Constitutional law--Simmons-Harris v. Zelman: Will Ohio's school voucher program pass its final exam?

University of Memphis Law Review, The, Fall 2001 by Overstreet, Tracy

The Ohio General Assembly enacted legislation in 1995 known as the Ohio Pilot Project Scholarship Program (Program).1 The Program applied to any state school district that was subject to a federal court order that placed the district under the control of the state superintendent. It called for reimbursement of tuition cost to low income students who chose to enroll in alternative schools.3 The reimbursements covered either seventy-five or ninety percent

of tuition, depending on income level, with a limit of $2500 per student, per school year for families eligible for ninety percent reimbursement, and a $1875 limit for families eligible for seventyfive percent reimbursement.4

Schools eligible to participate in the Program included private schools in the school district that complied with state educational standards and public schools in adjacent districts.5 Eligible schools wishing to participate had to register with the state and follow the rules of the Program.6 Key restrictions on schools that participated in the Program regarded the costs of tuition, the preference given to low income students, and the requirement that students not be discriminated against based upon race, religion, or ethnic background.7 The participating schools were prohibited from advocating or fostering unlawful behavior or teaching hatred based upon race, ethnicity, national origin, or religion.8

Fifty-six schools participated in the Program during the 1999-2000 school year.9 Forty-six of the participating schools were church affiliated. 10 No public schools from adjacent districts registered for the Program.11

In July 1999, three citizens filed suit against Dr. Susan Tave Zelman, the Superintendent of Public Instruction for the Ohio Department of Education, seeking to enjoin a portion of the Program because it violated the Establishment Clause of the First Amendment.12 Also in July 1999, a second group of citizens filed suit seeking to enjoin the Program and named as defendants, inter

alios, Dr. Susan Zelman.13 Proposed Intervenors filed answers to the two complaints, and a preliminary injunction hearing for both cases was heard by the United States District Court for the Northern District of Ohio on August 13, 1999.14 On August 24, 1999, the district court took two actions: granting the relief sought by the Plaintiffs and consolidating the two cases.15 The State and two intervening Defendants immediately appealed the decision to the Sixth Circuit Court of Appeals. 16 Meanwhile, on August 27, 1999, the district court granted part of Defendants' motion by allowing a limited stay of the preliminary injunction. 17 The State then filed a motion for a stay of the whole preliminary injunction with the United States Supreme Court.18 On November 5, 1999, the United States Supreme Court, by a five to four vote, granted the State's motion pending the Sixth Circuit's disposition of the entire appeal. 19

The district court proceeded with the underlying case on an expedited basis.20 Both Plaintiffs and Defendants filed motions for summary judgment on November 1, 1999.21 On December 20, 1999, the district court granted the Plaintiff's motion for summary judgment by finding that the voucher program violated the First Amendment's Establishment Clause.22 The Defendants were enjoined from administering the Program, and their motion for summary judgment was denied.23 The district court stayed the summary judgment order pending review by the Sixth Circuit Court of Appeals.24 The Defendants appealed this decision to the

Sixth Circuit Court of Appeals on January 12, 2000.25 The Sixth Circuit Court of Appeals held, affirmed.26 The Sixth Circuit found that the Program violated the Establishment Clause of the First Amendment and affirmed the district court's order finding the school voucher program unconstitutional. Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000), reh'g en banc denied, Nos. 00-3055, 00-3060, 00-3063, 2001 U.S. App. LEXIS 3344 (6th Cir. Feb. 28, 2001).

The United States Supreme Court's Establishment Clause analysis in regard to religious schools and public funds has evolved over time through several key cases. The beginning of this evolution was the case of Everson v. Board of Education.27 Everson involved a New Jersey statute that allowed local school districts to establish rules and contracts for transportation of children to and schools.28 Under this law a local board authorized a program that reimbursed parents for the cost of using public busses to transport their children to schools.30 The Court analogized the reimbursement of the bus fare to other basic governmental services used by the churches such as "ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks."31 The Court held that the statute in question did not breach the wall of separation between church and state that was erected by the First Amendment.32

The next step in evolution arose in the case of Board of Education v. Allen.33 A New York statute that authorized the lending of textbooks to children in grades seven through twelve,