Order Code RL30165
CRS Report for Congress
Received through the CRS Web
Education Vouchers:
Constitutional Issues and Cases
Updated December 19, 2000
David M. Ackerman
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Education Vouchers:
Constitutional Issues and Cases
Summary
Whether government ought to provide assistance to help parents send their
elementary and secondary school children to out-of-district public schools and/or
private schools has become a recurring issue for Congress and state legislatures. One
dimension of that issue concerns whether the use of such assistance at private
sectarian schools violates the part of the First Amendment to the Constitution
providing that “Congress shall make no law respecting an establishment of religion
....” In numerous cases the Supreme Court has construed the establishment clause to
impose constraints on the provision of public aid to sectarian elementary and
secondary schools. But the constraints are not absolute, and the Court’s recent
decisions suggest that the constitutional constraints are loosening.
Under the establishment clause direct public assistance to religious entities must
be secular in nature and limited to secular use. Prior to the Court’s recent decisions,
this requirement had made it very difficult for religious entities deemed to be
“pervasively sectarian,” such as religious elementary and secondary schools, to receive
aid directly from the government, because religion was presumed to pervade all of
their activities. But the Court now appears to have abandoned that presumption As
a consequence, such entities now appear to be constitutionally eligible for such
assistance, subject to the secular nature and secular use requirements.
However, public aid programs that benefit sectarian entities only indirectly, such
as voucher programs, need not be so limited. If the government designs an indirect
aid program so that the initial beneficiaries (the taxpayers or voucher recipients)
inevitably use the benefits to subsidize religious entities, the Court’s decisions indicate
that the program will likely be found unconstitutional. But if the benefits are made
available on a religion-neutral basis and if the initial beneficiaries have a genuine
choice between secular and religious providers about where to use the assistance, the
Court’s decisions indicate that the program likely will be found to be constitutional
even though religious institutions gain some benefit.
Illustrating the difficulty of navigating the constitutional shoals of these
standards, several state and federal courts have recently reached conflicting
conclusions about the constitutionality of particular voucher or voucher-related
programs. State supreme courts in Wisconsin, Arizona, and Ohio have held particular
programs not to violate the establishment clause In contrast, the U.S. courts of
appeals for the First Circuit and the Sixth Circuit and the Maine Supreme Court have
held particular tuition subsidy programs to violate the establishment clause. In
addition, a state court in Vermont has held such a program to violate its state
constitution, one in Florida has held to the contrary, and one in Pennsylvania has
found a local program to violate state law. The U.S. Supreme Court has so far
refused to review any of these cases.
This report summarizes the constitutional standards that currently govern direct
and indirect government assistance to sectarian schools as well as the pertinent state
and lower federal court decisions. It will be updated as events warrant.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Direct Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Indirect Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Recent Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(1) Jackson v. Benson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(2) Kotterman v. Killian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(3) Simmons-Harris v. Goff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(4) Simmons-Harris v. Zelman and Gatton v. Zelman . . . . . . . . . . . . 11
(5) Bagley v. Raymond School Department . . . . . . . . . . . . . . . . . . . 13
(6) Strout v. Albanese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(7) Chittenden Town School District v.
Vermont Department of Education . . . . . . . . . . . . . . . . . . . . . . 14
(8) Giacomucci v. Southeast Delco School District . . . . . . . . . . . . . 15
(9) Holmes v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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Education Vouchers:
Constitutional Issues and Cases
Introduction
Whether government ought to provide assistance in the form of education
vouchers or tax assistance to help some or all parents send their elementary and
secondary school children to out-of-district public schools or private schools,
including sectarian institutions, has become a recurring and politically charged issue
at both the federal and state levels. Congress, for instance, has adopted several
voucher and tax benefit programs that have been vetoed by President Clinton.1
Several states, in turn, have instituted voucher programs either for specific localities
or on a state-wide basis.2
1 In the first session of the 104th Congress, the House added a school voucher plan to the
appropriations bill for the District of Columbia; but the measure died after a filibuster in the
Senate. In the first session of the 105th Congress, the House again added a voucher plan to
the D.C. appropriations bill; and it also adopted a tax-preferred education savings account
proposal for elementary and secondary education that would have expanded the definition of
“qualified education expenses” in the existing higher education IRA to include such expenses
as tuition and fees, special needs services, books and equipment, room and board, and
transportation costs incurred in attending a public, private, or religious school providing
elementary or secondary education, as well as certain home schooling expenses. But both
measures died after filibusters in the Senate.
During the first session of the 105th Congress, the House also considered, but rejected,
a free-standing voucher plan for all low-income students. Both the House and the Senate
adopted a voucher plan during the second session of the 105th Congress as part of the FY
1999 appropriations bill for the District of Columbia. But President Clinton vetoed the
measure. During the second session both the House and the Senate also approved tax-
preferred savings accounts for elementary and secondary education expenses, including
private school tuition; but again President Clinton vetoed the measure.
For information on the consideration of school choice proposals in the 106th Congress
and subsequently, see CRS Issue Brief IB98035, School Choice: Current Legislation, by
Wayne Riddle and Jim Stedman.
2 Wisconsin adopted a voucher plan applicable only to Milwaukee, and Ohio did so for
Cleveland. In 1999 Florida adopted a state-wide voucher program that includes private
sectarian schools. See Fla. Stat. Ch. 229.0537 (1999) (Opportunity Scholarship Program).
For additional information on state school choice programs, see CRS Report 95-344, Federal
Support of School Choice: Background and Options, by Wayne Riddle and Jim Stedman.

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One of the recurring dimensions of the voucher issue3 concerns whether the
inclusion of sectarian elementary and secondary schools in the universe of schools
which students might attend with vouchers violates the part of the First Amendment
to the Constitution providing that “Congress shall make no law respecting an
establishment of religion ....”4 In numerous cases the Supreme Court has construed
the establishment clause to impose limitations on the provision of public aid to
sectarian elementary and secondary schools. But the constraints of the establishment
clause are not absolute. The Court’s decisions permit a limited degree of public aid
to be provided directly to sectarian elementary and secondary schools and a broader
range of assistance to be provided indirectly. But the Court’s standards are not
completely transparent. Perhaps as a consequence, conflicting judicial decisions have
recently been handed down on the constitutionality of particular voucher and voucher-
related programs in the states of Wisconsin, Ohio, Arizona, and Maine. In addition,
state courts in Vermont and Florida have reached contrary decisions under their state
constitutions, and a court in Pennsylvania has found a local program to be prohibited
by state law.
The following sections summarize the constitutional standards articulated by the
Court for public aid programs that provide assistance directly to sectarian schools and
other religious entities and, in greater detail, for programs that provide assistance to
sectarian schools indirectly (i.e., voucher and tax benefit programs). A concluding
section summarizes recent judicial decisions concerning state and local voucher and
voucher-related programs.
Direct Aid
A basic tenet of the Supreme Court’s interpretation of the establishment clause
is that the clause “absolutely prohibit[s] government-financed or government-
sponsored indoctrination into the beliefs of a particular religious faith.”5 Thus, the
Court has held that public assistance which flows directly to religious institutions in
the form of grants or contracts must be limited to aid that is “secular, neutral, and
nonideological....”6 That is, under the establishment clause government can provide
direct support to secular programs and services sponsored or provided by religious
entities but it cannot directly subsidize such organizations’ religious activities or
proselytizing.7 Direct assistance must be limited to secular use.8
3 This report uses the term “voucher” broadly to mean not only tuition subsidy and tuition
grant programs but also tax benefit proposals.
4 The establishment clause has been held to apply to the states as well as part of the liberty
protected from undue state interference by the due process clause of the Fourteenth
Amendment. See Everson v. Board of Education, 330 U.S. 1 (1947).
5 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).
6 Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).
7 In most of the cases involving aid to religious institutions, the Court has used what is known
as the Lemon test to determine whether a particular aid program violates the establishment
clause: “First, the statute must have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits religion...; finally, the statute
(continued...)

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Thus, religious organizations are not automatically disqualified from participating
in publicly funded programs. But the secular use limitation on such aid means that a
religious organization’s secular functions and activities must be able to be separated
from its religious functions and activities. As a consequence, until recently the Court
had held that “pervasively sectarian” entities, i.e., entities so permeated by a religious
purpose and character that their secular functions and religious functions are
“inextricably intertwined,” were generally ineligible to receive direct government
assistance.9 That construction of the establishment clause was a particular burden for
religious elementary and secondary schools, because the Court generally deemed such
schools to fall within that category.10 For other entities such as religiously affiliated
hospitals, social welfare agencies, and colleges, the Court presumed to the contrary.11
But the Court has recently abandoned that presumption regarding sectarian
elementary and secondary schools.12 Pervasive sectarianism, in other words, is no
longer a constitutionally preclusive criterion for direct aid programs. The basic
7 (...continued)
must not foster “an excessive entanglement with religion.” Lemon v. Kurtzman, 403 U.S.
602, 612-13 (1971). The secular purpose prong of this test has rarely posed an obstacle to
public aid programs benefiting private sectarian schools, but the primary effect and
entanglement prongs have operated, in Chief Justice Rehnquist’s term, as a “Catch-22" for
such programs. Under the primary effect test a direct aid program benefiting religious schools
which is not limited to secular use has generally been held unconstitutional because the aid can
be used for the schools’ religious activities and proselytizing. But if a direct program is
limited to secular use, it has often still foundered on the excessive entanglement test, because
the Court has held the government’s monitoring of the secular use restriction to intrude it too
much into the affairs of the religious schools. See Lemon v. Kurtzman, supra. The Court has
for some time been sharply divided on the utility and applicability of the tripartite test and
particularly of the entanglement prong. Nonetheless, the Court still uses the Lemon test; and,
although it is no longer the only test the Court uses in establishment clause cases, the Court
reaffirmed its applicability in its most recent school aid cases. It should also be noted that the
Court has substantially modified both the primary effect test and the entanglement test. See
Agostini v. Felton, 521 U.S. 203 (1997) and Mitchell v. Helms, 120 S.Ct. 2530 (2000).
8 Mitchell v. Helms, 120 S.Ct. 2530 (2000).
9 Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman, supra; Bowen v.
Kendrick, 487 U.S. 589 (1988).
10 See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) (maintenance
and repair grants to sectarian elementary and secondary schools held unconstitutional); Lemon
v. Kurtzman, 403 U.S. 602 (1971) (public subsidy of teachers of secular subjects in sectarian
elementary and secondary schools held unconstitutional); and Wolman v. Walter, 433 U.S.
229 (public subsidy of field trip transportation for children attending sectarian schools held
unconstitutional).
11 See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899) (public grant to Catholic hospital to
provide medical care to the poor upheld); Bowen v. Kendrick, 487 U.S. 589 (1988) (grants
to religiously affiliated agencies to provide pregnancy prevention and care services to
adolescents upheld); and Tilton v. Richardson, 403 U.S. 672 (1971) (grants for the
construction of academic buildings at institutions of higher education, including ones
religiously affiliated, upheld).
12 Agostini v. Felton, 521 U.S. 203 (1997) and Mitchell v. Helms, 120 S.Ct. 2530 (2000).

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constitutional standards governing direct public assistance to religious entities now
appear to be that the aid must be “secular, neutral, and nonideological” in nature and
be limited to secular use by the recipient institution, although the Court has left open
the possibility that other as-yet-unspecified constitutional requirements may exist as
well.13
Indirect Aid
Public aid that is received only indirectly by sectarian institutions — i.e.,
assistance that is received initially by a party other than the religious entity itself in
such forms as tax benefits or vouchers — has, on the other hand, been given greater
leeway by the Court. Such programs still must be religiously neutral in their design
and have been held unconstitutional by the Court where their structure has virtually
guaranteed that the assistance flows largely to pervasively sectarian schools.
However, where the design of the programs has not dictated where the assistance is
channeled but has given a genuine choice between secular and religious providers to
the immediate beneficiary (the taxpayer or voucher recipient), the Court has held the
programs to be constitutional even though pervasively sectarian institutions have
benefited.
Seven decisions by the Court are particularly important in defining the
constitutional parameters of indirect assistance. In two decisions particular programs
of indirect assistance were struck down; in five others particular programs were
upheld.
In Committee for Public Education v. Nyquist, supra, and Sloan v. Lemon14 the
Court found tax benefit and tuition grant programs that were available only to
children attending private elementary and secondary schools to have a primary effect
of advancing religion and, thus, to violate the establishment clause. In Nyquist a state
tuition grant program provided aid to low-income parents of children attending
private elementary or secondary school while another program permitted middle-
income parents of children attending such schools to take a predetermined amount as
a tax deduction for each attendee. In Sloan a state tuition grant program provided aid
to all parents with children attending private elementary and secondary schools. In
both cases the Court found that most of the private schools attended were religiously
13 In both Agostini v. Felton, supra, and Mitchell v. Helms, supra, the Court upheld the aid
programs in question as constitutional on the basis not only that the aid was secular in nature
and was restricted to secular use but also that it was subject to other statutory and regulatory
restrictions. In Agostini the Court noted that the aid program did not result in any government
funds reaching religious schools’ coffers and that it supplemented rather than supplanted
school expenditures. Similarly, in Mitchell the deciding opinion of Justice O’Connor noted
that the aid program had not only those characteristics but also that there was no evidence that
aid had been diverted to religious use and that there were a number of state and local
monitoring activities. In both cases the Court held such factors, along with the secular nature
of the aid and its limitation to secular use by the recipient institutions, to be “sufficient” to
render the program constitutional, although it specifically refrained from saying they were
constitutionally “necessary.”
14 413 U.S. 825 (1973).

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affiliated (85-90 percent), that those schools were pervasively sectarian in nature, and
that the aid was not limited to secular use either by its nature or by statutory
restriction. As a consequence, it concluded that “the effect of the aid is unmistakably
to provide desired financial support for nonpublic, sectarian institutions.”15 “In both
instances,” it said in Nyquist, “the money involved represents a charge made upon the
state for the purposes of religious education.”16
In three other cases involving programs indirectly assisting private sectarian
schools, on the other hand, the Court reached a contrary conclusion. In Mueller v.
Allen17 Minnesota provided a tax deduction to the parents of all elementary and
secondary schoolchildren, both public and private, for a variety of educational
expenses, including private school tuition. Witters v. Washington Department of
Services for the Blind18 involved a vocational rehabilitation grant by Washington to
a blind applicant who wanted to use the grant for study at a Bible college to prepare
for a religious vocation. Zobrest v. Catalina Foothills School District,19 in turn,
involved a Tucson school district’s subsidy of a sign-language interpreter under the
federal “Individuals with Disabilities Education Act”20 for a deaf student attending a
sectarian secondary school. The Court held all three forms of assistance to be
constitutional.
The Court differentiated the tax benefit program in Mueller from the one it had
held unconstitutional in Nyquist by noting that
the deduction is available for educational expenses incurred by all parents,
including those whose children attend public schools and those whose children
attend nonsectarian private schools or sectarian private schools.21 (Emphasis
added.)
The Court also stressed that any aid received by sectarian schools in Minnesota
became “available only as a result of numerous, private choices of individual parents
of school-age children.”22 Moreover, it rejected the argument that the tax deduction
disproportionately benefited religious institutions because parents of children
attending such schools could deduct tuition while parents of public school children
could not, saying that it “would be loath to adopt a rule grounding the
15 Committee for Public Education v. Nyquist, supra, at 783.
16 Id., at 791, quoting from the lower court decision at 350 F.Supp. 655, 675 (1972).
17 463 U.S. 388 (1983).
18 474 U.S. 481 (1986).
19 509 U.S. 1 (1993).
20 20 U.S.C.A. 1401 et seq.
21 Mueller v. Allen, supra, at 397.
22 Id. at 399.

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constitutionality of a facially neutral law on annual reports reciting the extent to which
various classes of private citizens claimed benefits under the law.”23
In Witters, a unanimous decision, the Court again emphasized that in the
vocational rehabilitation program “any aid provided ... that ultimately flows to
religious institutions does so only as a result of the genuinely independent and private
choices of aid recipients.” The Court also stressed that the function of the program
was not to provide support for nonpublic, sectarian institutions and noted that there
was no evidence that “any significant portion of the aid expended under the
Washington program as a whole will end up flowing to religious education.”24
Finally, in Zobrest it underscored that the program at issue was “a general
government program that distributes benefits neutrally to any child qualifying as
`handicapped’ under the IDEA without regard to the `sectarian-nonsectarian or
public-nonpublic nature’ of the school the child attends.” It further reiterated the
factor it had found important in both Mueller and Witters — that “a government-paid
interpreter will be present in a sectarian school only as a result of the private decisions
of individual parents.”25
In addition to these full decisions, the Court has also summarily affirmed two
lower federal court rulings upholding education grants to college students, including
those attending religious colleges, that help them defray the cost of attendance. Both
Smith v. Board of Governors of the University of North Carolina26 and Americans
United for the Separation of Church and State v. Blanton27 involved the federal
23 Id. at 401.
24 Witters v. Washington Department of Services for the Blind, supra, at 487. Justice
Marshall wrote the opinion of the Court in this case and cited the absence of any evidence that
“any significant portion of the aid expended ... will end up flowing to religious institutions”
as an additional factor supporting the program’s constitutionality. Although the decision was
unanimous, five Justices authored or joined in concurring opinions that seemed to disclaim this
factor as having any constitutional significance. All of the concurring opinions stressed that
this case was controlled by the Court’s decision in Mueller v. Allen, supra. Justice Marshall
had been one of the dissenters in that decision and made little mention of Mueller in the
opinion of the Court he authored in Witters. But the five concurring Justices said Mueller
controlled for the reason that “state programs that are wholly neutral in offering educational
assistance to a class defined without reference to religion do not violate the second prong of
the Lemon v. Kurtzman test, because any aid to religion results from the private choices of
individual beneficiaries.” Witters, supra, at 491 (Powell, J., concurring). Mueller, moreover,
expressly discounted the importance of whether parents of children attending private school
received a disproportionate amount of the tax benefit. As a consequence, there appears to be
substantial doubt that the factor of the amount of aid flowing to religious institutions cited by
Justice Marshall is a constitutionally significant factor.
25 Zobrest v. Catalina Foothills School District, supra, at 10.
26 429 F.Supp. 871 (W.D.N.C.), aff’d mem., 434 U.S. 803 (1977).
27 433 F.Supp. 97 (M.D. Tenn.), aff’d mem., 434 U.S. 803 (1977).

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“State Student Incentive Grant” program.28 Under that program the federal
government makes matching grants to the states to subsidize scholarship grants to
undergraduate students “on the basis of substantial financial need.” Both North
Carolina and Tennessee allowed the grants to be used at public and private colleges,
including religiously affiliated colleges. In addition, North Carolina, but not
Tennessee, barred the grants from being used to train for a religious vocation. In both
instances the programs were held not to violate the establishment clause by three-
judge federal district courts, and the Supreme Court summarily affirmed. The district
courts reasoned that the scholarship grant programs did not directly aid the sectarian
purposes and activities of the religiously affiliated colleges attended by some of the
students but did so only incidentally as the result of the choices of the students and
their parents.
Thus, the critical elements distinguishing indirect assistance programs that have
been held constitutional from those struck down under the establishment clause
appear to be the religious neutrality of the beneficiary class and the element of choice.
If the government designs a program so that the initial beneficiaries are selected on
the basis of a religious criterion or a related proxy, or if the universe of choices
available to the initial beneficiaries is dominated by sectarian entities, the program
appears likely to be held unconstitutional on the grounds it has a primary effect of
advancing religion. But if the class of initial beneficiaries includes public as well as
private schoolchildren and/or their parents and if they have a genuine choice among
religious and secular schools about where to use the assistance, the program is likely
to be held not to have an unconstitutional primary effect of advancing religion even
though religious schools may benefit.29
The Court’s recent decision in Mitchell v. Helms, supra, does not appear to have
changed these standards. Indeed, although there was no majority opinion in the case,
all of the Justices appear to have affirmed the same constitutional standards for
indirect aid. Justice Thomas authored an opinion joined by Chief Justice Rehnquist
and Justices Scalia and Kennedy which, in effect, collapsed the distinction between
direct and indirect aid programs and deemed both to be constitutional so long as the
aid is distributed on the basis of religiously neutral criteria. He stated:
28 20 U.S.C.A. 1070c et seq.
29 It seems doubtful that the entanglement aspect of the Lemon test poses a serious obstacle
to educational voucher programs. The Court addressed the issue only in Mueller, and there
it found the tax benefit program not to precipitate any excessive entanglement between the
government and the religious institutions that ultimately benefited from the program. In
general the Court has not found excessive entanglement to exist except where a secular use
restriction on a direct public aid program has required the government to engage in a
“comprehensive, discriminating, and continuing...surveillance” of publicly funded activities
on the premises of pervasively sectarian institutions. See, e.g., Lemon v. Kurtzman, supra
and Meek v. Pittenger, 421 U.S. 349 (1975). But such secular use restrictions are not
constitutionally necessary in indirect assistance programs. In addition, the Court has recently
de-emphasized the risk that religious institutions receiving public aid will use the aid for
religious purposes and, as a consequence, has de-emphasized the need for intrusive
government monitoring of the institutions’ use of the aid. See Mitchell v. Helms, supra.

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As a way of assuring neutrality, we have repeatedly considered whether any
governmental aid that goes to a religious institution does so “only as a result of the
genuinely independent and private choices of individuals.” Agostini, supra, at 226
.... We have viewed as significant whether the “private choices of individual
parents,” as opposed to the “unmediated” will of government, Ball, 473 U.S. at
395, n.13 ..., determine what schools ultimately benefit from the governmental aid
and how much. For if numerous private choices, rather than the single choice of
a government, determine the distribution of aid pursuant to neutral eligibility
criteria, then a government cannot, or at least cannot easily, grant special favors
that might lead to a religious establishment.
120 S.Ct. at 2541 (Thomas, J.).
The other five Justices all supported a continuing constitutional distinction between
direct and indirect aid programs. But they seemed to concur with respect to the
constitutional standards governing indirect aid programs. Justice Souter, joined by
Justices Stevens and Ginsburg, stated:
...[W]e have distinguished between direct aid that reaches religious schools only
incidentally as a result of numerous individual choices and aid that is in reality
directed to religious schools by the government or in practical terms selected by
religious schools themselves. Mueller ...; Witters ...; Zobrest .... In these cases
we have declared the constitutionality of programs providing aid directly to parents
or students as tax deductions or scholarship money, where such aid may pay for
education at some sectarian institutions ... but only as the result of “genuinely
independent and private choices of aid recipients” ....
120 S.Ct. at 2584 (Souter, J., dissenting).
Justice O’Connor, joined by Justice Breyer, similarly stated:
...[W]e decided Witters and Zobrest on the understanding that the aid was
provided directly to students who, in turn, made the choice of where to put that aid
to use .... Accordingly, our approval of the aid in both cases relied to a significant
extent on the fact that “[a]ny aid ... that ultimately flows to religious institutions
does so only as a result of the genuinely independent and private choices of aid
recipients.” Witters, supra, at 487 .... This characteristic of both programs made
them less like a direct subsidy, which would be impermissible under the
Establishment Clause ....
120 S.Ct. at 2558 (O’Connor, J., concurring).
Justice Powell appears to have captured the critical factors governing the
constitutionality of indirect aid programs in his concurring opinion in Witters:
Mueller makes the answer clear: state programs that are wholly neutral in offering
educational assistance to a class defined without reference to religion do not violate
the second part of the Lemon v. Kurtzman test, because any aid to religion results
from the private choices of individual beneficiaries. Thus, in Mueller, we
sustained a tax deduction for certain educational expenses, even though the great
majority of beneficiaries were parents of children attending sectarian schools. We
noted the State’s traditional broad taxing authority ..., but the decision rested
principally on two other factors. First, the deduction was equally available to
parents of public school children and parents of children attending private schools.

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Second, any benefit to religion resulted from the “numerous private choices of
individual parents of school-age children.”30
Recent Judicial Decisions
Several state and federal courts have recently reached conflicting conclusions
about the constitutionality of particular programs said to be voucher and voucher-
related programs. The supreme courts of Wisconsin, Arizona, and Ohio have held
particular programs not to violate the establishment clause (although the Ohio court
found its program to violate a procedural rule of the state constitution), while the U.S.
courts of appeal for the First Circuit and the Sixth Circuit and the Maine Supreme
Court have held to the contrary (although there is considerable doubt that the
program in Maine is a genuine voucher program). In addition, the Vermont Supreme
Court and a trial court in Florida, without addressing the establishment clause issue,
have reached opposite conclusions about whether their state tuition subsidy programs
violate their state constitutions (although the same doubt as to whether Vermont’s
program is a genuine voucher program exists as in the Maine program). Finally, an
appellate court in Pennsylvania has held a locally-initiated tuition subsidy program to
violate state law. The U.S. Supreme Court has so far refused to review any of the
appeals that have been filed on these cases, although it did grant an emergency stay
of a preliminary injunction issued against Ohio’s scholarship program. The cases are
as follows:
(1) Jackson v. Benson. In Jackson v. Benson31 the Wisconsin Supreme Court
held the Milwaukee Parental Choice Program (MPCP) to be constitutional under both
the establishment clause and the Wisconsin Constitution, 4-2. As originally enacted,
the program provided vouchers worth up to $2500 to a small number of poor children
in grades 1-12 in Milwaukee to use to attend private nonsectarian schools in the city.
But in 1995 Wisconsin substantially expanded the program and also began to allow
private religious schools to participate. Upon suit a trial court found that two-thirds
of the private schools participating were pervasively religious; and as a consequence,
it held the expanded program to violate several provisions of the Wisconsin
Constitution. In mid-1997 an appellate court affirmed, 2-1, primarily on the grounds
that the MPCP constituted a benefit to religious schools in violation of a provision of
the state constitution prohibiting any money from being drawn from the treasury “for
the benefit of religious societies, or religious or theological seminaries” (Art. I, § 18).
But in early 1998 the Wisconsin Supreme Court said the MPCP satisfied both that
clause and the establishment clause of the First Amendment because it extended a
benefit to parents on a religion-neutral basis and flowed to sectarian schools “only as
a result of numerous private choices of the individual parents of school-age children.”
The decision was widely regarded as a likely vehicle for Supreme Court review; but
on November 9, 1998, the Court denied review.
(2) Kotterman v. Killian. The Supreme Court of Arizona upheld as
constitutional a program indirectly providing support for private schools, including
30 Witters v. Washington Department of Services for the Blind, supra, at 490-91 (Powell, J.,
concurring).
31 218 Wis.2d 835, 578 N.W.2d 602, cert. den.,525 U.S. 480 (1998).

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sectarian schools, 3-2. Kotterman v. Killian32 reviewed a state program allowing an
annual tax credit up to $500 for contributions to school tuition organizations (STOs).
These private, tax-exempt organizations provide tuition grants to children “to allow
them to attend any qualified school of their parents’ choice.” The tax credit is
disallowed if a taxpayer designates that a donation be used for the benefit of a
dependent, and the organizations are required to provide tuition grants to more than
one school. The court found the tax credit not to violate the establishment clause.
The class of possible beneficiaries, i.e., donors to the school tuition organizations,
included all taxpayers, it said, and not a narrow group defined on the basis of religion.
Moreover, it said, Arizona’s program provided “multiple layers of private choice”:
Important decisions are made by two distinct sets of beneficiaries — taxpayers
taking the credit and parents applying for scholarship aid in sending their children
to tuition-charging institutions. The donor/taxpayer determines whether to make
a contribution, its amount, and the recipient STO .... Parents independently select
a school and apply to an STO of their choice for a scholarship. Every STO must
allow its scholarship recipients to “attend any qualified school of their parents’
choice,” and may not limit grants to students of only one such institution .... Thus,
schools are no more than indirect recipients of taxpayer contributions, with the
final destination of these funds being determined by individual parents.
The decision was appealed to the Supreme Court; but on October 4, 1999, the Court
chose not to review it.
(3) Simmons-Harris v. Goff. In Simmons-Harris v. Goff33 the Supreme Court
of Ohio held the Ohio Pilot Scholarship Program not to violate the establishment
clause but to violate a procedural provision of the Ohio Constitution. The program
provided scholarships worth up to $2500 a year to children of poor families in the
Cleveland public schools which can be used to attend either private schools in the city,
including sectarian schools, or public schools in the school districts around Cleveland.
The trial court found, however, that none of the surrounding public school districts
had chosen to participate in the program and that 80 percent of the private schools
that did participate were pervasively sectarian. Nonetheless, the trial court held the
program to pass muster under the establishment clause and several provisions of the
Ohio Constitution. On May 1, 1997, however, the Ohio Court of Appeals reversed,
2-1,34 stating that the parents did not have a “genuine and independent” choice about
where to use the scholarships and that the program provided “direct and substantial,
non-neutral government aid to sectarian schools” in violation of the establishment
clause and of two provisions of the Ohio Constitution it said were “coextensive” with
the establishment clause.35
32 193 Ariz. 273, 972 P.2d 606 (Ariz. 1999), cert. den., 120 S.Ct. 42 (1999) (Nos. 98-1716
and 98-1718).
33 86 Ohio St. 3d 1, 711 N.E. 2d 203 (1999).
34 No. 96APE08-982 and -991 (Ct. App. Ohio, Tenth District, decided May 1, 1997).
35 Despite this decision, however, the program remained in effect while the appeal was pending
in the Ohio Supreme Court. On July 24, 1997, that court stayed the decision pending
resolution of an appeal.

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CRS-11
On May 25, 1999, however, the Ohio Supreme Court reversed on the
establishment clause issue (with one minor exception) by a margin of 4-3 but still held
the program to violate one provision of the Ohio Constitution, 5-2. On the
establishment clause issue, the court emphasized that the primary beneficiaries of the
program were “children, not sectarian schools,” and that the relationship between
state aid and the schools was “attenuated” because the parents made “independent
decisions to participate in the School Voucher Program and independent decisions as
to which registered nonpublic school to attend.” But while upholding most of the
program, it did strike down one provision on establishment clause grounds. That
provision allowed participating schools to give preference in admission on the basis,
among other reasons, that the students’ parents were “affiliated with any organization
that provides financial support to the school.” The court found that provision to
create a financial “incentive for parents desperate to get their child out of the
Cleveland City School District to ‘modify their religious beliefs or practices’ in order
to enhance their opportunity to receive a ... scholarship” and thus to be
unconstitutional.
Although finding the program generally to meet the requirements of the
establishment clause, the court held it to have been enacted in a manner that violated
the Ohio Constitution. The Ohio Constitution, it noted, mandates that each bill
adopted by the legislature contain no more than one subject (Art. II, § 15D) as one
means of preventing “logrolling.” But the voucher program had been enacted as a
rider to a massive appropriations bill (it constituted 10 pages out of a 1000 page bill).
Finding a “blatant disunity” between the voucher program and the rest of the
appropriations bill and the absence of any “rational reason for their combination,” the
court held the one-subject provision of the state constitution to have been violated.
It delayed the effective date of the decision, however, until June 30, 1999, “in order
to avoid disrupting a nearly completed school year.”
(4) Simmons-Harris v. Zelman and Gatton v. Zelman. In this case the U.S.
Court of Appeals for the Sixth Circuit reached a decision on the Cleveland program
opposite to that of the Ohio Supreme Court, holding the program to violate the
establishment clause.36
On June 29, 1999, the Ohio legislature re-enacted the Pilot Scholarship Program
that had been struck down in Simmons-Harris v. Goff, supra, with virtually no change
as part of the “Education Budget Bill” (House Bill No. 282). On July 20 and 29,
1999, two new suits — Simmons-Harris v. Zelman and Gatton v. Zelman — were
filed challenging the constitutionality of the program, this time in federal district court
rather than state court. On August 24, 1999, the day most private schools opened for
the fall term and the day before the Cleveland public schools opened, Judge Solomon
Oliver granted the plaintiffs’ motion for a preliminary injunction, stating in a lengthy
opinion that “the Plaintiffs have a substantial chance of succeeding on the merits.”37
After a public outcry about the hardship the injunction placed on the voucher children
who were already enrolled in private schools and on the public schools that suddenly
36 Simmons-Harris v. Zelman, 72 F.Supp.2d 834 (N.D. Ohio 1999), aff’d, ___ F.3d ___ (6th
Cir., decided December 11, 2000).
37 54 F.Supp.2d 725 (N.D. Ohio Aug. 24, 1999) (order granting preliminary injunction).

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CRS-12
had to accommodate several thousand new students, Judge Oliver on August 27,
1999, partially stayed the injunction and permitted students who had been enrolled in
the scholarship program in the last school year to continue, but only for one more
semester.38 But on November 5, 1999, the Supreme Court, by a 5-4 margin, granted
an emergency request by Ohio and stayed the preliminary injunction in its entirety,
allowing about 800 new students to participate as well and permitting the voucher
program to continue beyond the first semester.39
On December 20, 1999, Judge Oliver held Ohio’s Pilot Scholarship Program to
violate the establishment clause.40 He found that no out-of-district public schools
were participating in the program, that 82 percent of the private schools which were
participating were church-related, and that 96 percent of the voucher students
attended such schools. Because of this domination by church-affiliated schools, he
concluded that the program was “skewed toward religion” and provided “financial
incentives to attend religious schools.” Scholarship assistance to students is
constitutionally permissible, he said, if it is generally available without regard to the
public-nonpublic or sectarian-nonsectarian nature of the schools to be attended,
because in such circumstances “aid ultimately supports the educational program of a
religious institution only as a result of the private choice of the aid recipient” and, as
a consequence, no “religious indoctrination is attributable to the government.” But
under Ohio’s program, he asserted, “parents and their children do not have a
significant choice between parochial and nonparochial schools .... That choice is
essentially made for them as a function of the fact that almost all participating schools
are religious in nature.” Thus, the court permanently enjoined continuation of the
voucher program. But, on the basis of the consent of all of the parties, Judge Oliver
stayed the injunction pending a final decision of an appeal to the U.S. Court of
Appeals for the Sixth Circuit.
On December 11, 2000, the U.S. Court of Appeals for the Sixth Circuit affirmed
Judge Oliver’s decision, 2-1. The majority found the case to be analogous to, and
controlled by, the Supreme Court’s decision in Committee for Public Education v.
Nyquist, supra (see p. 4). In that case, the appellate court said, the Court had held
unconstitutional a state program reimbursing low-income parents for the cost of
tuition incurred in sending their children to private elementary or secondary schools.
Because 80 percent of those schools were sectarian, the Court said the tuition
reimbursements provided an incentive for parents to send their children to sectarian
schools and had the “unmistakable” effect of providing “desired financial support for
nonpublic, sectarian institutions.”
The Sixth Circuit said “Nyquist governs our result.” Although the program
invited public schools outside of Cleveland to participate, the court stated, none had
chosen to do so. It said that the low level of the scholarship amount – $2500 –
38 54 F.Supp.2d 725 (N.D. Ohio Aug. 27, 1999) (order modifying preliminary injunction).
39 Zelman v. Simmons-Harris, 120 S.Ct. 443 (Nov. 5, 1999) (No. 99A320). The majority
was comprised of Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and
Thomas.
40 Simmons-Harris v. Zelman, 72 F.Supp.2d 834 (N.D. Ohio 1999).

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CRS-13
“limited the ability of nonsectarian schools to participate in the program” but
encouraged sectarian schools to do so, because the latter often had lower tuition
needs. As a consequence, it said, the “choice” afforded the public and private school
participants in the program was “illusory,” and “the program clearly has the
impermissible effect of promoting sectarian schools”:
We find that when, as here, the government has established a program which does
not permit private citizens to direct government aid freely as is their private choice,
but which restricts their choice to a panoply of religious institutions and spaces
with only a few alternative possibilities, then the Establishment Clause is violated
.... There is no neutral aid when that aid principally flows to religious institutions;
nor is there truly “private choice” when the available choices resulting from the
program design are predominantly religious.
Pending further appeal, the children now participating in the program are
expected to be allowed to continue to attend their schools through the rest of this
school year. The case is widely expected to go to the Supreme Court.
(5) Bagley v. Raymond School Department. The Maine Supreme Judicial
Court has held the exclusion of private sectarian schools from a state tuition subsidy
program to be required by the establishment clause, 5-1.41 In rural areas without
public schools Maine provides tuition subsidies to enable the children to attend other
public schools in nearby school districts or private nonsectarian schools. Once a
parent selects a school, the state pays the subsidy directly to the school. Prior to 1981
the program allowed sectarian private schools to participate, but an opinion of the
state attorney general that year ruled their participation to be unconstitutional. In
Bagley v. Raymond School Department several parents in Raymond, Maine, who
wanted to send their children to a Catholic high school challenged the exclusion of
sectarian schools from the program as violating their rights under the establishment,
free exercise, and equal protection clauses of the U.S. Constitution. The Maine
Supreme Court, however, held the exclusion of such schools to be constitutionally
required. Neither the free exercise nor the establishment clause, the court stated, gave
the petitioners any right to a public subsidy for a religious education for their children;
and their disparate treatment passed muster under the equal protection clause, it said,
because the state has a compelling interest in abiding by the establishment clause
prohibition on direct public funding of sectarian schools:
That state funds would flow directly into the coffers of religious schools in Maine
were it not for the existing exclusion cannot be debated .... In the entire history of
the Supreme Court’s struggle to interpret the Establishment Clause it has never
concluded that such a direct, unrestricted financial subsidy to a religious school
could escape the strictures of the Establishment Clause.
The court stated that the legislature might craft a more flexible program but suggested
that such a program would still face “significant problems of entanglement or the
advancement of religion.” The decision was appealed to the Supreme Court; but the
Court on October 12, 1999, chose not to review it.
41 Bagley v. Raymond School Department, 1999 Me. 60, 728 A.2d 127, cert. den., 120 S.Ct.
364 (October 12, 1999) (No. 99-163).

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CRS-14
(6) Strout v. Albanese. In this case the U.S. Court of Appeals for the First
Circuit similarly held Maine’s exclusion of sectarian schools from its tuition subsidy
program to be constitutionally required.42 The facts and the claims were essentially
the same as those in Bagley, the only difference being that this case was initiated by
parents in Lewiston, Maine, who chose to send their children to a sectarian high
school. The federal district court held the parents to have no constitutional right “to
require the taxpayers to subsidize that choice,” and the appellate court affirmed. The
First Circuit, as did the Maine Supreme Court, framed the issue as one involving the
constitutionality of the direct payment of tuition by the state to sectarian schools, and
it reached the same conclusion:
The historic barrier that has existed between church and state throughout the life
of the Republic has up to the present acted as an insurmountable impediment to
the direct payments or subsidies by the state to sectarian institutions, particularly
in the context of primary and secondary schools .... Although the guidance
provided by the Supreme Court has been less than crystalline ..., approving direct
payments of tuition by the state to sectarian schools represents a quantum leap that
we are unwilling to take. Creating such a breach in the wall separating the State
from secular establishments is a task best left for the Supreme Court to undertake.
The court further held the establishment clause to give a religiously affiliated group
no right to secure state subsidies, that the exclusion of sectarian schools did not
violate the parents’ equal protection rights because Maine had a compelling interest
in conforming with the requirements of the establishment clause by excluding such
schools, and that the exclusion did not substantially burden the parents’ right to the
free exercise of religion. The decision was appealed to the Supreme Court; but on
October 12, 1999, the Court chose not to review it.

(7) Chittenden Town School District v. Vermont Department of Education.
Like Maine, Vermont requires school districts that do not maintain a secondary school
to pay tuition for students to attend either public high schools in nearby school
districts or private schools. Also like Maine, the payments are made directly to the
schools after the parents/children have made their choices. When the Chittenden
School Board adopted a policy allowing tuition subsidies to be paid for attendance at
sectarian secondary schools, the state terminated its education aid to the district. The
Chittenden Town School District then sued, seeking a declaratory judgment that
tuition subsidies for students attending sectarian schools are constitutional and an
order restoring the state aid.
In Chittenden Town School District v. Vermont Department of Education, a trial
court held such subsidies to violate both the U.S. and the Vermont constitutions; and
on appeal the Vermont Supreme Court affirmed on state constitutional grounds, 5-0.43
It did not address the establishment clause issue, it said, because “the construction of
the federal constitution ... faces an uncertain future ....” Instead, the Supreme Court
relied on the “compelled support” provision in Chapter I, Article 3, of the Vermont
42 178 F.3d 57 (1st Cir.), cert. den., 120 S.Ct. 329 (October 12, 1999) (No. 99-254).
43 738 A.2d 539 (Vt.), cert. den. sub nom. Andrews v. Chittenden Town School District, 120
S.Ct. 626 (Dec. 13, 1999).

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CRS-15
Constitution mandating that “no person ought to, or of right can be compelled to ...
erect or support any place of worship ..., contrary to the dictates of conscience ....”
On the basis of an examination of the text of the compelled support provision,
its history and application in Vermont, and judicial constructions of identical
provisions in other states constitutions, the appellate court concluded that “the
Chittenden School District tuition-payment system, with no restrictions on funding
religious education, violates Chapter I, Article 3.” “The major deficiency in the
tuition-payment system,” it said, “is that there are no restrictions that prevent the use
of public money to fund religious education.”
The court also stressed that the prohibitions of Chapter I, Article 3, would apply
even if the tuition payments were not made directly to the sectarian schools. It said:
... [T]he United States Supreme Court may well decide that the intervention of
unfettered parental choice between the public funding source and the educational
provider will eliminate any First Amendment objection to the flow of public money
to sectarian education. We cannot conclude, however, that parental choice has the
same effect with respect to Article 3. If choice is involved in the Article 3
equation, it is the choice of those who are being required to support religious
education, not the choice of the beneficiaries of the funding.
Finally, the court rejected the contention that the exclusion of sectarian schools
violated the parents’ right to the free exercise of their religion.
On December 13, 1999, the Supreme Court denied review.
(8) Giacomucci v. Southeast Delco School District. On December 23, 1999,
the Commonwealth Court of Pennsylvania affirmed a trial court decision holding that
a local school district lacked the authority under the Pennsylvania Public School Code
to institute a tuition subsidy program for students attending private schools or out-of-
district public schools.44 The school district had initiated a “School Choice
Enrollment Stabilization Plan” providing subsidies ranging from $250 for kindergarten
students to $1000 for high school students for the express purposes of expanding
parental choice, improving school quality, and alleviating overcrowding in the public
schools. But upon suit challenging the plan on both constitutional and statutory
grounds, a trial court held that the school district had no authority under the School
Code to provide such subsidies.
On appeal the seven-judge Commonwealth Court, without addressing any
constitutional issues, unanimously affirmed (although two concurred only in the
judgment). Emphasizing that a school district is wholly a statutory creation and that
it has no powers other than those conferred by the School Code, the court found that
“the School Code does not expressly authorize the reimbursement of tuition fees” and
that it provided no implied power to the school district to initiate such a plan. The
school district contended that the general directive in the Code that the districts
“establish, equip, furnish, and maintain a sufficient number of elementary public
44 Giacomucci v. Southeast Delco School District, 742 A.2d 1165 (Commonwealth Court
1999).

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CRS-16
schools” and educate its residents between the ages of 6 and 21 implicitly gave it the
power to do so. But the court said that was “far too great a leap of logic.” The
school district also argued that it had implicit authority to take actions not expressly
prohibited by the School Code, but the court held that school districts had implied
authority only as a “necessary implication” of a specific provision of the Code.
Finally, the court examined a number of features of the School Code and concluded
that the General Assembly “did not intend to permit school districts to implement
tuition reimbursement plans.”
The school district chose not to appeal this decision.
(9) Holmes v. Bush. On October 3, 2000, the Florida Court of Appeal for the
First District reversed a trial court decision and held a state voucher program for
students in public schools designated as failing not to violate Article IX, § 1, of the
Florida Constitution.45 The Opportunity Scholarship Program (OSP), enacted in
1999, made students in public schools graded by the state as “failing” eligible for
vouchers to pay for their enrollment in private schools, including sectarian schools,
or other higher-rated public schools. For the initial school year of 1999-2000, two
elementary schools in Excambia County were deemed to be failing, and 57 students
opted to accept vouchers. Fifty-three of the students enrolled in four sectarian private
schools while the other four enrolled in a nonsectarian private school.
Two suits were filed challenging the constitutionality of the program under both
the state and federal constitutions. On March 14, 2000, the Circuit Court for Leon
County, after consolidating the cases and addressing only one of the constitutional
claims, held the OSP to violate Art. IX, § 1, of the Florida Constitution.46 That
provision states that
[i]t is ... the paramount duty of the state to make adequate provision for the
education of all children residing within its borders. Adequate provision shall be
made by law for a uniform, efficient, safe, secure, and high quality system of free
public schools that allows students to obtain a high quality education and for the
establishment, maintenance, and operation of institutions of higher learning and
other public education programs that the needs of the people may require.
The trial court said that this section prescribes both the objective of making adequate
provision for the education of all children within the state and the manner in which
that duty is to be accomplished, namely, by means of a “uniform, efficient, safe,
secure, and high quality system of free public schools.” Moreover, it said, that is the
exclusive means the constitution allows for carrying out the state’s duty. “[A]
constitutional prescription of the manner in which a constitutional objective is to be
carried out does not allow the State to proceed other than in the constitutionally
prescribed manner,” it stated. As a consequence, it concluded, Art. IX, § 1, prohibits
the state from paying tuition for students to attend private schools.
45 Bush v. Holmes, Case No. 1D00-1121 (Fla. Dist. Ct. App., decided October 3, 2000).
46 Holmes v. Bush, Case No. CV 99-3370 (Cir. Ct. Leon County, decided March 14, 2000).

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CRS-17
On appeal the Court of Appeal for the First District reversed, finding that the
trial court had misapplied the maxim expressio unius est exclusio alterius (to express
or include one thing implies the exclusion of the alternative). Article IX, § 1, it said,
mandates that the state “make adequate provision for the education of all children”
in Florida. But the appellate court held that it does not prescribe an exclusive means:
“[S]ection 1 does not unalterably hitch the requirement to make adequate provision
for education to a single, specified engine, that being the public school system.” In
support of that conclusion, the court emphasized that Art. IX,§ 1, did not explicitly
bar tuition subsidies or explicitly direct that its mandate could be carried out only by
means of public schools. It further noted that prior judicial decisions had held findings
of implicit prohibitions in the constitution to be generally disfavored and that the
legislature had in the past provided subsidies for certain “exceptional” students to
attend private schools when the public schools lacked the necessary facilities or
personnel. Consequently, the appellate court overturned the trial court’s decision on
this issue and remanded the case to the trial court for further proceedings on the
additional constitutional claims that had been raised against the program under other
provisions of the Florida Constitution and the establishment clause.
The appellees in the case have stated that they intend to appeal the decision to
the Florida Supreme Court.

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