Zelman v. Simmons-Harris, 536 U.S. 639 (2002), was a 5–4 decision of the United States Supreme Court that upheld an Ohio program that used school vouchers.
In the process, it also stripped away the last Constitutional and moral fig leaf from those who want to keep minority kids trapped in failing public schools.
The public schools in many of the poorer parts of Cleveland were deemed failures, and the legislature enacted the Pilot Project Scholarship Program in an effort to address the problem.
They were also not allowed to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.
[7] Simmons-Harris, along with other residents of the Cleveland area, argued that the government "could not pay tuition for students to attend religious school".
[9] Chief Justice Rehnquist delivered the majority opinion, which held that the school voucher program was not in violation of the Establishment Clause.
[11] Rehnquist's decision determined that the program in question aimed at secular assistance for the poor, low-performing children, who would otherwise have no options in a failing school district.
He wrote in the decision that the program had been "enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system.
O'Connor strongly believed that the program made no real and clear distinction between religious and non-religious schools and that both were rational education alternatives.
That and the fact that true private school choice was available meant, in her view, that the program did not violate the Establishment Clause.
Also, she believed that the "decision, when considered in light of other longstanding government programs that impact religious organizations and our prior Establishment Clause jurisprudence, [does not] mark a dramatic break from the past."
Finally, she wrote in her concurrence, "The share of public resources that reach religious schools is not... as significant as respondents suggest.... $8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions" without there being any serious question regarding the constitutionality of such support.
"[12] Thomas gave another strong concurrence to this Supreme Court decision: "The protection of religious liberty using the Fourteenth Amendment is legitimate, but to use the Establishment Clause to prevent the operation of a perfectly neutral program concerning school choice is not."
Thomas simply asserted that all this program did was essentially provide an educational opportunity to a range of disadvantaged minority children.
They are: The court ruled that the Ohio program met the test: Rehnquist, writing for the majority, stated, "The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits."
In his concurring opinion, Thomas emphasized that voucher programs, like the one in the case, were essential because "failing urban public schools disproportionately affect minority children most in need of educational opportunity."
[17] On June 30, 2020, the Supreme Court of the United States ruled in Espinoza v. Montana Department of Revenue that Montana's no-aid provision in its constitution, a Blaine amendment, had been inappropriately used to block tax-credit scholarship funds for private schooling for being used at a religious school in violation of the Free Exercise Clause.