The education world was abuzz last Tuesday as the U.S. Supreme Court released its opinion in Carson v. Makin. The Court struck down a provision in Maine’s tuition assistance program that barred families from using public funds to attend religious private schools, a ruling that could have far-reaching effects for school choice in America. While Carson has attracted much attention in the media, its link to Ohio has received scant mention. This is an unfortunate oversight, as a separate Supreme Court case that began in the Buckeye State twenty years ago helped set the precedent for the decision.
The story begins in Cleveland. As part of a host of reforms intended to address the Cleveland Metropolitan School District’s chronic low performance, Ohio introduced a new voucher program, the Pilot Project Scholarship Program, in the fall of 1996. Eligible students received grants of $2,250 per year to attend private schools in the Cleveland area. Religious schools were permitted to participate in the program, but no participating school could discriminate against students on the basis of race, religion, ethnicity, or national origin.
The inclusion of religious schools rankled some citizens. Doris Simmons-Harris filed a lawsuit against then-state superintendent of public instruction Susan Zelman, claiming that Ohio had violated the Establishment Clause of the First Amendment. After much legal wrangling, the case was appealed to the Supreme Court.
Zelman won in the end. Chief Justice William Rehnquist wrote the 5-4 majority opinion that declared Ohio had not violated the Constitution. He stated that the Cleveland voucher program was “neutral in all respects toward religion.” State funds were not going directly to religious schools; they were going to families, who made the decision to attend a secular private school or a religious one. It was the first time the Court ruled that states were permitted to steer public dollars into religious elementary and secondary schools.
With a victory in the Supreme Court secured, Ohio expanded the voucher program over the coming decades. Today, more than 7,000 Cleveland students today attend a private school using a state-funded voucher, and roughly 57,000 Ohio students participate in the EdChoice voucher program—a statewide program operating since 2006. According to one estimate, 97 percent of voucher funds went towards religious schools in the 2015–16 school year.
While Zelman settled the issue of whether a voucher program violated the Establishment Clause by including religious schools, Carson v. Makin considered whether Maine’s tuition program violated the Free Exercise Clause by excluding religious schools. Much of Maine is rural and sparsely populated—so much so that there are not enough students in some communities to maintain a high school. Where there is no option for a public secondary school, the state provides tuition assistance for students to enroll in private schools. A change to the law in 1981 required that these schools be “nonsectarian.” This motivated a lawsuit by two families who, lacking a public option, enrolled their children in religious private schools and therefore could not participate in the tuition program.
A 6-3 majority of the Court sided with the families, finding that the state “violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” States are under no obligation to support private schools, the Court ruled, but if they do, they can’t leave out religious ones. Citing Zelman in the majority opinion, Chief Justice John Roberts stated that “a benefit program under which private citizens ‘direct government aid to religious schools wholly as a result of their own genuine and independent private choice’ does not offend the Establishment Clause.” Indeed, in the course of just two decades, the Court went from permitting the inclusion of religious schools in tuition assistance programs to requiring it.
Zelman was even cited in two of the dissenting opinions, albeit to different ends. Justice Stephen Breyer—one of two justices remaining from the Zelman court—referenced his previous dissent and his belief that there is “play in the joints” of the two religion clauses. In his view, this allowed Maine to include religious schools in its tuition program but did not require Maine to do so. In her own dissent, Justice Sonia Sotomayor took a dim view of Zelman, citing it as example of when the Court "eroded” the separation between church and state.
It is not clear what the long-term effects of this decision will be. While some have suggested that it opens the door to religious charter schools, others are more reserved. What is clear is that the Cleveland voucher program—and the Supreme Court’s landmark Zelman decision—played a crucial role in determining the shape of school choice for the rest of the nation.
