Mr. Lanting, a member of Cornerstone Protestant Reformed Church of Dyer, Indiana, is a practicing attorney.

The Cleveland tuition voucher scheme involves the grant of state aid directly and predominantly to the coffers of the private, religious schools, and it is unquestioned that these institutions incorporate religious concepts, motives, and themes into all facets of their educational planning. … We hold that the Cleveland voucher program has the primary effect of advancing religion, and that it constitutes an endorsement of religion and sectarian education in violation of the Establishment Clause of the Constitution.

Simmons-Harris v. Zelman,

U.S. Court of Appeals, 6th Circuit (majority opinion).

The majority devotes considerable attention to the mission statements of several religious schools, which indicate the pervasively religious character of their programs. Imagine, religious schools that are truly religious! This plainly hostile attack on the religious schools in the Ohio voucher program is one I would have thought unworthy of mention in an opinion from this great court. Is the point being made here that religious schools may participate in a voucher program provided they are not too religious? … In striking down the [Ohio voucher program] today, the majority perpetuates the long history of lower federal court hostility to educational choice, … an exercise in raw judicial power having no basis in the First Amendment or in the Supreme Court’s Establishment Clause jurisprudence.

Simmons-Harris v. Zelman,

U.S. Court of Appeals, 6th Circuit (minority opinion).

First Voucher Case

The U.S. Supreme Court agreed last month to con-sider for the first time the constitutionality of a state tuition voucher scheme designed to provide tuition assistance to low-income parents of children in a failing public school system. In recent years the Court has declined to hear appeals of similar voucher cases, including the highly publicized cases from Milwaukee and Arizona, where the programs were upheld by state supreme courts. Some constitutional scholars are suggesting that the Court’s decision in this pending Cleveland case, expected in June of next year, may be the most important church/state case in 50 years.

At issue is last year’s ruling (quoted above) by a three-judge panel of the U.S. Court of Appeals in Cincinnati, which, by a 2-1 decision, struck down the controversial Ohio voucher program as violative of the First Amendment prohibiting the “establishment of religion.” The Bush administration had filed a brief with the Cincinnati appellate court, arguing that the impact of the Ohio voucher scheme was “neutral,” aiding students without regard to religion and allowing private schools to participate, notwithstanding their sectarian orientation. But a majority of the federal Court of Appeals disagreed, holding that, because the Ohio voucher scheme had no restrictions on the religious schools as to their use of the tuition funds, there was no effective means of guaranteeing that the state aid would be used “exclusively for secular, neutral, and non-ideological purposes.”

The Ohio Pilot Scholarship Program

The voucher program at issue was adopted in 1995 by the Ohio state legislature in response to a federal court order that placed the Cleveland School District under direct state management and supervision due to mismanagement by the local school board. At the time, the Cleveland schools had failed all of the state’s 18 standards to evaluate minimum performance. A 1996 survey disclosed that only 9 percent of Cleveland’s high school students passed Ohio’s 9th grade proficiency test.

The remedial voucher program provides $2,500 scholarships to children residing in the applicable district, with “preference to students from low-income families.” Approximately 60 percent of the children receiving scholarships in the program were from families below the established poverty line.

Although the scholarship vouchers could be used at any school (including surrounding public schools), an estimated 95 percent of the scholarship recipients voluntarily enrolled at private religious schools within the Cleveland school district operated by Catholics, Lutherans, and non-denominational evangelical Christians. The participating private schools are required to register for the program and are prohibited from discriminating on the basis of race, religion, or ethnic background; advocate or foster unlawful behavior; or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion. The program requires participating private schools to cap tuition at $2,500 per student. The scholarship checks are mailed to the school selected by the parents, where the parents are required to endorse the checks over to the school to pay tuition. During the 1999-2000 school year, fifty-six schools registered to participate in the programs; 82 percent were church-affiliated.

Federal Appeals Court Strikes Down Cleveland Voucher Program

The three-judge panel of the 6th Circuit Court of Appeals ruled last year that the Ohio Pilot Scholarship Program violated the Constitu-tion’s Establishment Clause, which provides that states “shall make no law respecting an establishment of religion….” The court began its constitutional analysis by referring to the Supreme Court’s landmark decision in the 1971 case of Lemon v. Kurtzman, wherein the Court established the historic three-pronged test to determine whether a state aid statute passes constitutional muster under the Establishment Clause: 1) the statute must have a secular legislative purpose; 2) the primary effect of the statue must be one that neither advances nor inhibits religion; and 3) the statute must not foster excessive entanglement with religion.

The U.S. Supreme Court has applied the Lemon test to numerous church/state cases in the last three decades, but the appellate court majority found the 1973 Nyquist case “the most persuasive.” In Nyquist, a New York state statute established a tuition grant program which provided for 50% tuition reimbursement to low-income parents whose children attended private and elementary or secondary schools, 85% of which were sectarian.

The U.S. Supreme Court in Nyquist struck down the New York tuition reimbursement scheme, and the Cincinnati appellate court held that Nyquist was applicable to the Ohio program:

We find that Nyquist governs our result. In both Nyquist and this case, there are no restrictions on the religious schools as to their use of the tuition funds—the funds may be used for religious instruction and materials as easily as for erasers and playground equipment.

The court also opined that Ohio’s $2,500 tuition cap effectively discouraged participation in the program by “schools not funded by religious institutions.” Accordingly, the tuition cap was a “financial disincentive” for public schools outside the district to take on students via the voucher program. The court held that although the Ohio program permitted participation by public schools, since no public schools actually registered in the program, this alternative was illusory:

The Ohio scholarship program is designed in a manner calculated to attract religious institutions and chooses the beneficiaries of aid by non-neutral criteria. There is no neutral aid when that aid principally flows to religious institutions; nor is there truly “private choice” when the available choices resulting from the program design are predominantly religious.

The Dissent

Justice Ryan filed a vigorous and sarcastic dissent, arguing that it is “impossible to take seriously” the majority’s claim that the 1973 Nyquist case governs the court’s result:

The majority’s refusal to conduct any meaningful analysis of the Supreme Court’s several Establishment Clause decisions handed down in the 27 years since Nyquist was decided, and the factually unsupported anti-religious schools arguments strongly suggest that the majority has simply signed onto the familiar anti-voucher mantra that voucher programs are no more than a scheme to funnel public funds into religious schools.

The dissenting judge argued that the New York tuition reimbursement program struck down in Nyquist 30 years ago is clearly distinguishable from the Ohio voucher program at issue for three reasons. First, the New York statute was designed to provide financial assistance to financially troubled private schools; the Ohio scheme was designed to help public schools in Cleveland. Secondly, the New York program involved direct grants to private schools, whereas the funds under the Ohio statute are given to the parents and reach the private religious school only after parents have considered a variety of options. Thirdly, the New York program permitted participant schools to impose religious restrictions on admission; the Ohio program forbids participating schools from discriminating against prospective students on the basis of religion.

The dissent also argued that Nyquist is no longer good law because the Lemon test utilized by Nyquist in 1973 has been “modified” by subsequent Supreme Court decisions. The new test, argued Justice Ryan, is to determine whether the “impermissible effect” of Ohio’s voucher program is to advance religion, either because (1) the aid it provides results in governmental indoctrination, or (2) the program defines its recipients by reference to religion.

Addressing the first prong of the modified test, the dissent argued that no governmental indoctrination occurs in the Ohio program because the voucher recipients make a “genuinely independent and private choice” to “spend” the funds in a religious school, rather than various other options (including attending Cleveland public schools or non-religious private schools). Regarding the second prong, the dissent insisted that the Ohio scheme is “neutral,” “expressing no preference, explicitly or implicitly, either as to the religion of the voucher recipient … or whether the voucher is applied to a religious or non-religious school.”


The Supreme Court’s anticipated ruling on Ohio Pilot Scholarship Program, expected next spring, will be its first ruling on the issue of tuition vouchers. In recent years the court declined to rule on the controversial voucher programs in Milwaukee and Arizona which had been approved by lower courts. The Supreme Court’s acceptance of the Ohio case for consideration has led constitutional scholars to surmise that the Court is now poised to alter its previous rulings barring most state tuition aid to private religious schools. Although some church/state experts are predicting a comprehensive landmark decision on vouchers, there are reasons to believe that the Court’s ruling will be limited in scope. The Court’s approval of the Ohio Pilot Scholarship will hardly be carte blanche for a national tuition voucher scheme proposed by school choice advocates.

First, the Ohio program at issue is primarily directed at low-income families from failing public school districts. The dissent made much of the fact that the purpose of the Ohio statute was to “provide financial help to poverty level students attending public schools in Cleveland…,” in contrast to the New York statute in Nyquist which was aimed at benefiting financially pressed private schools.

Secondly, the Ohio Pilot Scholarship Program contained an alarming provision explicitly forbidding participating schools from discriminating against prospective enrollees on the basis of religious belief. Since most Christian private schools insist that parents subscribe to an evangelical or Reformed/Presbyterian statement of faith, if the Supreme Court indeed finds the religious nondiscrimination requirement significant, it is difficult to imagine how the Court’s approval of such a fundamentally restrictive voucher program would be beneficial for evangelical Christian schools. In fact, such an anticipated ruling by the Supreme Court—prohibiting discriminatory religious admission requirements—would again be a serious challenge to the independence and autonomy of parental Christian schools which understandably loathe governmental intrusion in admission standards, teacher certification, and curriculum content.