Stevens was right on vouchers

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.

Justice John Paul Stevens (uscourts.gov)

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.

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Voucher programs go beyond what court approved

The U.S. Supreme Court gave the green light to school vouchers in the 2002 case Zelman v. Simmons-Harris, clearing the way for states to create programs that provide public funding for religious schools.

But the Zelman decision addressed a specific program that served children from poor families in Cleveland. And the voucher programs that have proliferated in the past 15 years look very different and serve different purposes from the local Cleveland program.

United States Supreme Court Building

The court ruled 5-4 that the Cleveland voucher program didn’t constitute a state endorsement of religion – and thus a violation of the establishment clause of the First Amendment – because the tuition vouchers went to the students’ parents, who then directed the funding to the schools they chose.

Indiana Chief Justice Brent Dickson relied on similar reasoning in Meredith v. Pence, the March 2013 state Supreme Court ruling that found Indiana’s voucher program did not violate the state constitution’s ban on state funding for religious organizations.

But some of the justifications the Supreme Court cited for supporting vouchers in Zelman don’t apply to many of the two dozen or so voucher programs that now operate in 15 states, with more likely to come.