Retired Supreme Court Justice John Paul Stevens, who died Tuesday, is being remembered for a lot of things: His evolution from Republican corporate attorney to a leader of the court’s liberal bloc. His common-sense and non-ideological approach to the law. And yes, his snappy bow ties.
Those of us who care about education should remember his forceful dissent in Zelman v. Simmons-Harris, the 2002 decision that said it was OK for states to pay for tuition vouchers allowing students to attend private schools, including religious schools.
Zelman was a 5-4 decision. If just one more justice had agreed with Stevens’ reasoning, the school choice landscape in 2019 might look very different.
The case involved a small pilot program in Cleveland that let about 5% of the city’s students receive state-funded vouchers to attend private schools. Susan Zelman, the Ohio superintendent of public instruction, challenged the program as an unconstitutional violation of church-state separation.
The majority decision, by Chief Justice William Rehnquist, reasoned that vouchers were allowable because the state money went to the parents, not directly to religious schools. He justified the decision with a discourse on the poor quality of Cleveland public schools and the choices available within the public system.
Stevens, in a concise dissent, cut to the chase. The only question before the court, he wrote, was: “Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths a ‘law respecting an establishment of religion’ within the meaning of the First Amendment?” In his view, it clearly was. That meant it violated the First Amendment.
Arguing that the majority opinion was “profoundly misguided,” Stevens wrote that he was influenced by his understanding of religious strife in the Balkans, the Middle East, Northern Ireland and elsewhere.
“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy,” he wrote.
State courts, including the Indiana Supreme Court, have cited the Zelman decision in ruling that voucher programs don’t violate state constitutions banning public support of religion. And voucher programs have proliferated. There are 29 programs in 18 states, according to the Indianapolis-based EdChoice, which advocates for vouchers. States also support private and religious education through K-12 education savings accounts and tax credits for private school scholarships.
Indiana’s voucher program is the largest and most generous. In 2018-19, the state paid $161.4 million to provide vouchers for over 36,000 students who attended 329 private schools. Half of Hoosier families with children meet the program’s income requirements.
It’s worth noting that Rehnquist’s decision in Zelman wasn’t the blank check that policymakers have taken it to be. In justifying support for the Cleveland program, he noted that participating schools couldn’t discriminate on religious grounds. But voucher schools in Indiana openly discriminate by religion. He also said Cleveland students could choose to attend non-sectarian private schools with vouchers. But in Indiana, nearly all voucher schools are religious schools; enrolling in a non-sectarian private school isn’t an option.
Stevens got it right on school vouchers, and his concerns about religious dissension were valid – just look at the controversy generated when voucher-supported Catholic high schools in Indianapolis fired teachers for being in same-sex marriages.
But Supreme Court precedents are powerful. When it comes to vouchers, the “wall of separation” that Thomas Jefferson thought the Constitution had erected between church and state has tumbled down, and no court will rebuild it. That’s up to our legislators – and to us, the voters.