Until recently, advocates of school choicefaced a formidable legal barrier to providing educationaloptions for families: no one knew forsure what school choice programs were permittedby the U.S. Constitution.
In June 2002 the Supreme Court finally liftedthe cloud of constitutional doubt that had hoveredover the school choice movement. In Zelmanv. Simmons‐Harris the Court upheld a schoolchoice program that was designed by the Ohiolegislature to help children in Cleveland escapefrom that city’s failing public schools. The Courtdid not merely issue a narrow, fact‐specific decisionon the Cleveland program; it clarified therules for determining what kinds of schoolchoice programs are constitutional.
This paper explains the facts and history ofthe Cleveland program upheld in Zelman andprovides advocates, lawmakers, and concernedparents with a clear explanation of the rules thatthe Supreme Court has established for schoolchoice. It includes examples and strategy adviceto help proponents of school choice win the nextlegal battle before it even begins–by crafting anobviously constitutional school choice programthat opponents can’t effectively challenge.
The Supreme Court adopted five basic criteriafor a program of “true private choice” in Zelman.First, any government program must have a secularpurpose to survive Establishment Clause challenge.Second, a school choice program must offeronly indirect aid to religious schools. Third, thebenefits of a school choice program must be madeavailable to a broad class of beneficiaries. Fourth,a program must not be set up in a way that favorsreligious options over secular options. Finally,states must ensure that parents have adequatenonreligious educational options.
While the rules for school choice under the federalConstitution are now fairly clear, many statelawmakers still face uncertainty about whetherchoice programs will be upheld under their stateconstitutions. Lawsuits now challenging restrictivestate constitutions will signal how other states’ constitutionalprovisions will likely be treated.
Those lawsuits have political as well as legalvalue. They have exposed the shameful, anti‐Catholichistory of some state constitutionalprovisions and have reopened the public debateabout whether a state should prohibit programsthat offer parents educational choices and donot discriminate on the basis of religion.