The case snowballed and grew until the nation viewed Zelmanv Simmons-Harris as the test case to try the legal boundary between church and state. It was also looked to for the purpose of redefining the meaning and scope of public education in America.
Enacted by the Ohio legislature in 1995, the Cleveland Scholarship and Tutoring Program allows 4,000 low-income children to attend private religious and secular schools with up to $2,250 in public support (Vitteritti, 2002). Participating schools must cap their tuition at $2,500 a year; the state pays up to 90% of whatever the school charges, depending on family income (Vitteritti, 2002). Following a high-profile legal battle, the program was upheld by the Ohio Supreme Court in 1999, prompting opponents to take their case into federal court (Vitteritti, 2002). On the day before school was to open that year, federal district court judge Solomon Oliver struck down the program, ruling that the use of tax dollars to pay for children to attend religious schools offends the First Amendment's Establishment Clause (Vitteritti, 2002). Judge Oliver halted the acceptance of new students to the program while the case was being appealed. Soon thereafter, a sharply divided (5-4) U.S. Supreme Court took an unusual move to vacate Judge Oliver's injunction and allow the program to continue unaltered while the case is in litigation (Vitteritti, 2002)."
The case as appealed and in 2004 the United States Court of Appeals representing the sixth circuit upheld and affirmed the lower court's ruling.
The case of Zelman v Simmons-Harris was founded in the fact that within the Cleveland district 46 out of the 56 voucher participating schools were from religious teachings leaving very few options for the parent that wanted their child to attend a secular school on the voucher program (Vitteritti, 2002).
In Zelman, the Ohio attorney general further pointed out that schools participating in the Cleveland voucher program represent only a small portion of the range of choices available outside the regular public schools. In 1999 Cleveland had 23 magnet schools with 13,000 students in attendance and eight charter schools with 1,600 students in attendance, compared with the 3,800 in the voucher program (Vitteritti, 2002). The two-person majority refused to accept the range-of-choice argument, however, because the magnet and the charter programs were not enacted under the auspices of the voucher law that was being reviewed (Vitteritti, 2002). Legally speaking, these other choices did not exist (Vitteritti, 2002). Under the rules of evidence defined by these judges, the same court that could peek into the minds of legislators to determine intent could not recognize hard evidence crucial to determining whether dissatisfied parents at regular public schools had choices beyond religious schools (Vitteritti, 2002)."
It is interesting to note that both sides presented evidence regarding the amount of the vouchers that were being provided to the students and their families.
The state presented its evidence with statements that the vouchers were being paid out to a maximum of $2,500. At the same time the state also introduced evidence that each student in the public school system was costing the district more than $7,700. This was used to illustrate that the voucher system of a maximum of$2,500 a year was far less than the current spending of almost $8,000 a year (Vitteritti, 2002).
The state argued that the religious schools were not recruiting students, nor was the district trying to encourage public students to attend religiously-based schools, but instead argued that the religiously-based schools were the only schools in the area that had tuitions low enough to have the voucher cover the cost of the school. For parents in primarily poverty stricken areas this was an important point to discuss as the parents who were poverty stricken would not have the financial means to make up any difference between the maximum voucher payment and the actual tuition cost of whatever private school their children attended.
The fact that the voucher was able to cover the cost of most of the religiously-based school tuition was probably a driving force behind the decision by those schools to participate in the voucher program and the decision by the parents to send their children to those schools.
The state also argued that the religious affiliation of the schools participating in the voucher program in most cases would never come into play with the decision by parents to send their children there on vouchers. It was in fact the private school and high standard of education that prompted those choices and it was only coincidental that the schools being chosen had to do with religious foundations (Vitteritti, 2002).
This is a valid argument as the same can be seen across the nation with regard to Catholic school education. Throughout America there are several thousand Catholic school that go from Kindergarten all the way through high school. Though the schools are based on the Roman Catholic faith there are hundreds of thousands of students who attend Catholic school and are not Catholic (Vitteritti, 2002).
The driving force behind their parents' decision to enroll them in Catholic schools was in spite of the religious base, not because of it. For the most part Catholic education is well reputed to be a high standard of education where students are expected to achieve at higher levels than the national standards (Vitteritti, 2002). For this reason parents often choose Catholic schools even when the family values are not from the Catholic faith. They simply want their children to receive a high standard of education and they believe attending a Catholic school will provide such a standard.
Opponents used the same information about the religiously-based schools being the only schools with low enough tuitions for the vouchers to cover as a way to argue that it provides an incentive for parents to choose religiously-based schools thereby upsetting the balance of separation of church and state.
To the extent that the latter argument has merit, the remedy seems obvious: amend the voucher law to make the amount higher, let's say equal to the per capita amount spent in regular public schools. This would have to be done by the Ohio legislature."
As the arguments were being heard it became apparent that Justice Sandra O'Connor would most likely cast the deciding vote and it was at that time that the other justices began making plays for her to join their "side" (Vitteritti, 2002).
At one point during the debates Justice Souter said "What is bothering me... and, I suspect, O'Connor, too," is that the law must be not only neutral on its face but also in its effect, and "at the end of the day, the effect is a massive amount of money going into religious schools. That is the sticking point here (Vitteritti, 2002)."
O'Connor had indicated that the voucher program might resemble a New York State tuition-reimbursement program struck down in the 1973 Nyquist case (Vitteritti, 2002). Though this observation must have given hope to the NEA attorney, when he began insisting on mathematical certainties, he encountered tough, if patient, resistance: "Well, wait just a minute," said O'Connor (Vitteritti, 2002). "Do we not have to look at all of the choices open to the students, the community schools, the magnet schools, et cetera?" Chanin did his best: One must legally ignore all the other schools in Cleveland because "this court has always been program-specific in its financial-aid cases (Vitteritti, 2002)."
In the actual ruling of the case, the justices found that the program did not violate the mandate prohibiting the school system from promoting or inhibiting religious causes or beliefs. The justices believed this to be the case as they searched for and found that the program was initially set up for secular purpose of providing secular educational choices for parents about where they wanted their children to attend school (Supreme, 2002).
Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U.S. 203, 222-223(Supreme, 2002). This Court's jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice (Supreme, 2002)."
They also ruled that an incidental connection to a religious faith was not evidence of the violation of church and state separations.
The ruling also found that the argument that the vouchers created financial incentives to attract voucher students was not the case. And in fact there was actually a financial disincentive as such. Schools that chose to participate in the voucher program…