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17 Educ. & the L. 173 (2005)


In Zelman v. Simmons-Harris, the Supreme Court of the US ruled that the First Amendment’s Religion Clause, i.e. ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’, permits publicly funded school-voucher experiments that include private and religious schools. In other words, the Court made it clear—albeit by a narrow 5-4 margin—that governments do not unconstitutionally ‘establish[]’ religion merely by permitting eligible students to use publicly funded scholarships to attend qualifying religious schools, so long as the students’ parents are able to make a ‘true private choice’ for the school their children attend.

However, the Zelman decision left unanswered and unresolved many questions and problems. The general rule announced and applied can be stated in straightforward fashion: A publicly funded voucher program that indirectly aids religious institutions must be ‘neutral with respect to religion’ in that it provides assistance ‘to a broad class of citizens defined without reference to religion’ who then ‘direct government aid to religious schools wholly as a result of their genuine and independent private choice.’ In practice, though, uncertainties remain.

Though the constitutionality of school choice programs is, as a general matter anyway, settled under the federal Constitution, the constitutionality of individual programs at the state level is still at issue around the country. Bush v. Holmes is the latest legal fight in the broader movement within America to increase educational opportunity for the underprivileged through school voucher programs.


Reprinted with permission of Education and the Law.

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