysis. The literat ure review of this study provided a theoretical framework from which to interpret the observations of school voucher interest groups and their role in the legislative policy formation process. On September 25, 2001, the U. S. Supreme Court agreed to revie w a U. S. Sixth Circuit Establishment Clause of the First Amendment. 1 The Sixth Circuit Court based the decision on precedent from the U. Committee f or Public Education v. Nyquist 2 which held a New York tuition subsidy for low income students in private schools unconstitutional. The U. S. Supreme Court had previously declined to hear appeals arising from other school choice programs. 3 Considerable att ention was focused on Zelman v. Simmons Harris 4 because the Court's rationale would have significant implications for other states considering any type of state aid which might result in financial assistance to religious schools. If, in reaching the Zelma n decision, the Court had concluded that the Ohio voucher plan unconstitutionally advances religion, the national school voucher movement might have been severely stalled. Alternately, if 1 Simmons Harris v. Zelman 234 F.3d 945 (6 th Cir. 2000). 2 413 U.S. 756 (1973). 3 See Jackson v. Benson 578 N.W.2d 602 (Wis. 1998), cert. denied 525 U.S. 997 (1998); Bagley v. Raymond Sch. Dept ., 728 A.2d 127 (Me. 199 9), cert. denied 528 U.S. 947 (1999); Strout v. Albanese 178 F.3d 57 (1 st Cir. 1999), cert. denied 528 U.S. 931 (1999); and Chittenden Town School District v. Vermont Department of Education (97 275); 169 Vt. 310; 738 A.2d 539 (1999). 4 536 U.S. 639 (20 02).

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191 the Court had upheld the Ohio plan, as it has, other states may be encouraged to experiment with various types of voucher systems. In Zelman the Court held that the Cleveland Scholarship and Tutoring Program (CSTP) did not violate the Establishment Clause of the U. S. Constitution. 5 The Court found that the program was enacted for a valid secular purpose 6 and was one of true private choice. 7 The Court held that the program is neutral in all respects toward religion, 8 permits participation of all types of schools, 9 and provides educational assistance directly to a broad c lass of citizens who, 10 as a result of their independent and private choice, direct aid to religious schools. 11 The U. S. Supreme Court in Zelman found school voucher plans that allow the participation of religious schools to be constitutional at the federal enactment of a statewide voucher program in 2005, 12 proposals for voucher programs have had little success in state legislatures since Zelman The constitutionality of school voucher legislation must be determined by state constitu tional provisions. At this time, it appears that state provisions prohibiting funding of religious schools will survive state constitutional challenge. 5 Zelman at 663. 6 Id at 649. 7 Id at 653. 8 Id 9 Id 10 Id 11 Id 12 Educational Choice Scholarship Pilot Program, Ohio Rev. Code Ann. 3310.01 3310.17 Available at http://www.legislature.state.oh.us/BillText126/126_HB_66_EN1_N.html (last visited F eb. 20, 2007).

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192 Summary This study traced the school voucher movement in the United States, specifically examining the O hio Pilot Project Scholarship Program and subsequent legal challenges that culminated in the U. Zelman v. Simmons Harris decision. First, the study highlighted parental choice as a policy trend the Court found persuasive in Zelman Secon dly, this research summarized the U. S. Supreme Court Establishment Clause standards with regard to direct public aid for religious schools traced the shift in U. S. Supreme Court Establishment Clause doctrine, summarized indirect public aid for religious schools, and described pertinent judicial decisions the Court found applicable in Zelman Third, a review of litigation was presented pertaining to the Cleveland Voucher Program and culminating with the U. S. Supreme Court decision in Zelman v. Simmons H arris Finally, this study briefly reviewed school voucher legislation at the federal and state level since the Zelman decision. In the 1990s, a resurging interest in parental choice as an essent ial policy came to the efforts to promote various school policies have led, in part, to the increased interest in school vouchers as a public policy tool. Trend s in school reform generally occur in response to a was renewed. He recommended that families be given subsidies in the form of educational vouchers to purchas e educational services for thei r children at government approved schools, in much the same way people buy any necessary commodity. 13 He advocated freedom for families to spend the voucher amount, and any additional amount, at the educational institution of their 13 Economics and the Public Interest. Robert A. Solow, ed. New Brunswick, N.J.: Rutgers University Press, 1955, 123 144.

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193 minimum standards of approval of educational institutions. 14 Voucher proponents argue that low income parents should have the liberty to choose any public or priva te school for their children, with public funding supporting all or a portion of the costs. The parental right to choose the appropriate educational setting for their children is meaningless if poor families cannot exercise true private choice because of f inancial and/or residential constraints. According to education historians, the question of whether state interests take precedence over parental interests has been a fundamental controversy within education policy from the beginning of public education in America. as part of significant shifts in the functions of families and the status of children and or at least some families, like those of the poor and foreign born were failing to carry out their traditional reflected an animus against parents considered incompeten t to train their children. Often combining fear of social unrest with humanitarian zeal, reformers used the powers of the state to intervene in families and to create alternative institutions of socialization. 15 Public school vouchers involve the question o f control. Who is primarily responsible for State compulsory school attendance laws highlight the fact that education is tremendously important to individuals and to society. The answer from state co urts, which have interpreted their own constitutions and statutes, concludes that the state is concurrently responsible with parents for providing a basic public education for children. The state must ensure that children are minimally educated citizens an d parents have the right to direct the education of their children within the bounds of reasonable state control. 14 Id at 127. 15 Harv. Educ. Rev 355, 363, 1976.

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194 Historically, the U. parental control over the religious upbringing and educatio 16 In Meyer v. Nebraska the U. S. Supreme Court addressed the constitutional right and duty of 17 In Pierce v. Society of Sisters th e U. S. Supreme Court unanimously held that the Compulsory Education Act 18 requiring all children to attend public schools was unconstitutional. 19 The Court children 20 In Zelman v. Simmons Harris, the U. 21 The Court held that public funds in the form of a scholarship (voucher) could be used at religious schools as long as parents a nd not the state made the decision. Chief program of true private choice, consistent with Mueller Witters and Zobrest and thus 22 U. S. Supreme Co urt Establishment Clause Standards in Zelman Prior to Zelman the U. 16 Wisconsin v. Yoder 406 U.S. 205, 231 (1972). 17 262 U.S. 390, 400 (1923). 18 Ore. Gen. Laws, ch. 1, p.9 (1923). 19 268 U.S. 510, 534 35 (1925). 20 Pierce 268 U.S. at 535. 21 See Clive Bel TCRecord 2002. Available at http://www.tcrecord.org/PrintContent.asp?ContentID=10952 22 Zelman at 653.

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195 23 The early court cases fo cused on the content or nature of the aid provided, and simply inquired whether secular activities and education, as opposed to religious indoctrination, was being funded. In the 1970s and 1980s the Court moved away from this approach. The new focus was on whether the aid was secular and whether there was some potential or possibility of "advancing religion" or of creating the appearance of a government "endorsement" of religion. During this period, the three part Lemon test detailed the requirements for le gislation concerning aid to children in religious schools. 24 Starting in the late 1980s, the Court increasingly focused on the role of independent, private choice as a means of guaranteeing that the government does not "establish" a religion. In these cases the Court moved from examining the content of the aid program to evaluating the means by which the aid reaches religious schools. Recent decisions have upheld programs that provide benefits to individuals under secular neutral criteria, even if those ind ividuals then use those benefits to support or attend religious schools. The constitutional key has been the concept of independent, private choice. Some legal scholars even wondered whether the Lemon test was antiquated and should be abandoned in Establis hment Clause cases. 25 The question presented to the U. S. Supreme Court in Zelman was whether the Cleveland voucher program offended the Establishment Clause of the U. S. Constitution. 26 In order to ction between government programs 23 See ers Can Win In the Supreme Court Jewish Law Articles Available at http://www.jlaw.com/Articles/SchoolVouchers3.html#6.b (last visited Feb. 9, 2007). 24 Lemon v. Kurtzman 403 U.S. 602 (1971). 25 See Michael Stokes Paulsen. Lee v. Weisman 43 Case W. Rev. 795 (Spring, 1993). Paulsen contended that the Court in Weisman replaced the Lemon 26 Zelman, 536 U.S. at 649.

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196 that provide aid directly to religious schools, and programs of true private choice, in which government aid reaches religious schools only as a result of genuine and independent choices of 27 The Court single choice of a government, determine the distribution of aid, pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead 28 In Zelman Chief Justice Rehnquist distinguished public aid programs that provide assistance directly and indirectly to religious schools. He explained that over the past two decades U. S. Supreme Court jurisprudence h 29 Direct Aid to Religious Schools he U. S. Supreme Court generally ruled the Establishment Clause "absolutely prohibit[s] government financed or government sponsored indoctrination into the beliefs of a particular religious faith." 30 Following that reasoning, the Court has held that public aid to religious schools must be "secular, neutral, and nonideological..." 31 Routinely, the Court applied the tripartite test to determine whether an aid program violated the Establishment Clause. The three prongs were clearly defined in Lemon v. Kurtzman the statute must have a secular legislative purpose; second, its 27 Id 28 Id at 652 53 (quoting Mitchell 530 U.S. at 810 (plurality opinion)). 29 Zelman, 536 U.S. at 649. 30 See Grand Rapids School District v. Ball 473 U.S. 373, 385 (1985). 31 Committee for Public Education v. Nyquist 413 U.S. 756, 780 (19 73).

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197 32 Rarely has the secula r purpose prong of the Lemon test been an obstacle for public aid to religious schools, but the primary effect and entanglement prongs have proved to be problematic. At best, meeting the constitutional requirements of the second and third prongs was a diff icult balancing act. The possibility existed that when legislators met the requirement of one prong it may possibly cause the other prong to be violated. Direct aid statutes that benefited religious schools and were not limited to secular use have been fo religious mission, it has been found unconstitutional. However, a direct aid program, although limited to secular use, has often still been held unconstitutional on the excessive entanglement prong. The U. restriction interfered too much into the affairs of the religious schools. Chief Justice Rehnquist, dissenting in Wallace v. Jaffree wrote, schools to be closely watched lest it be put to sectarian use, yet this close supervision itself will cre 33 Shift in Establishment Clause Doctrine In the late 1990s, the Court became sharply divided on the utility and applicability of the tripartite test and changed the primary effect and entanglement tests. The change was first demonstra ted in Agostini v. Felton 34 when the Court held that providing compensatory 32 Lemon v. Kurtzman 403 U.S. 602, 612 13 (1971). 33 472 U.S. 38 (1985). 34 Agostini v. Felton 521 U.S. 203 (1997).

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198 instruction on the premises of religious schools by public school teachers was not in violation of the Establishment Clause, since the benefits were provided without regard to the sectarian nonsectarian, or public private, nature of the institutions. In Mitchell v. Helms 35 the constitutionality of a program providing aid to both public and religious schools in the form of educational equipment, including books and computers, was up held by the Court. These decisions expanded the definition of permissible government aid for religious schools under the Establishment Clause. Additionally, these decisions paved the way for the continuing shift that culminated in Zelman. Currently, the pr imary requirements are that the public aid itself be secular in nature, that it be distributed on a religiously neutral basis, that it not subsidize religious indoctrination, and that it not lead to excessive entanglement. 36 Indirect Aid to Religious Schoo ls Prior to Zelman, the significant distinguishing elements of indirect assistance programs held constitutional under the Establishment Clause have been that the purpose of the programs was not to provide aid to religious schools, that the initial recipien ts of the vouchers or other benefits were selected on a religiously neutral basis, and that a genuine choice for families existed as to the use of vouchers or other assistance at religious or secular schools. The Court has held unconstitutional government aid programs that selected initial beneficiaries on the basis of a religious criterion (i.e., enrollment in private, religious schools). In addition, if the universe of choices available to the beneficiaries was dominated by religious schools (primary effe ct of advancing religion), this, too, was found unconstitutional. Only if initial beneficiaries of a government aid program included public and private students, and if eligible families had a 35 120 S. Ct. 2530 (2000). 36 Agostini v. Felton 521 U.S. 203 (1997); Mitchell v. Helms 530 U.S. 793 (2000).

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199 genuine choice among religious and secular schools, has the Cou rt held the program to not have had an unconstitutional primary effect of advancing religion. The Court held this decision in spite of the fact that religious schools sometimes disproportionately benefited. 37 In Zelman the Court held the Cleveland voucher program constitutional even though most of the participating private schools were religious. In Zelman the majority of the Court considered the universe of choices available to voucher recipients to include private schools, public schools, charter schools and tutoring options. Applicable Judicial Decisions In Mueller v. Allen 38 the Court upheld a Minnesota tax deduction program for expenses incurred in providing tuition, textbooks, and transportation for students in public or private schools. The majority ruled that the program did not violate the Establishment Clause because all expenses. 39 40 41 The Court emphasized the principle of private choice, noting that public funds were made availabl e to religious schools 42 37 See Mitchell v. Helms s upra. 38 463 U.S. 388 (1983). 39 Id. at 397. 40 Id. at 397 399. 41 Id., at 399 (citing Widmar v. Vincent 42 Id at 399 400.

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200 The Court found it irrelevant to the constitutional inquiry that the vast majority of beneficiaries were parents of children in religious schools. 43 In Witters v. Washington Department of Services for the Blind 44 the Court unanimously upheld a vocational rehabilitation program which provided benefits directly to qualifying individuals regardless of the nature of the institution benefited. The use of public funds by a student who is blind at a Bible college does not violate the Establishment Clause. 45 In Zobrest v. Catalina Foothills School District 46 the Court applied the reasoning from decisions in Mueller and Witters to hold that the Establis hment Clause does not prevent a school district from furnishing a student with a sign language interpreter. The Court examined the intent of the Individuals with Disabilities Education Act (IDEA), 47 benefits neutrally to any 48 The Court found that parents select the school their children attend and therefore "a government paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." 49 Mos t 50 43 Id at 401. 44 474 U.S. 481 (1986). 45 Id at 489 90. 46 509 U. S. 1 (1993). 47 Id at 3; 20 U.S.C. §§ 1400 91 (2000). The Arizona counterpart of the IDEA is codified at Ariz. Rev. Stat. Ann. § 15 761 to 774 (West 2002). 48 Zobrest 509 U.S. at 10. 49 Id at 10 11. 50 Zelman 536 U.S. at 652. (referring to the Witters decision).

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201 Cleveland School Voucher Program Litigation The U. S. Supreme Court decision in Zelman v. Simmons Harris was based on a re view of litigation pertaining to the Cleveland Voucher Program. On June 30, 1995, the Ohio General Assembly enacted the Pilot Project Scholarship Program, 51 making Ohio the first state to pass a publicly funded private sc hool choice program that included religious schools. 52 The statewide program provided financial assistance to families in any Ohio school district that was or had ct 53 The Cleveland City School District was the only district that met the program requirement. The Cleveland Scholarship and Tutoring Program (CSTP) was designed to provide low income students in the critically low performing Cleveland City School District with a wider range of educational options. 54 In 1996, the Ohio voucher program was challenged in state court on state and federal grounds. In May 1999, the Ohio Supreme Court held that the voucher program violated a provisio n in the Ohio state constitution, Art. II, § 15D, that requires each bill to address only one subject but rejected the claim that the program violated the Establishment Clause in either the Ohio or the U. S. Constitution. 55 In June 1999, in response to the 56 51 Ohio Rev. Code Ann. § 3313.974 .979. 52 religious schools. 53 Ohio Rev. Code Ann. § 3313.975(A). 54 Zelman at 643 644. 55 Simmons Harris v. Goff 86 Ohio St. 3d 1, 8 9, 711 N.E. 2d 203, 211 (1999). 56 Zelman, 536 U.S. at 648.

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202 In July 1999, school voucher opponents filed suit in U. S. District Court se eking to enjoin the reenacted voucher legislation, claiming the Cleveland voucher program violated the Establishment Clause of the U. S. Constitution. In August 1999, the District Court issued a preliminary injunction barring further implementation of the program. 57 The U. S. Supreme Court stayed the preliminary injunction pending review by the Court of Appeals. 58 In December 1999, the District Court granted summary judgment, finding the Cleveland voucher program violated the Establishment Clause. 59 In Decembe r 2000, a divided panel, (2 1), of the Court of Appeals affirmed the judgment of the District Court, finding the Cleveland program had the 60 The Court of Appeals stayed its man date pending the U. S. Supreme Court decision. 61 The U. S. Supreme Court granted certiorari on September 25, 2001. 62 The U. S. Supreme Court upheld as constitutional the Ohio Pilot Scholarship Program which provides low income students in failing schools the opportunity to attend private, religious schools. 63 The program was found to have a secular purpose, to be neutral between religious and secular organizations, and to provide for genuine and independent choice between providers. In Zelman the key questio n before the U. S. Supreme Court was whether the Cleveland voucher program constituted indirect aid. To make this determination, the Court identified three 57 Simmons Harris v. Zelman 54 F. Supp. 2d 725 (N.D. Ohio 1999). 58 Simmons Harris v. Zelman 528 U.S. 983 (1999). 59 Simmons Harris v. Zelman 72 F. Supp. 2d 834 (N.D. 1999). 60 Simmons Harris v. Zelman 234 F.3d 945 (CA6 2000). 61 App. To Pet. For Cert. in No. 00 1779, 151 (May 23,2001). 62 533 U.S. 976 (2001). 63 Zelman v. Simmons Harris 536 U.S. 639 (2002).

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203 criteria present in earlier indirect aid cases. 64 First, as a threshold requirement, the program must 65 The Court was concerned with formal neutrality meaning that the classes of both participating schools and eligible students must be defined in nonreligious terms. In Zelman this criterion was satisfied becau se the Cleveland program was open to any private school in the district or any public school in the adjacent districts, and the only preferred students were those who came from lower income families. 66 Second, the majority determined whether the program pro 67 This criterion was originated in Mueller 68 to ensure formal neutrality does not, in fact, represent an unfair manipulation in favor of a particular religious group The Cleveland program met this criterion since it was open to all 69 The third criterion dealt with whether or not program recipients could direct the aid to schools of thei r own choosing. The Court determined that the Cleveland program made available to families and students a before, remain in public school with publicly funded tutoring aid, obtain a schola rship and choose a religious school, obtain a scholarship and choose a private nonreligious school, enroll in 70 64 Mueller v. Allen 463 U.S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind 474 U.S. 481 (1986); Zobrest v. Catalina Foothills School District 509 U. S. 1 (1993). 65 Zelman at 653. 66 Id. at 653. 67 Id. 68 463 U.S. 388, 397 (1983). 69 Zelman at 653. 70 Id at 655.

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20 4 Zelman v. Simmons Harris was hailed as a landmark case by voucher proponents 71 because the U. S Supreme Court clearly defined what is permissible under federal law. The Court made clear that a voucher program that includes a full range of educational choices may be found constitutional even if most of the private schools are religious. Chief Justic e Rehnquist 72 The lower federal courts in Zelman had held that the Cleveland voucher program did not provide parents a genuine choice between secular and religious schools. The majority decision was based on the key determination that enrollment in religious schools was the resu 73 The Court determined that the state had made available to families a range of s could reach different conclusions under different voucher programs or even under the Ohio program in the future. In both, Chief Justice being judged in its infan cy and litigation had impeded the development of the program. School Voucher Legislation after Zelman Prior to Zelman school voucher battles were contested at the federal and state level simultaneously, solely in state courts, and/or in the U. S. Congress and various state legislatures. After the Zelman decision, the voucher battles primarily shifted to state legislatures. 71 See Commonweal: A Review of Religion, Politics, and Culture August 16, 2002. Volume CXXIX, Number 14. Available at http://www.commonwealmagazine.org/print_format.php?id_art icle=552 (last visited Feb. 9, 2007). 72 Zelman at 658. 73 Zelman at 662.

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205 Before Zelman school voucher battles were contested on three legal fronts. The first arena involved courts at both the federal and sta te level where the question was asked whether voucher programs violate the Establishment Clause of the U. S. Constitution, thus prohibiting 74 The second arena consisted solely of state courts, whe re the question raised was whether voucher programs comply with state constitutions. The third arena involved the U.S Congress and the various state legislatures with whether voucher programs were sound public policy. 75 Before the U. deci sion in Zelman several states and lower federal courts reached conflicting decisions about the constitutionality of school voucher and voucher related programs. These decisions involved the Establishment Clause of the U. S. Constitution as well as questio ns of state constitutionality. 76 At the federal district court level, school vouchers were found to violate the Establishment Clause. 77 Three separate state supreme courts upheld the validity of school vouchers, or similar programs, in the face of Establishm ent Clause challenges. 78 The U. S. Zelman v. Simmons Harris removed the major federal constitutional 74 U. 75 Benjamin Dowling American School Board Journal J anuary 1999. The author Jackson v. Benson but his points continued to be relevant in terms of Zelman v. Simmons Harris 76 See Jackson v. Benson 578 N.W.2d 602 (Wis. 1998), cert. denied 525 U.S. 997 (1998); Bagley v. Raymond S ch. Dept ., 728 A.2d 127 (Me. 1999); Strout v. Albanese 178 F.3d 57 (1 st Cir. 1999); Chittenden Town School District v. Vermont Department of Education (97 275); 169 Vt. 310; 738 A.2d 539 (1999); Kotterman v. Killian 193 Ariz. 273, 972 P.2d 606 (Ariz. 199 9), cert. denied 528 U.S. 810 (1999); Simmons Harris v. Goff 711 N.E.2d 203, 211 (Ohio 1999). 77 See Simmons Harris v. Zelman 54 F. Supp. 2d 725, 730, 741 42 (N.D. Ohio 1999), stay granted 528 U.S. 983 (1999); Simmons Harris v. Zelman 72 F. Supp. 2d 83 4, 864 65 (N.D. 1999), 234 F.3d 945, 961 (6 th Cir. 2000), Nos. 00 3055, 3060, 3063, 2001 U.S. App. LEXIS 3344, at *1 (6 th Cir. Feb. 28, 2001); Miller v. Benson 878 F. Supp. 1209, 1216 (E.D. Wis. 1995), vacated as m oot 68 F.3d 163 (7 th Cir. 1995); Strout v. Albanese 178 F.3d 57, 64 (1 st Cir. 1999), cert denied 528 U.S. 931 (1999). 78 See Jackson v. Benson 578 N.W.2d 602, 620 (Wis. 1998); Simmons Harris v. Goff 711 N.E.2d 203, 211, 214 (Ohio 1999); Kotterman v. Ki llian 972 P.2d 606, 616 (Ariz. 1999), cert. denied 528 U.S. 810 (1999), and cert. denied 528 U.S. 921 (1999).

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206 obstacle to public aid for private religious schools. 79 With the support of President George W. Bush, Congress approved two feder ally funded voucher programs that allow the participation of private religious schools. 80 These programs are not subject to legal challenges because they were enacted within the standards set forth by the Court in Zelman After the definitive Zelman decisi on, the voucher battles primarily shifted to state legislatures where the constitutionality of school voucher and voucher related programs under the church state provisions of state constitutions are the important factors since many of these provisions are more restrictive than the Establishment Clause of the U. S. Constitution. If a voucher program is found unconstitutional consideration may be needed to ensure that there is no violation of the Free Exercise and/or the Equal Protection clauses of the U. S. Constitution. 81 Zelman outlined the guidelines for permissible school voucher programs in terms of the States by the constitution, nor prohibited by it to the st ates, are reserved to the states respectively, 82 This has been interpreted as granting power over education to the states. States have primary authority over public education. Every state constitution specifies, in varying degrees of deta il, the state's responsibility for providing an education to its citizens. Based on Zelman states face uncertainty about whether state constitutional provisions will permit voucher plans to include religious schools. 79 536 U.S. 639, 122 S.Ct. 2460 (2002). 80 See District of Columbia School Choice Incentive Act of 2003, Title III, of Division C of the Consoli dated Appropriations Act, 2004, 20 U.S.C. 6316 (Pub.L. 108 199, January 30, 2004, 118 Stat. 3 § 301 et seq. Available at http://www.ed.gov/programs/dcchoice/legislation.html ; Hurricane E ducation Recovery Act, Title IV, Subtitle A Elementary and Secondary Education Hurricane Relief (Robert T. Stafford Disaster Relief and Emergency Assistance Act), 42 U.S.C. 5170. Available at http://www.ed.gov/policy/elsec/guid/secletter/051230Bill.pdf 81 See Locke v. Davey 540 U.S. 712, 124 S.Ct. 1307 (2004); Wirzburger v. Galvin 412 F.3d 271 (C.A.1 Mass. 2005). 82 U.S. CONST. art. X.

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207 Legal challenges will now involve the interpretation of state constitutional restrictions pertaining to school vouchers. 83 thirds of the states have constitutional provisions that restrict aid to religious organizations more explicitly than does the Establishment 84 Thoug h the state restrictions vary in language, and therefore have varying interpretations, state constitutions may be grouped into categories. 85 The first category of schoo This type of provision excludes secular as well as religious private schools. The second category 86 This type restricts aid to religious schools but not to secular private schools. The third category pertains to 87 These provisions may permit aid to religious schools as long as the aid can be segregated from aid used for religious teaching. School voucher proponents are most concerned about the second category of provisions, known as the Blaine Amendment. A once obscure amendment enacted in many states during the 83 School Vouchers: Settled Questions, Continuing Disputes The Pew Forum on Religion and Public Life, Washington, D.C., A ug. 2002. Available at http://pewforum.org/issues/files/VoucherPackage.pdf 84 Id 85 Id 86 Id 87 Id at 8 9.

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208 late 1800s has recently come to the forefront within the sch ool voucher controversy. 88 In December 1875, Speaker of the House of Representatives James G. Blaine (R. ME) proposed, with the support of President Ulysses S. Grant, the following : No State shall make any law respecting an establishment of religion, or pro hibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect: nor shall any money raised or lands so devoted be divided among religious sects or denominations. 89 The Blaine Amendment to the U. S. Constitution would have prohibited states from using tax money or property raised for public schools to be used for religious s chools. Although the Blaine Amendment passed the House, it failed to pass the Senate, forcing supporters to concentrate on individual state constitutions, where they were much more successful. 90 The failed amendment became the model for state provisions. T erritories seeking to become states either 91 92 88 Joseph P. Viteritti. "School Choice and State Constitutional Law." In Learning from School Choice Paul E. Peterson and Bryan C. Hassel, eds. Wash ington, D.C., Brookings Institution Press, 1998. 409 27; L. Cohen and B.C. 2002. Available at http://www.ksg.harvard.edu/pepg/WNConfPapers.htm. 89 4 CO NG. REC. 205 (1875). 90 See CONST. COMMENT 651, 674 (2000); Joseph Harv. J.L. & 657 (199 8). 91 See, e.g., N.Y. CONST. Art. XI § 3 (adopted 1894); DEL. CONST. Art. X § 3 (adopted 1897); KY.CONST. § 189 (adopted 1891); MO. CONST. Art. IX § 8 (adopted 1875). 92 le over Blaine http://blaineamendments.org/scholarship/FedSocBlaineWP.html.pdf Treene states that at least six states were required to include a Bl aine Amendment. See e.g., Act of Feb. 22, 1889, 25 Stat. 676, ch. 180 (1889) (enabling legislation for South Dakota, North Dakota, Montana and Washington); Act of June 20, 1910, 36 Stat. 557 § 26 (1910) (enabling legislation for New Mexico and Arizona); Ac t of July 3, 1890, 26 Stat. L. 215 § 8, ch. 656 (1890) (enabling legislation for Idaho); S.D. CONST. art. VIII § 16: N.D. CONST. art. 8 § 5; MONT. CONST. art X § 6; WASH. CONST. art. IX § 4, art. I § 11; ARIZ. CONST. art. IX § 10; IDAHO CONST. art. X § 5.

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209 In State Constitutions and Sc hool Vouchers 93 nineteen states have the potential to uphold programs 94 and fourteen states are identified as having an uncertain orientation toward school voucher programs. 95 Restrictive provisions in state constitutions to voucher programs are but one determining factor. These provisions are subject to interpretatio n by state supreme courts. 96 The few decisions that have been decided have varied outcomes. The supreme courts in Wisconsin and Ohio focused on the use of public funds at religious schools, while in Florida the uniformity clause was the constitutional empha sis. The Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program (MPCP) despite restrictive constitutional provisions in the Wisconsin state constitution. 97 When considering the state establishment clause, the Wisconsin Supreme Court found the amended 93 The states thought to have a permissive orientation toward school voucher programs are as follows: Alabama, Arizona, Arkansas, Illinois, Maine, Maryland, Mississippi, Nebraska, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, West Virginia, and Wisconsin. See Frank Kemerer. 120 (2002): 38 40; Frank Kemerer. Teachers College, National Center for the Study of Privatization in Education, 2002. Available at http://www.ncspe.org/publications_files/538_OCCP51.pdf 94 The sixteen states that can be viewed as restrictive are as follows: Al aska, California, Delaware, Hawaii, Idaho, Kansas, Kentucky, Massachusetts, Michigan, Missouri, North Dakota, Oklahoma, South Dakota, Virginia, Washington, and Wyoming. Id 95 The fourteen states that have an uncertain orientation towards school voucher pro grams are as follows: Colorado, Connecticut, Florida (In 2002, A+ Opportuntity Scholarship Program litigation was still pending), Georgia, Indiana, Louisiana, Minnesota, Montana, Nevada, New Hampshire, New Mexico, Oregon, Tennessee, and Texas. Frank Kemere New York: Teachers College, National Center for the Study of Privatization in Education, 2002. Available at http://www.ncspe.org/publications_files/538_OCCP51. pdf 96 http://www.ncspe.org/publications _files/538_OCCP51.pdf 97 Jackson v. Benson 578 N.W.2d 602 (Wis.), cert. denied 119 S.Ct. 466 (1998).

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210 98 99 of the Wisconsin Constitution. The decision was appealed to the U. S. Supreme Court but the Court declined to review. In 1999, the Ohio Supreme Court held the Ohio Pil ot Project Scholarship Program did not violate the Establishment Clause. 100 The Ohio Supreme Court interpreted two relevant provisions in the Ohio state constitution and in terms of this case found them to be an approximate equivalent of the Establishment Cl ause of the First Amendment to the U. S. Constitution. The of worship, or maintain any form of worship, against his consent; and no preference shall be given 101 other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school 102 Additionally, the Ohio Supreme Court held th at the voucher program does not violate the 103 First, the court determined that the school voucher program was of a general nature. Secondly, the court determined the voucher program operates uniformly throughout the state since the statutory limitation was amended and does not prohibit similarly situated school districts from 98 easury for the benefit of religious societies, or religious or theological 99 100 Simmons Harris v. Goff 711 N.E.2d 203, 211 (Ohio 1999). 101 Ohio Const., art. I, § 7. 102 Ohio Const., art. VI, § 2 103 operation throughout th

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211 inclusion in the school voucher program in the future. 104 The current Ohio R.C. 3313.975(A) under federal court order requiring supervision and operational management of the district by the 105 In contrast, the Florida Supreme Co urt ruled that school vouchers violate the uniformity 106 The inference was that uniform, government run schools must be the only public education program adopted in Florida. Unless state restrictive provisions are found to violate the U. S. Constitution, state constitutional provisions will likely be a formidable obstacle between state aid and religious schools. At this time it seems unlikely that the U. S. Supreme Court would be willing to grant certiorari The justices hav e been mindful of the concept of federalism and do not want to intrude upon state authority. 107 A prime example was the U. S. Supreme Court decision in Witters v. Washington 108 The Court, after finding no violation of Establishment Clause remanded the case to 109 The Washington State 104 that, as of March 1995, was under a federal court order requiring supervision and operational management of the district by the sta 105 Ohio R. C. 3313.975(A) available at http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?=templates&fn=main h.htm&cp=PORC. 106 Bush v. Holmes, 919 So. 2d 392 (Fla. 2006). 107 New York: Teachers College, National Center for the Study of Privatization in Education, 2002. Available at http://www.ncspe.org/publications_files/538_OCCP51.pdf. 108 474 U.S. 481 (1986). 109 Witters at 489.

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212 Supreme Court found the program unconstitutional. 110 In a more recent decision, the U. S. Sup reme Court acknowledged the freedom of states to bar voucher programs under state anti establishment provisions. 111 from its scholarship aid program does not violate the Free Exercise Clauses. Th ese state rulings may deter legislatures from enacting voucher programs that permit religious school participation and thwart many school voucher proponents who hoped state provisions would no longer be a barrier to school choice. At the state level, schoo l voucher proponents have proceeded either by direct legislation or ballot initiative to create school voucher plans. 112 Direct legislation with the support of the state's governor and the legislature has been the most successful of the approaches. Of the ni ne state ballot initiatives attempted, not one has created a statewide voucher program. 113 Conclusion The U. S. Supreme Court in Zelman v. Simmons Harris held that the Establishment Clause permits Ohio to include religious schools in the Cleveland Scholarsh ip and Tutoring Program. 114 The decision is significant in that a longstanding debate had existed as to whether such a voucher program would survive a constitutional challenge under the Establishment Clause of the First Amendment to the U. S. Constitution. 110 Witt ers v. State Commission for the Blind 771 P.2d 1119 (Wash.) ( en banc ), cert. denied 493 U.S. 850 (1989). 111 Locke v. Davey 540 U.S. 712 (2004). 112 See https://www.a asa.org/edissues/content.cfm?ItemNumber=964 (last visited Feb. 14, 2007). 113 The two most recent statewide voucher referenda occurred in 2000 with California and Michigan voters defeating the measure. 114 536 U.S. 639, 122 S. CT. 2460 (2002).

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213 Following Zelman it seems clear that the Establishment Clause will permit voucher programs to include religious schools pursuant to certain criteria outlined in the Zelman opinion. The Zelman decision sets forth a specific standard for indirect aid, allow ing public funds to be 115 aid directly to religious schools, and pr ograms of true private choice, in which government aid reaches religious schools only as a result of genuine and independent choices of private 116 The U. S. Supreme Court held that school vouchers to religious schools are constitutional, but ha ve quite appropriately left policymakers the challenge of deciding whether vouchers are 117 State courts will reach different conclusions rspectives exist about the relationship between state and religion. The Zelman decision has been likened to the 1954 Brown v. Board of Education 118 for its implications for public schools. 119 It marks a shift in the voucher debates from being centered primari 115 Id at 662. 116 Id at 649. 117 See Richard W. Garnett. Yes to Vouchers: The Supreme Court Gets it Right. Commonweal Magazine. August 16, 2002. Volume CXXIX, Number 14. http://www.commonwealmagazine.org/article.php?id_article=552 118 347 U.S. 483, 74 S. Ct. 686 (1954). 119 Amy Stuart Wells. Reactions to the Supreme Court Ruling on Vouchers: Introduction to an Online Special Issue. http://www.tcrecord.org/Content.asp?ContentID=10949

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214 private and religious education will rest more squarely in the hands of the American public and 120 From an education policy viewpoint, the Brown decision is an example of the use of mandates as policy mechanism, whereas the Zelman decision is an example of incentives as policy mechanism. 121 Brown mandated desegregation while Zelman held that the use of vouchers as an incentive to expand the choices of parents is permissible. The decision to participate in a voucher program rests with the families and private schools, since neither is obligated to participate. e 122 Therefore, the likely consequences of Zelman hinge on the mix of incentives built into a particular voucher program by policymakers. 123 The following policy considerations are at the core of any voucher plan: Student eligibility for vouchers (i.e., will vouchers be available to eligible families even if their children are already enrolled in private schools?). Access (i.e., the number of private schools willing to accept vouchers). h to cover tuition at the school of a to make up the difference in public school dollars?). Equal opportunity (i.e., what will be the impact of vouchers on all students a nd all schools? How will that impact affect our society?). 120 Amy Stuart Wells. Reactions to the Supreme Court Ruling on Vouchers: Introduction to an Online S pecial Issue. http://www.tcrecord.org/Content.asp?ContentID=10949 121 Zelman Available at http://www.tcrecord.org/Content.asp?ContentID=10969. 122 Id. 123 Id.

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215 Private school accountability measures (i.e., will state standardized tests be required?). 124 social and economic opportunities, it is unrealistic to expect that schools alone, will be able to overcome serious disadvantages that affect the capacity of many children to gain full benefit 125 Schools are not the utopian cure all f social and economic problems. In turn, public school leaders must not shift their responsibility for failing schools to the American society as a whole and leave themselves blameless and impotent to find a solution to the problem. 126 Pub lic school districts will need to focus on improving the educational performance of their students by hiring better teachers, promoting best teaching practices, implementing effective pre school programs, and providing strong educational support services f or students and families, especially for students who are immigrants, minorities, or children living in poverty. 127 Implications The major implication of Zelman v. Simmons Harris as revealed by this research, goes beyond the constitutionality of school vou local control. The future of school vouchers now focuses for the most part on state constitutional 124 See Levin, H. (1998). Educational vouchers : Effectiveness, choice, and costs, Journal of Policy Analysis and Management, 17; Levin, H. (1990). The theory of choice applied to education. In W. Clune & J. Witte (Eds.), Choice and control in American education, Vol. III: The practice of choice, decen tralization, and school restructuring, pp. 285 318. New York: Falmer Press; Levin, H. & Driver, C. (1996). Estimating the costs of an educational voucher system. In William J. Fowler, Jr. (Ed.), Selected Papers in School Finance 1994, pp. 63 88. Washington DC: U. S. Department of Education, National Center for Educational Statistics. 125 Helen F. Ladd and Janet S. Hansen. Washington, D.C.: National Academy Press, 1999, 1 2. 126 K.B. Clark. 134 In When the Marching Stopped. New York: National Urban League, 1973. 127 See Superintendent

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216 battles. The Bush v. Holmes and Locke v. Davey decisions confirm that no aid provisions in state con stitutions, whether or not they are referred to as Blaine Amendments, are formidable obstacles to the implementation of voucher programs. The U. Zelman decision seems to resolve most of the federal questions concerning the constitutional ity of school voucher programs under the Establishment Clause. The Court shifts the constitutional issue back to the states, where state supreme courts will determine whether school vouchers violate state constitutions. 128 Voucher programs will now be examin ed in terms of the various state constitutions with respect to the effect of church state provisions of some state constitutions, and whether those state limitations are consistent with either the Free Exercise or Equal Protection Clauses of the U. S. Cons titution. 129 The decision did not determine whether vouchers make good policy in school districts across the nation. There continues to be room for vigorous debate over vouchers as public policy. Despite the fanfare surrounding Zelman most states have shown no desire, or states that have been interested have not been successful, in implementing school voucher proposals. State legislatures with similar education provisions in the state constitution were expected to mirror the language of the Ohio law, which w as narrowly focused on high poverty areas with failing schools. Policymakers need to keep in mind the unique circumstances that existed in Ohio. There was a state legislative determination and a federal court decision documenting the unsatisfactory educati onal conditions of the Cleveland Public Schools. There is, however, no certainty that a future U. S. Supreme Court, with a changed composition, will view Zelman similarly, or view it 128 See School Vouchers: Settled Questions, Continuing Disputes (The Pew Forum on Religion and Public Life, Washington, D.C.), Aug. 2002, Available at http://pewforum.org/issues/fil es/VoucherPackage.pdf (stating that in opening the Establishment Clause door for vouchers, Zelman also invites a new set of constitutional questions). 129 See Locke v. Davey 540 U.S. 712, 124 S.Ct. 1307 (2004); Wirzburger v. Galvin 412 F.3d 271 (C.A.1 Mass 2005).

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217 as controlling in the context of broader voucher programs instead of spec ific emergency cases such as existed in Cleveland. The interpretation by state supreme courts is as important as the wording of state opponents of school vouchers uncertain of the constitutionality of such schemes. The Cleveland restrictive constitutional provisions. Yet, the Ohio Supreme Court interpreted state provisions to be con sistent with the Establishment Clause of the First Amendment. Despite the Zelman v. Simmons Harris ruling making school vouchers constitutional, the controversial school choice option has been slow to spread. The constitutional challenges merely shifted from the U. S. Constitution to state constitutions. 130 Colorado, Florida, and Maine are three examples of recent constitutional rulings by state supreme courts. Colorado In April 2003, Colorado became the first state to enact a school voucher law after th e U. S. Supreme Court Zelman decision in June 2002. The Colorado Opportunity Contract Pilot Program 131 was drafted to directly incorporate the standards set forth by the U. S. Supreme Court in Zelman 132 Opponents of the voucher program filed suit claiming ei ght state constitutional violations. 133 The trial court held that the program was constitutional in terms of prohibition against special legislation, unconstitutional in terms of the local control requirement, and ruled 130 See Owens v. Colorado Cong. Of Parents 92 P.3d 933 (Colo. 2004); Bush v. Holmes 919 So. 2d 392 (Fla. 2006). 131 Colo. Rev. Stat. §§ 22 56 101, et.seq. (2003). 132 Id at § 22 56 101(2)( c ) (2003). 133 See Owens v. Colo. Congress of Parents, Teach ers, and Students, No. 03CV3734, unreported, at 4 5 (2003).

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218 the other six arguments as moot. 134 In D ecember 2003, the Denver District Court enjoined the implementation of the program. IX, section 15 of the Colorado Constitution. 135 The court concluded the voucher program to be unconstitutional since the program required districts to pay local tax revenues to parents participating in the program. 136 The court did note that the state could im plement an education program without local control but the state must pay for such programs entirely from the state controlled Public School Fund. 137 structure, it must either seek t o amend the constitution or enact legislation that satisfies the 138 The court outlined how to implement a revised program to meet the local control constitutional issue. However, it is likely that if the state should a ttempt to reenact a voucher program the other constitutional issues raised at trial court would be re raised also. Florida In August 2002, after the Zelman decision, a Leon County Circuit Court judge ruled constitutional prohibition against direct or indirect public funding of a religious institution, 134 Id. at 15. 135 Owens v. Colorado Congress of Parents, Teachers, and Students, 92 P.3d 933, 3 (Colo. 2004). 136 Id., citing Colo. Rev. Stat. §§ 22 56 108(3) and (4)(a) (2003). 137 Id., citing Craig v People ex rel. Hazzard, 89 Colo. 139, 148, 299 P. 1064, 1067 (1931). 138 Owens, at 6.

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219 139 The state appealed the ruling to the First District Court of Appeals. The decision w as stayed but the program was allowed to continue during appeal. In 1 decision. 140 The state mov ed for a rehearing of the case by the full appellate court. In November 2004, the full First District Court of Appeal in an 8 5 1 decision held that the 141 The cou rt concluded that the Florida Constitution is more restrictive than the Establishment Clause in the U. S. Constitution. 142 Therefore, even if the Florida voucher program were constitutional under the Establishment Clause as interpreted in Zelman, it conflict s with Florida c onstitution al ban against using public money to aid religious institution. 143 The court reviewed greater restrictions than the Establi shment Clause. 144 program with a worthy purpose" 145 139 Holmes v. Bush, No. CV99 3370, 2002 WL 1809079 (Fla. Cir. Ct. Aug. 5, 2002). 140 Bush v. Holmes 29 Fla. L. Weekly D1877 (Fla. 1 st DCA Aug. 16, 2004). 141 Bush v. Holmes 8 86 So. 2d 340 (Fla. 1 st DCA 2004) (Holmes II). 142 Id., at 346 47 and footnotes 7 and 8 at 67 these 143 Id. 144 Id., at 349 10. 145 Id.

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220 146 In conclusion, Ju dge William Van Nortwick, no aid provision, they can do so by constitutional amendment." 147 As required by law, the court certified the constitutional ques tion for further review by the Florida Supreme Court as one 148 The state appealed to the Florida Supreme Court. On June 7, 2005, the court heard oral arguments on the constitutionality. On January 5, 2006, t he Florida Supreme Court held the Opportunity Scholarship Program (OSP) violates the language under Article IX of the Florida 149 Maine In Eulitt v. Maine Dept. of Educ. 150 the First Circuit Court of Appeals reje cted an Equal Protection challenge to a Maine voucher program that specifically excluded sectarian schools from participation. The appellate court held that "state entities, in choosing how to provide education, may act upon their legitimate concerns about excessive entanglement with religion, even though the Establishment Clause may not require them to do so." 151 Additionally, "states are not required to go to the brink of what the Establishment Clause permits," 152 and "it would be illogical to impose upon gov ernment entities a presumption of hostility whenever they take into 146 Id 147 Id. 148 Holmes II, 886 So. 2d at 344. 149 Bush v. Holmes, 919 So. 2d 392 (Fla. 2006) (Holmes III). 150 386 F.3d 344 (1 st Cir. 2004). 151 Id at 355. 152 Id

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221 account plausible entanglement concerns in making decisions in areas that fall within the figurative space between the Religion Clauses." 153 The apparent effects of the Zelman decision seem to align with the political climate that has existed since the late 1990s. This landmark decision, supported by free market principles, brings school voucher issues to the doorstep of each state. Now, each state has the opportunity to address the needs of its own failing public schools. The inherent appeal of school vouchers is the promise to improve educational options and performance for low income students. Whether vouchers can achieve these goals depends on the design and implementation of the specific voucher plan. 154 One point is certain: school vouchers will continue to be a topic of public debate over the next few years as states wrestle with ways to improve education for all students. Recommendations for Further Research Zelman does not change the lik elihood that the majority of students will continue to be educated in conventional public schools. For the most part, middle class families are satisfied with their public schools. 155 A major concern still remains in regards to the grave inequalities that ex ist between public schools and the unfairness of the facilities and resources of public schools that serve poor children. 156 One reform tool to address the dire needs of low income students is targeted choice programs. 157 The competitive capacity of voucher sc hools is limited 153 Id 154 See Isabel V. Sawhill and Shannon L. Smith. August 5, 1998. Vouchers for Elementary and Secondary Education. Retrieved August 12, 2003, from http://www.brookings.edu/dybdocroot/views/papers/bdp/bdp004/bdp004.pdf 155 See Lowell C. Rose and Alec M. Gallup, The 36 th Toward the Public Schools, Ph i Delta Kappan, Sept. 2004, at 41, 42. Available at http://pdkintl.org/kappan/k0409pol.htm. The poll found that 61 percent of parents give the schools in their community an A or a B. 156 Jonathan Kozol. New York, NY: Crown Publishers, 1991. 157 See John E. Coons and Stephen D. Sugarman. Education by Choice: The Case for Family Control Berkeley, CA:

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222 by the legislative design of the reform measures. The existing voucher programs are small initiatives designed to provide more educational options to students in low performing schools. For example, the District of Columbia offers private school scholarships to approximately 1,700 students, 158 provides vouchers for close to 15,000 students. 159 Most voucher programs are funded at a lower level than the per pupil amo unt received by local school districts. The low funding levels do not encourage the opening of new schools or the expansion of existing private schools. 160 Further study in the following areas may augment the understanding of the application and implementat ion of school vouchers. Investigate whether states with constitutional provisions that explicitly prohibit direct and indirect funding of religious instruction, could exclude, consistent with the Free Exercise Clause of the First Amendment or the Equal Pr otection Clause of the Fourteenth Amendment, religious schools otherwise eligible to participate in a voucher program. Analyze state constitutional principles that courts apply concerning public aid to religious schools. Investigate whether the federal No Child Left Behind Act 161 should be revised to enable more low income students to attend academically successful middle class public schools. 162 Examine how school voucher programs influence issues, such as local financing, facing public school systems. Th omas James and Henry M. Levin, eds. Public Dollars for Private Schools: The Case for Tuition Tax Credits Philadelphia, PA: Temple University 158 Washington, 1983.n Post April 16, 2005, p. B2. 159 A. J. Milwaukee Sentinel March 10, 2005, 1. 160 Frederick M. Hess. 2002, p. 46. Revolution at the Margins: the impact of competition on urban school systems. Washington, D.C.: The Brookings Institution. 161 No Child Left Beh ind Act of 2001, Pub. L. No. 107 110, § 501, 115 Stat. 1425 (codified as amended at 20 U.S.C. §§ 7201 7283g (2002)). Available at http://www.whitehouse.gov/news/reports/no ch ild left behind.html 162 Foundation, June 2006. Online brief is available at http://www.tcf.org/Publications/Education/kahlenbergsoa6 15 06.pdf

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223 Investi gate the possibility of school choice for students in small rural school districts.

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224 224 APPENDIX CITED CONSTITUTIONS, STATUTES, REGULATION S, AND CASES United States U. S. Constitution A rt icle I § 8 cl.1 Art icle III Amend ment I Establishment Clause Free Exercise Clause Free Speech Clause Amend ment XIV Equal Protection Clause Statutes Bilingual Education Act of 1968, 20 U.S.C. § 7401 (Pub. L. 90 247). Chapter 2 of the Education Consol idation and Improvement Act of 1981, 20 U.S.C. Sec. 3801 et seq (Pub. L. 97 35, Aug. 13, 1981, 95 Stat. 469). Child Care and Development Block Grant Act of 1990, 42 U.S.C. 9801 et seq. (Pub. L. 104 193, title VI, Aug. 22, 1996, 110 Stat. 2278). Civi l Rights Act of 1964, 42 U.S.C. 2000a et seq. (Pub. L.88 352, July 2, 1964, 78 Stat. 241). Civil Rights Act of 1875, 18 Stat. 335 (Act of Mar. 1, 1875). Civil Rights Act of 1866, 42 U.S.C. §1981 (April 9, 1866, ch.31, 14 Stat. 27 30) Department of Edu cation Organization Act of 1979, 20 U.S.C. 3401 et seq (Pub. L. 96 88, Oct. 17, 1979, 93 Stat. 668). District of Columbia School Choice Incentive Act of 2003, Title III, of Division C of the Consolidated Appropriations Act, 2004, 20 U.S.C. 6316 (Pub.L. 108 199, January 30, 2004, 118 Stat. 3 et seq. Available at http://www.ed.gov/programs/dcchoice/legislation.html Economic Opportunity Act of 1964, 42 U.S.C. 2701 et seq. (Pub. L. 88 452, Aug. 20, 1964, 78 Stat. 508). Education Consolidation and Impro vement Act of 1981, 20 U.S.C. Sec. 3801 et seq (Pub. L. 97 35, title V, subtitle D (§5551 et seq.), Aug. 13, 1981, 95 Stat. 463).

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225 225 Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1400 et seq (Pub. L. 94 192, Nov. 29, 1975, 89 Stat. 773. Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq. (Pub. L. 89 10, Apr. 11, 1965, 79 Stat. 27). Fair Housing Act of 1968, 42 U.S.C. 3601 et seq. (Pub. L. 90 284, title VIII, Apr. 11, 1968, 82 Stat. 81). Family Education Rights to Privacy Act, 20 U.S.C. § 1232g. Food Stamp Act of 1977, 7 U.S.C. 2011 et seq. (Pub. L. 88 525, Aug. 31, 1964, 78 Stat. 703). Goals 2000: Educate America Act, 20 U.S.C. 5801 et seq. (Pub. L. 103 227, Mar. 31, 1994, 108 Stat. 125 191, 200 211, 265 280). Head Start Act, 42 U.S.C. 9831 et seq. (Pub. L. 97 35, title VI, subtitle A, ch. 8, subch. B(§635 et seq.), Aug. 13, 1981, 95 Stat. 499). Housing Act of 1937, 42 U.S.C. §§ 1437 et seq. (Sept. 1, 1937, ch. 896, 50 Stat. 888). Hurricane Education Recovery Act, Title IV, Subtitle A Elementary and Secondary Education Hurricane Relief (Robert T. Stafford Disaster Relief and Emergency Assistance Act), 42 U.S.C. 5170. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. Morrill Ac t, 7 U.S.C. §§ 301 et seq (July 2, 1862, ch. 130, 12 Stat. 503). National Defense Act of 1958, 20 U.S.C. 401 et seq (Pub. L. 85 864, Sept. 2, 1958, 72 Stat. 1580). National Labor Relations Act, 29 U.S.C. §§ 151 169. No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq (Pub. L. 107 110, Jan. 8, 2002, 115 Stat. 1425). Northwest Ordinance, July 13, 1787, 1 Stat. 51 (1787). (National Archives Microfilm Publication M332, roll 9); Miscellaneous Papers of the Continental Congress, 1774 1789; Reco rds of the Continental and Confederation Congresses and the Constitutional Convention, 1774 1789, Record Group 360; National Archives. Available at http://ourdocuments.gov/doc.php?flash=false&doc=8#. Personal Responsibility and Work Opportunity Reconcilia tion Act of 1996, 42 USC 1305 et seq. (Pub. L. 104 193, Aug. 22, 1996, 110 Stat. 2105).

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226 226 Temporary Assistance for Needy Families, 42 U.S.C. § 601 et seq (Pub. L. 104 193). Title I of the Elementary and Secondary Education Act of 1965 20 U.S.C. 6301 et seq (Pub. L. No. 89 10, title I, § 1001). Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c (Pub. L. 88 352, July 2, 1964, 78 Stat. 241). Title VII of the Elementary and Secondary Education Act of 1965, 20 U.S.C. 7424. Title IX, Education Amendments of 1972, 20 U.S.C. 1681, 34 CFR, Part 106. Voting Rights Act of 1965, 42 U.S.C. 1971, 1973 et seq. (Pub. L. 89 110, Aug.6, 1965, 79 Stat. 437). Cases Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d. 844 (1963). Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1977, 138 L. Ed. 2d 391 (1997). Aguilar v. Felton, 473 U.S. 402, 105 S.Ct.3232, 87 L.Ed. 2d 290 (1985). Andrews v. Vermont Department of Education, 120 S.Ct. 626 (1999). Ashwander v. Tennessee Valley Author ity, 297 U.S. 288, 56 S.Ct. 466 (1936). Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873 (1954). Board of Educatio n of the Westside Community School v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). Bowen v. Kendrick 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d. 520 (1988). Cantwell v. Connecticut, 310 U.S. 296 (1940). Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Cochran v. Louisiana State Board of Education, 281 U.S. 270 (1930). Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d. 948 (1973).

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227 227 Committee for Public Educa tion and Religious Liberty ("PEARL") v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980). Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261 (1962). Everson v. Board of Education of Ewing Township, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed.2d. 711 (1947). Green v. County School Board of New Kent County, VA et al, 391 U.S. 430, 88 S. Ct. 1689, 20 L.Ed.2d 716 (1968). Griffin v. County School Board of Prince Edward County, 377 US 218, 84 S. Ct. 1226, 12 L.Ed.2d 256 (1964). Good News Club v. Milford Cen tral School 533 U.S. 98 (2001), 202 F.3d. 502, reversed and remanded. 2141, 124 L.Ed.2d. (1993). Lau v. Nichols, 414 U.S. 563 (1974). Lee v. Weisman, 505 U.S. 577 (1992). Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 30 L.Ed.2d. 123 (1971). Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d. 736 (1973). Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307 (2004), 2 99 F. 3d 748, reversed. Lynch v. Donnelly 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d. 604 (1984). McCulloch v. Maryland, 17 U.S. 316 (1819). McDaniel v. Paty, 435 US 618 (1978). McDonald v. School Bd. Of Yankton Indep. Sch. Dist. 246 N.W.2d 113, 117 (S .D. 1985). Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d. 217 (1975). Meyer v. Nebraska, 262 U.S. 390 (1923). Mitchell v. Helms, 530 U.S. 793 (2000).

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228 228 Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d. 721 (1983). Pierce v. Soci ety of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Plessy v. Ferguson, 163 U.S. 537 (1896). Reynolds v. United States, 98 U.S. 145 (1878). Roemer v. Maryland Public Works Bd. 426 U.S. 736, 9 6 S.Ct. 2337, 49 L.Ed.2d. 179 (1976). Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d. 700 (1995). School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 358 (198 5). School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d. 267 (1985). Sloan v. Lemon, 413 U.S. 825, 93 S. Ct. 2982, 38 L.Ed.2d. 128 (1973). Tilton v. Richardson 403 U.S. 672, 91 S. Ct. 2091, 29 L.Ed.2d. 790 (19 71). Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L.Ed.2d. 26 (1985). Walz v. Tax Commission of the City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d. 697 (1970). Widmar v. Vincent 454 U.S. 263 (1981). Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986). Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d. 714 (1977). Zelman v. Simmons Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed. 2d 604 (2002). Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d. 1 (1993). A rizona Ariz ona Const itution Art icle II, § 12 See § 22 Art icle IX, § 7 See § 23

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229 229 A rizona R evised S tatute § 43 1089 Cases Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (Ariz. 1999), cert. denied 528 U.S. 810 (1999). California Statutes California Cons titution Article IX, § 8 Cal ifornia Const itution Article XVI, § 5 Cal ifornia Educ ation § 60044 Cases California Teachers Association v. Riles 176 Cal.Rptr. 300, 29 Cal.3d 794, 632 P.2d 953 (Cal. 1981). Serrano v. Priest, 487 P. 2d 1241 (Cal. 1971). Serrano v. Priest 226 Cal.Rptr. 584 (Cal. App. 1986) (Serrano III). Colorado Statutes Colo. Const itution A rt icle IX, § 7 Colo rado Rev ised Stat ute §§ 22 56 101, et.seq. (2003). § 22 56 101(2)( c ) (2003). § 22 56 103(10)(a)(I) (2003) § 22 56 104(1)(b)(2 003) § § 22 56 104(2)(a),(b). §§ 22 56 104(5)(a)(I) (IV) § 22 56 106 (2003) §§ 22 56 106(b) and (c)(2003) Cases Craig v. People ex rel. Hazzard, 89 Colo. 139, 148, 299 P. 1064, 1067 (1931).

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230 230 Owens v. Colorado Cong. Of Parents, Teachers, and Students, 92 P. 3d 933 (Colo. 2004). Owens v. Colo. Congress of Parents, Teachers, and Students, No. 03CV3734, unreported, (Colo. 2003). District of Columbia Statutes DC School Choice Incentive Act of 2003, Pub. L. No. 108 199 of 2003, Title III, Sec. 302(4) [January 30, 2004] Cases Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C.1972). Florida Fl orida Cons titution A rt icle I, § 3 Art icle IX, § 1 Art icle IX, § 6 Fl orida Stat ute Ann otated § 220. 187 § 229.0537 (1999) § 229.0537 (1) § 240. 402 § 1002.38 (2005) § 1002.38(3)(b) (2004) § 1002.38(4) (2004) § 1002.38(4) (2004) § 1002.38(4)(e) (2004) § 1002.38(4)(J) § 1002.39 (John M. McKay Prog ram for Students with Disabilities) § 1002.39(4) (2004) § 1002.39(4) (2004) § 1002.39(4)(e) (2004) § 1002.51 1002.79 (2004) § 1008.33 (2005) § 1008.34 (2005)

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231 231 Cases: Bush v. Holmes, 919 So. 2d 392 (Fla. 2006) (Holmes III). Bush v. Holmes, 886 So. 2d 340 (Fla. 1 st DCA 2004) (Holmes II) Bush v. Holmes, 29 Fla. L. Weekly D1877 (Fla. 1 st DCA Aug. 16, 2004). Holmes v. Bush, No. CV99 3370, 2002 WL 1809079 (Fla. Cir. Ct. Aug. 5, 2002). Holmes v. Bush, 790 So. 2d 1104 (Fla. 2001). Bush v. Holmes 767 So. 2d 668 (Fla. Dist. Ct. App. 2000). (Holmes I) Holmes v. Bush, 2000 WL 527694 (Fla. Cir. Ct .) Idaho Epeldi v. Engelking 488 P.2d 860 (Idaho 1971), cert. denied 406 U.S. 957 (1972). Illinois 35 ILCS 5/201 (m) (Education expense credit) Toney v. Bower Iowa § 422.12(2) (Deductions from c omputed tax) Maine Statutes Maine Revised Statute Annotated Title 20, §§ 2951(2), 5204(4). See §§ 14 18 Maine Revised Statute Annotated Title 20 A 117 § 2951. Maine Revised Statute Annotated Title 20 A 219 § 5804. Maine Revised Sta tute Annotated Title 20 A 219 § 5806. M aine Rev ised Stat ute Ann otated Tit le 20 A, § 5810(2) (West 2002).

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232 232 Cases: Bagley v. Raymond School Dept., 728 A.2d 127 (Me. 1999), cert. denied 528 U.S. 947 (1999). Eulitt v. Maine Dept. of Ed., 386 F.3d 344 ( 1 st Cir. 2004). Strout v. Albanese 178 F.3d 57 (1 st Cir. 1999), cert denied 528 U.S. 931 (1999). Massachusetts Mass achusetts Cons titution Amend ment Article XVIII § 2. Amendment Article 48 Cases Boyette v. Galvin, 311 F. Supp. 2d 237 (D. Mass. 2004). Wirzburger v. Galvin, 412 F.3d 271 (C.A.1 Mass. 2005). Michigan Mich igan Cons titution Article 1, § 4 Article 8 § 2 Minnesota Minnesota Const itution Article 1, § 16 Article 13, § 2 Minn esota Stat ute § 290.0674 (2005). § 290.09, subd. 22 (1982). N orth Carolina Hobbs v. County of Moore, 267 N.C. 665, 149 S.E.2d 1 (1966).

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233 233 Ohio Ohio C onst itution Art icle I, § 7 Article II Article II § 15(D ) Article II, § 26 Article VI, § 2 Ohio Rev ised Code Ann otated (Anderson): §§ 3313.974 3313.979 (1999 & Supp. 2000) § 3313.975(A) (1999 & Supp. 2000) § 3313.975(B) (199 9 & Supp. 2000) § 3313.975(C) (1) (1999 & Supp. 2000) § 3313.976 § 3313.976(A) (1) § 3313.976(A) (3) § 3313.976(A) (4) § 3313.976(A) (6) § 3313.976(A) (8) § 3313.976(C) § 3313.977(A) § 3313.978(A) § 3313.978(B) § 3313.978(C)(1) § 3313.978(C)(3) § 3313.979 § 3317.03(I)(1) Cases Kosydar v. Wolman, 353 F. Supp. 744 (ap plying Ohio law) -§§ 20[b] 21 Reed v. Rhodes, 179 F.3d 453 (6 th Cir. 1999). Simmons Harris v. Zelman, 234 F.3d 945 (6 th Cir. 2000), 536 U.S. 639 (2002). Simmons Harris v. Goff, 684 N.E.2d 705 (Ohio App. 1997). Simmons Harris v. Goff 86 Ohio St.3d 1, 711 N.E.2d 203 (Ohio 1999). Simmons Harris v. Zelman 54 F. Supp. 2d 725, (N.D. Ohio 1999), stay granted 528 U.S. 983 (1999). Simmons Harris v. Zelman 72 F. Supp. 2d 834 (N.D. 1999), 234 F.3d 9 45 (CA6 2000), Nos. 00 3055, 3060, 3063, 2001 U.S. App. LEXIS 3344, at *1 (6 th Cir. Feb. 28, 2001).

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234 234 Gatton v. Goff, Nos. 96 CVH 01 198, 96 CVH 01 721, 1996 WL 466 499 (Ohio Com.Pl., Franklin Cnty. St July 31, 1996). Pen nsylvania Pennsylvania Constitution Art icle I Sec. 3 Pennsylvania Stat ute Ann otated 24 P.S. § 20 2001 (A). 24 P.S. § 20 2003 (A) (1). 24 P.S. § 20 2003 (B) (C) (1 3). 24 P.S § 20 2005 B 24 P.S § 20 2006 B 24 P.S § 20 2007 B Cases Pennsylvania Associati on for Retarded Children v. Commonwealth of Pennsylvania, 334 F.Supp. 1257 (E.D.Pa. 1071). Vermont Statutes V ermont Const itution Chapter I., art icle 3 See §§ 4 6[b] Vermont Statute Annotated Title 16, § 822(a)(1) See § 3[a] Vermont Statute Annotated Title 16, §§ 822(a)(1) 824 See § 4 Vermont Statute Annotated Title 16, §§ 822 824 See § 6[b] V ermont Stat ute Ann otated Tit le 16, Part 2, Cha pter 21, § 822 Cases Swart v. South Burlington Sch. Dist 122 Vt. 177, 167 A.2d 514 (1961). Campbell v. Manchester Board of School Directors, 161 Vt. 441, 641 A.2d 352 (Vt. 1994). Chittenden Town School Dist. v. Department of Educ., 738 A.2d 539 (Vermont 1999). 8

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235 235 Chittenden Town School District v. Vermont Department of Education (97 2 75); 169 Vt. 310; 738 A.2d 539 (1999). Virginia V irginia Const itution Article IX, § 140 (1902). V irginia Code §§ 22 251 to 22 275. Acts, 1959 Ex. Sess., c.53. Washington W ash ington Constitution Art icle 1, § 11 Wash ington Rev ised Code (2002): § 28B.10.8 14 § 28B.119.005 § 28B.119.010(1)(b) § 28B.119.010(8) § 28B.92.100 (2004) Cases Davey v. Locke 299 F.3d 748 (9 th Cir. 2002), cert. granted 123 S. Ct. 2075 (2003), rev. 124 S. Ct. 1307 (2004). 771 P.2d 1119 (Wash.) ( en banc ), cert denied 493 U.S. 850 (1989). Wisconsin Wis consin Cons titution Art. I, § 1 Art. I, § 18 Art. IV, § 18 Art. X, § 3 Wis consin Act 27, §§ 4002 4009 Wis consin Stat ute § 11 9.23 § 119.23(2)(a)

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236 236 § 119.23(2)(a) (1) § 119.23(2)(a)(2) § 119.23 (7)(c) § 119.23 See §§ 3[a] 5 6[a ] 10 12[a] 13 § 1 19.23 See §§ 8 15 16 Cases Davis v. Grover, 166 Wis.2d 501, 480 N.W.2d 460 (1992). Jackson v. Benson 218 Wis.2d 835, 578 N.W.2d 602 (Wis. 1998), cert. denied 119 S. Ct. 466, 525 U.S. 9 97 (1998). Miller v. Benson 878 F. Supp. 1209 (E.D. Wis. 1995), vacated as moot 68 F.3d 163 (7 th Cir. 1995). State ex rel. Thompson v. Jackson, 199 Wis. 2d 714, 720, 546 N.W.2d 140 (1996) (per curiam).

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237 LIST OF REFERENCES Alexander, Kern and M. David Alexander. American Public School Law 3 rd ed. St. Paul, MN:West Publishing Company, 1992. On Principle (199 8). Vol. 6, No. 1 New York Times June 15, 2001. Retrieved October 1, 2002 from http://www.nytimes.com/200 1/06/15/politics/15EDUC.html _____ New York Times, May 3, 2001. Retrieved October 1, 2002 from http://www.nytimes.com/2001/05/03/politics/03EDUC.html Arlington, VA: American Association of School Administrators 2005. Available at http://www.aasa.org/edissues/content.cfm?ItemNumber=964 Anti Washingt on, DC: Anti Defamation League 2005. Available at http://adl.org/vouchers/vouchers_constit_suspect.asp Archer, Glenn L. "Parochiaid? No!" Educational Leadership, November 1971, 105 107. al for Diversity Teachers College Record February 1971, 72: 327 335. Ascher, Carol, Norm Fruchter, and Robert Beme, Hard Lessons New York: Twentieth Century Fund Press, 1996. February 20, 2002. Available at http://www.cleveland.com/education/index.ssf?/xml/story.ssf/html_standard.xsl?/base/ne ws/10142010988040272.xml Barber, Benjamin, "America Skips School," Harper's Magazine, November 1993. Barker, Pierce, Tora K. Bikson, Jackie Kimbrough, and Carol Frost. A Study in Alternatives in American Education, Vol. V, Diversity in the Classroom Santa Monica, CA: Rand Corporation, 1981. uchers in New York, NY: TCRecord, 2002. Available at: http://www.tcrecord.org/PrintContent.asp?ContentID=10952

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238 Berliner, David and Benjamin J. Biddle. The Manufactured Crisis: Myths, Fraud, and the Attack Reading, MA: Addison Wesley, 1995. National Research Council, Equity and Adequacy in Education Finance 7 24 (1999). Bierlein, Loua nn A. Controversial Issues in Educational Policy. Newbury Park, CA: Sage Publications, 1993. Biskupic, Joan, and Tamara Henry. "Church, State Wall Is Lowered in Schools." USA Today (June 28, 2002). Black, Henry Campbell. 8 th ed St. Paul, MN: West Pub. Co., 2004. The Bluebook: A Uniform System of Citation (17 th ed. Cambridge, MA: Harvard Law Review Association, 2000. Washington, DC: CATO Institute, August 10, 2002 Ava ilable at http://www.cato.org/current/school choice/pubs/bolick 020627.html Borman, Geoffrey D., Robert E. Slavin, Alan Cheung, Anne Chamberlain, Nancy Madden, and Year Outc 696. (April, 2005). Available at http://www.successforall.org/_images/pdfs/SFA_RE_Year2_Outcomes.doc American Prospect vol. 37 (March April 1998). Brand Learning from School Choice Washington, DC: Brookings Institution Press, 1998, 55 81. Brighouse, Harry. School Choice and Social Justice. New York: Oxford University Press, 2000. Brouillette, Matthew J., The Case for Choice in Schooling: Restoring Parental Control of Education ; Midland, MI.: Mackinac Center for Public Policy, 2001. Burtless, Gary, ed. Does Money Matter? The Effect of School Resources on Student Achievement and Adult Success. Washi ngton, DC: Brookings Institution Press, 1996. Capell, F. J. and L. Dosher, A Study of Alternatives in American Education: Vol. VI, Student Outcomes at Alum Rock 1974 1976 Santa Monica, CA: RAND, 1981.

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239 Texas Education Review Winter 2003 04, available at http://www.educationreview.homestead.com/2003ReaganEducation.html Chamey, Mich Rethinking Schools Online. Volume 16, No. 2 Winter 2001/2002, available at http://www.rethinkingschools.org/special_reports/voucher_report/v_high162.shtml. hial Schools 75 Cal. L. Rev. 5, 1987. Setting National Priorities: Policy for the Nineties edited by Henry J. Aaron, 213 48. Washington, D.C.: Brookings, 1990. Chub b, John E. and Terry M. Moe. Washington, D.C.: Brookings Institution, 1990. Clinton, William Jefferson. Between Hope and History : 21 st Century New York: Random House, 19 96. _____ The American Presidency Project Santa Barbara, CA: University of California. Available at http://www.presidency.ucsb.edu/ws/index.php?pid=53358. CNN Time, All Politics: The State of the Union, 1997. Atlanta: Time Warner Company. Available at http://www.cnn.com/ALLPOLITICS/1996/resources/sotu/transcripts/index5.html Cambridge, MA: Harvard University, 2002. http://www.ksg.harvard.edu/pepg/WNConfPapers.htm Cohn, Elchanan, The Economics of Education Cambridge, Mass.: Ballinger Publishing Company, 1979. Harv. Educ. Rev. 7 (1968). _____ Phi Delta Kappan April 1985: 527 532. _____ The Public Interest No. 64 (Su mmer 1981). Coleman, James S., Thomas Hoffer, and Sally Kilgore. High School Achievement: Public, Catholic, Private Schools Compared New York, NY: Basic Books, 1982.

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240 Coleman, James S., Ernest Q. Campbell, Carl J. Hobson, James McPartland, Alexander M. Mood, Frederic D. Weinfeld, and Robert L. York. Equality of Educational Opportunity Washington, DC: U. S. Government Printing Office, 1966. Congressional Republicans propose school voucher plan, Associate Press, July 19, 2006, at http://www.firstamen dmentcenter.org/news.aspx?id=17176. Cookson, Peter W., Jr. and Kristina Berger. Expect Miracles: Charter Schools and the Politics of Hope and Despair Boulder: Westview Press, 2002. Cookson, Peter W. Jr. School Choice: The Struggle for the Soul of Ame rican Education New Haven, CT: Yale University Press, 1994. Cookson, Peter W., Jr. and Sonali M. Shroff, "School Choice and Urban School Reform," Columbia University, Teachers College, ERIC Clearinghouse on Urban Education Institute for Urban and Mino rity Education, Urban Diversity Series No. 110, December 1997. California Law Review 59: 321 438, 1971. _____ Education by Choice: The Case for Fam ily Control Berkeley, CA: University of California Press, 1978. _____ Scholarships for Children Berkeley, CA: Institute of Governmental Studies Press, 1992. Coons, John E., William H. Clune, and Stephen D. Sugarman. Private Wealth a nd Public Education Cambridge, Mass. : The Belknap Press of Harvard University Press, 1970. Cord, Robert L. Separation of Church and State: Historical Fact and Current Fiction New York: Lambeth Press, 1982. Coulson, Andrew J. Market Education: The Unknown History New Brunswick, NJ: Social Philosophy and Policy Center and Transaction Publishers, 1999. Cremin, Lawrence A., ed., The Republic and the School: Horace Mann on the Education of Free Men New York: Teachers College Press, 1957. Crisa fulli, Sara J. Zelman v. Simmons School Voucher Programs Really the Last Word? 71 Fordam L. Rev. 2227 2281 (2003). Cubberely, Ellwood P., ed. Reading in Public Education in the United States Boston: Hought on Mifflin Co., 1934.

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241 for U. S. Secretary of Education Richard Riley for speech at the National Press Club, Washington, D.C, September 23, 1997. Washington, DC: U. S. Department of Education, 1997. Available at http://www.ed.gov/Speeches/09 1997/index.html Washington Post June 15, 2001. Retrieved October 1, 2002 from http://washingtonpost.com/ac2/wp dyn/A3404 2001Jun14?language January 2 2, 2004. Available at http://dc.gov/mayor/news/release.asp?id=561&mon=200401 Dowling American School Board Journal January 1999. ment Clearinghouse Notes. December 1994. Education Finance Task Force White Paper, American Institutes of Research Draft Handbook Update Project Washington, DC: National Center for Education Statistics, 12/19/00. Available at http://nces .ed.gov/forum/pdf/finance_voucher.pdf Egan, Marcus. Keep Public Education Public: Why Vouchers Are a Bad Idea Alexandria, VA: National School Boards Association, 2003. Available at http://www.nsba.org/site/docs/33800/33736.pdf Elmore, Richard F. and Mi lbrey W. McLaughlin. Steady Work: Policy, Practice, and the Reform of American Education. Santa Monica, CA: RAND, 1988. Engel, Michael. (2000). The Struggle for Control of Public Education: Market Ideology Vs. Democratic Values. Philadelphia: Temple University Press. Epstein, Lee and Thomas G. Walker. Religion: Exercise and Establishment in Constitutional Law for a Changing America: A Short Course 2 nd Ed. Washington, D.C.: CQ Press, 2000. of Religious Freedom: Notre Dame L. Rev. 581 (1995). Phi Delta Kappan 79(5), 370 379. Evidence on How and Why Harvard Journal on Legislation 28 (Summer): 465 98. National Review

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242 Online, June 9, 2004. Available at http://www.nationalreview.com/commen t/finn200406090839.asp Fiske, Edward B. and Helen F. Ladd. The Voucher Debate after Zelman v. Simmons Harris: The Need to Focus on Core Education Issues V2, N1, 2002 Center for Child and Family Policy Education Reform Available at http://www.pubpol.duke.edu/centers/child/briefs/Vouchers%20after%20Zelman.pdf Divide at Issue i First Circuit Expose Anti 193 Education Law Reporter, 343 63, 2005. Available at http://www.blaineamendments.org/scholarship/Fossey LeBlanc ELA Nov%2022%202004.pdf Fowler, Frances C., Policy Studies for Educational Leaders. New York: Prentice Hall Inc., 2000. Policy Review No. 93. January February, 1999. Cumb. L. Rev 7 09 (2001). Friedelbaum, S. H., The Religion Clauses: Perennial Themes, Unsettled Directions in The Rehnquist Court: In Pursuit of Judicial Conservatism Westport, CT: Greenwood Press, 1994. Eco nomics and the Public Interest. Robert A. Solo, ed. New Brunswick, N.J.: Rutgers University Press, 1955: 123 144. _____ Capitalism and Freedom. Chicago, IL: University of Chicago Press, 1962. _____ Bright Promises, Dismal Performance: An Economist's P rotest William R. Allen, Editor. New York: Harvest/Harcourt Brace Jovanovich, 1983 Friedman, Milton and Rose Friedman, Free to Choose: A Personal Statement Orlando, FL.: Harcourt, Inc, 1980. Friesen, J. State Constitutional Law: Litigating Indiv idual Rights, Claims and Defenses. (1992).

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257 BIOGRAPHICAL SKETCH Kathleen Guzman Sciortino, who prefers to be called Kathy, was born and raised in Indiana. She graduated from Indiana University with a Bachelor of Arts in p sychology. Next Kathy receive d her master s degree in b lind r ehabilitation t eaching from Western Michigan University. After moving to central Fl orida, she worked in Orange, Seminole, and Osceola school districts at the school level and at the district level. Along the way Kathy received her Education Specialist degree from the University of Florida. She is married to Tom with five children and tw o grandsons.