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 United States Supreme Court applied the Lemon three-- prong test and determined that each program passed the first prong because each program was "adequately supported by legitimate,

nonsectarian state interests."55 The Court then held that each of the programs violated the second prong because the programs had the primary effect of advancing religion.56 Because of this failure, the programs were found to "offend[] the constitutional prohibition against laws `respecting an establishment of religion.",57 With regard to the first program, which provided direct funds for building repair and maintenance, the Supreme Court noted that the statute could allow "a sectarian elementary or secondary school to finance its entire `maintenance and repair' budget from state tax-- raised funds."58

In applying the second prong of the Lemon analysis to the low income tuition reimbursement program, the Supreme Court found that any direct payments to the sectarian schools would fail the test for the same reasons as the maintenance and repair program.59 The program utilized payments to parents, and the Court took note that the "controlling question... is whether the fact that the grants are delivered to parents rather than schools is of such significance as to compel a contrary result."60 The Court stated that the delivery to the parents did not create a "per se immunity from examination of the .. program, . . . [rather it] is only one among many factors to be considered."61 The Supreme Court reasoned that unlike Allen and Everson, the grants involved here were subject to no effort "`to guarantee the separation between secular and religious educational functions [or efforts] to ensure that State financial aid supports only the former."' 62 Another distinction from the programs at issue in Allen and Everson was that in the previous cases, the beneficiaries of the programs included public as well as private school families, whereas this program limited benefits to nonpublic school families.63 The Court stated, "we think it clear, . . . that New

York's tuition grant program fares no better under the 'effect' test than its maintenance and repair program . . . ..64 The Supreme Court then addressed the third program, which created tax benefits for parents whose children attended nonpublic schools, and found that this program also failed to restrict the use of funds to nonsectarian activities and, therefore, failed the second prong of the Lemon test.65

In the case of Mueller v. Allen,66 the United States Supreme Court applied the Lemon three-prong test to a Minnesota statute that allowed certain tax deductions for education expenses.67 The Court held that the Lemon test was the standard to apply, but established a caveat that past cases had "emphasized that it provides `no more than [a] helpful signpos[t]' in dealing with Establishment Clause challenges."68 The Supreme Court noted that it did not need to spend much time on finding a secular purpose for the tax deductions, thus, satisfying the first prong of the Lemon test.69