ZELMAN V. SIMMONS-HARRIS was a landmark Supreme Court case upholding, in a 5-4 decision announced on June 27, 2002, the constitutionality of an Ohio law providing vouchers to Cleveland students to attend the public or private, including parochial, schools of their choice. The court said the law did not represent an establishment of religion but was rather "neutral in all respects toward religion." The Cleveland Scholarship and Tutoring Program, the focus of the controversy, was originally enacted into law by the Ohio Legislature as part or the 1995 budget act (HB 117, 121st General Assembly). The pilot project gave families up to $2,250 as part of a test of the impact of school choice on academic performance.

The Cleveland program was similar to one established a few years earlier in Milwaukee, but was the first to allow participation of religious schools. A national movement for school choice and vouchers had gained support among both conservative and mainstream political think tank analysts, Republican politicians, independent school administrators, religious leaders, blacks frustrated with the quality of urban education, and notably in Ohio, Akron industrialist and large Republican campaign donor David Brennan. Opposition to school choice, especially initiatives encompassing private schools, surfaced among teachers unions, public school administrators, civil libertarian organizations, most congressional Democrats, white suburban Republicans happy with their local public schools, and many black leaders. Parallel efforts to create greater options within the public school system, including CHARTER SCHOOLS, were somewhat better received among teachers unions and Democrats.

In January 1996, The American Civil Liberties Union and other groups filed suit in Franklin County challenging the constitutionality of the Cleveland program. In July, Franklin County Common Pleas Court Judge Lisa L. Sadler upheld the voucher provision, but Sadlers decision was reversed in May 1997 by the Ohio 10th District Court of Appeals, which unanimously found the program in violation of both the state and federal constitutions. On November 10, 1998, The U.S. Supreme Court, in an 8-1 decision, refused to hear a case against the similar Wisconsin law. In May 1999, the Ohio Supreme Court declared the program unconstitutional due to the procedural error of inclusion in the general budget act, contrary to the single subject rule of lawmaking, but affirmed the programs consistency with the establishment clause. In June 1999, the Ohio Legislature remedied the procedural flaw by passing a new voucher provision as part of an education budget bill (HB 282, 123rd General Assembly). The Ohio Education Association, the Ohio Federation of Teachers, the American Civil Liberties Union, and People for the American Way filed legal opposition, on July 20, 1999, in federal court. On August 24, 1999, U.S. District Court Judge Solomon Oliver, Jr., found the law unconstitutional on First Amendment grounds, and granted an injunction requiring students participating in the program to return to public schools. Three days later, on August 27, Oliver amended the injunction to allow previously enrolled students to remain in private schools, but preventing 817 children awarded new scholarships for the 1999-2000 school year from receiving funds for the first time. Voucher proponents appealed Olivers injunction to the U.S. Court of Appeals for the Sixth Circuit without response and then to the U.S. Supreme Court, which on November 5, 1999, stayed the injunction in a 5-4 ruling, restoring scholarship money to the 817 children. On December 11, 2000, the Sixth Circuit Court of Appeals sustained Olivers rejection of the program as unconstitutional in a 2-1 decision and later denied Ohio Attorney General Betty Montgomerys request for a full-panel hearing. On September 25, 2001, the U.S. Supreme Court agreed to hear the case.

The U.S. Supreme Court heard oral arguments on February 20, 2002, amid peaceful but emotional rallies outside the courtside both for and against vouchers. Bright orange Cleveland Browns caps were conspicuous among the crowds. In her questioning during the session, Supreme Court Justice Sandra Day OConnor, considered the likely swing vote, seemed to demonstrate tentative approval of the Cleveland program.

On June 27, 2002, the court rule 5-4 in favor of vouchers, with Justices Sandra Day OConnor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas joining Chief Justice William Rehnquist in delivering the majority opinion. Rehnquist argued that the program is "entirely neutral with respect to religion." He explained, "It permits genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice." Justice David H. Souter offered a harsh dissent, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. Souter called the ruling "potentially tragic" as a "major devaluation of the establishment clause."

The decision reversed the 1973 Committee for Public Education and Religious Liberty v. Nyquist ruling in which the U.S. Supreme Court rejected a similar New York state private school tuition reimbursement program due to the involvement of sectarian schools. The 2002 ruling was perceived as a major victory for school choice supporters, seeming to ensure the survival of the Cleveland program and those similar in Milwaukee and Florida, as well as immediately encouraging several new voucher initiatives in other states. Nearly 4,500 Cleveland students received tuition scholarships through the program for the 2001-2002 school year.

Gregory B. Bodwell

Freiden, Terry, "Supreme Court Affirms School Voucher Program," CNN, June 27, 2002.

Reid, Karla Scoon, "Supreme Courts Voucher Showdown Draws Hundreds to Witness History," Education Week, February 27, 2002.

Walsh, Mark, "A School Choice for the Supreme Court," Education Week, February 27, 2002.

Walsh, Mark, "Supreme Court Upholds Cleveland Voucher Program," Education Week, June 27, 2002.

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