Until recently, advocates of school choice faced a formidable legal barrier to providing educational options for families: no one knew for sure what school choice programs were permitted by the U.S. Constitution.
In June 2002 the Supreme Court finally lifted the cloud of constitutional doubt that had hovered over the school choice movement. In Zelman v. Simmons‐Harris the Court upheld a school choice program that was designed by the Ohio legislature to help children in Cleveland escape from that city’s failing public schools. The Court did not merely issue a narrow, fact‐specific decision on the Cleveland program; it clarified the rules for determining what kinds of school choice programs are constitutional.
This paper explains the facts and history of the Cleveland program upheld in Zelman and provides advocates, lawmakers, and concerned parents with a clear explanation of the rules that the Supreme Court has established for school choice. It includes examples and strategy advice to help proponents of school choice win the next legal battle before it even begins–by crafting an obviously constitutional school choice program that opponents can’t effectively challenge.
The Supreme Court adopted five basic criteria for a program of “true private choice” in Zelman. First, any government program must have a secular purpose to survive Establishment Clause challenge. Second, a school choice program must offer only indirect aid to religious schools. Third, the benefits of a school choice program must be made available to a broad class of beneficiaries. Fourth, a program must not be set up in a way that favors religious options over secular options. Finally, states must ensure that parents have adequate nonreligious educational options.
While the rules for school choice under the federal Constitution are now fairly clear, many state lawmakers still face uncertainty about whether choice programs will be upheld under their state constitutions. Lawsuits now challenging restrictive state constitutions will signal how other states’ constitutional provisions will likely be treated.
Those lawsuits have political as well as legal value. They have exposed the shameful, anti‐Catholic history of some state constitutional provisions and have reopened the public debate about whether a state should prohibit programs that offer parents educational choices and do not discriminate on the basis of religion.