Order Code RL30165
Report for Congress
Received through the CRS Web
Education Vouchers:
Constitutional Issues and Cases
Updated May 20, 2003
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
On May 19, 2003, the Supreme Court agreed to review a lower federal court
decision – Davey v. Locke – which held the free exercise clause of the First
Amendment to be violated by a provision in a state constitution barring a state
scholarship from being used for a theological major at a religious college. Such “no
religious use” provisions exist in a number of state constitutions and have become
the focus of a number of suits in the wake of the Supreme Court’s 2002 decision in
Zelman v. Simmons-Harris. In Zelman the Court, by a 5-4 margin, upheld the
constitutionality under the establishment of religion clause of the First Amendment
of a school voucher program that gave tuition assistance to poor children in failing
public schools in Cleveland to enable them to attend private schools in the city,
notwithstanding that most of the schools were religious in nature. In so doing the
Court substantially loosened the constraints that previously applied to voucher
programs under the establishment clause and shifted the attention of voucher
advocates and opponents to state constitutional provisions that have been, or might
be, construed to prohibit such programs. In Davey v. Locke the U.S. Court of
Appeals for the Ninth Circuit concluded that such a provision violates the free
exercise clause, and it is that issue that the Supreme Court has now agreed to
examine. The Court will hear and decide the case during the Term that begins in
October 2003.
Supreme Court decisions prior to Zelman had evaluated the constitutionality of
voucher programs primarily on the basis of whether the recipients of the vouchers
had a genuine choice among secular and religious options about where to use them.
If the available educational choices were predominantly religious in nature, the Court
held the program to violate the establishment clause. If there were a number of
secular as well as religious options available, the Court held the programs to meet
constitutional requirements. In Zelman the Court substantially loosened this genuine
choice criterion by holding that the available universe of choice includes not only the
private schools where the vouchers themselves can be redeemed but also the full
range of public school options available to parents.
Although Zelman appears to resolve most of the questions concerning the
constitutionality of school voucher programs under the establishment clause, legal
questions remain with respect to the effect of the more strict church-state provisions
of some state constitutions and whether those state limitations are consistent with
either the free exercise or equal protection clauses of the U.S. Constitution. State and
lower federal courts have reached conflicting decisions on these issues so far. But,
as noted, the Supreme Court has now agreed to review a lower court decision on the
matter.
This report details the constitutional standards that currently apply to indirect
school aid programs and summarizes all of the pertinent Supreme Court decisions,
with particular attention to Zelman. It also summarizes the pending case of Davey
v. Locke and other recent and ongoing state and lower federal court cases concerning
vouchers. The report will be updated as events warrant.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Direct Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indirect Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(1) Precursors to Zelman v. Simmons-Harris . . . . . . . . . . . . . . . . . . . . 6
(2) Zelman v. Simmons-Harris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(3) Current Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
State Constitutional Limitations on Voucher Programs . . . . . . . . . . . . . . . 15
(1) Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(2) Davey v. Locke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(3) Other pending cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(A) Holmes v. Bush. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(B) Anderson v. Town of Durham. . . . . . . . . . . . . . . . . . . . . . . . . 20
(C) Becker v. Granholm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
(D) Naveschuck v. Rutland Town School Board . . . . . . . . . . . . . 21
(E) Colorado PTA v. Owens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Other Decisions of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(1) Jackson v. Benson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(2) Kotterman v. Killian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(3) Simmons-Harris v. Goff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(4) Bagley v. Raymond School Department . . . . . . . . . . . . . . . . . . . . 24
(5) Strout v. Albanese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(6) Chittenden Town School District v. Vermont Department of Education
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(7) Giacomucci v. Southeast Delco School District . . . . . . . . . . . . . . 27
(8) Toney v. Bower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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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 children to private
schools, including sectarian institutions, has been a recurring and politically charged
issue at both the federal and state levels for at least the past two decades. Congress
has repeatedly been embroiled in the issue,1 and the 107th Congress enacted into law
a bill that extended the existing college education IRA (now called the Coverdell
Education Savings Account) to the elementary and secondary school level.2
President Bush has proposed additional school voucher and tax benefit initiatives in
1 For example, a number of efforts to enact a school voucher program and to extend tax
benefits to the elementary and secondary education level were made during the Clinton
Administration, but all failed to get through both houses or were vetoed by the President.
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 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 more detailed information on the consideration of school choice proposals in the
104th-107th Congresses and on the pertinent policy arguments, see CRS Issue Brief IB98035,
School Choice: Current Legislation, by David Smole, and CRS Report RL30805, School
Choice: Legislative Action by the 104th through 106th Congresses, by Wayne Riddle and Jim
Stedman.
2 P.L. 107-16, § 401 (June 7, 2001); 115 Stat. 57; 26 U.S.C.A. § 530. Education IRAs may
now be established and expended on a tax-free basis for the costs of tuition, fees, books,
room and board, uniforms, transportation, computer hardware and software, and Internet
access at both public and private elementary and secondary schools as well as for college
expenses.

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his budget for fiscal 2004.3 Several states have also instituted voucher programs
either for specific localities or on a state-wide basis.4
A key issue in the debates on educational vouchers5 has been whether the
inclusion of sectarian schools in the universe of schools which students might attend
violates the part of the First Amendment to the Constitution providing that “Congress
shall make no law respecting an establishment of religion ....”6 In a number of
decisions between 1973 and 1993 addressing the constitutionality of programs
indirectly aiding religious schools – Committee for Public Education v. Nyquist,
Sloan v. Lemon, Mueller v. Allen, Witters v. Washington Department of Social
Services for the Blind, and Zobrest v. Catalina Foothills Public Schools -- the
Supreme Court had seemed to suggest that a voucher program would pass
constitutional muster only if its benefits were made available on a religion-neutral
basis and if the initial beneficiaries had a genuine choice between secular and
religious schools about where to use the assistance. However, these criteria were not
wholly transparent, and as a consequence, state and lower federal courts that
subsequently wrestled with the issue often reached contradictory results. In the past
decade, for instance, conflicting judicial decisions were handed down on the
constitutionality of particular voucher and voucher-related programs under the
establishment clause in the states of Wisconsin, Arizona, Maine, and Ohio.
The U.S. Supreme Court repeatedly bypassed opportunities to review these state
and lower court decisions. But on June 27, 2002, the Court in Zelman v. Simmons-
Harris7 resolved most issues related to how the foregoing criteria ought to be applied.
In that case the Court upheld as constitutional, 5-4, a voucher program providing
assistance to poor children in Cleveland’s public schools to enable them to attend
private schools in the city. The Court did so notwithstanding the facts that most of
the private schools in the city (more than 80%) were religious in nature and most of
the voucher children (96%) attended those schools. In so doing the Court
substantially loosened the strictures the establishment clause had previously been
construed to place on public aid to religious institutions.
As a consequence, attention has now shifted to the provisions of a number of
state constitutions which have been construed to prohibit voucher programs.
3 See CRS Issue Brief IB98035, School Choice: Current Legislation, by David Smole
4 Wisconsin has a voucher plan applicable only to Milwaukee, and Ohio has one for
Cleveland. In 1999 Florida adopted a state-wide voucher plan. 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.
5 This report uses the term “voucher” broadly to mean not only tuition subsidy and tuition
grant programs but also tax benefit proposals.
6 Although worded as limitations on what Congress can do, both the establishment and free
exercise clauses of the First Amendment have 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) and
Cantwell v. Connecticut, 310 U.S. 296 (1941).
7 536 U.S. 639 (2002).

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Sometimes called “little Blaine amendments” (see infra n. 54), these state
constitutional provisions are worded in various ways and are seemingly more strict
than the establishment of religion clause. Indeed, voucher programs in Florida,
Vermont, and Washington have been held to violate such provisions. But voucher
advocates contend that these provisions violate the free exercise of religion and equal
protection clauses of the U.S. Constitution.
It was thought that this issue might percolate in the state and lower federal
courts for a time before the Supreme Court chose to address the issue. But the Court
has, instead, now agreed to review such a case in its next Term, which begins in
October 2003. In Davey v. Locke8 the U.S. Court of Appeals for the Ninth Circuit
held the free exercise clause to be violated by a provision of the Washington
Constitution which had been construed to bar a student from using a state scholarship
to pursue a degree in theology at a religious school. On May 19, 2003, the Supreme
Court granted a petition for certiorari to review the decision. As a consequence,
several pending state and lower federal court cases challenging the constitutionality
of restrictive provisions of state constitutions or seeking to use such provisions to
invalidate state voucher programs likely will be put on hold pending the Supreme
Court’s decision in Locke.
The following sections summarize the standards articulated by the Supreme
Court under the establishment of religion clause for public aid programs that provide
assistance directly to sectarian schools and other religious entities and, in greater
detail and with special attention to Zelman, for programs that provide assistance to
sectarian schools indirectly (i.e., by means of voucher and tax benefit programs). The
report also summarizes the pending case of Locke v. Davey, other pending cases
involving the constitutionality of state restrictions on voucher programs, and
decisions on voucher and voucher-related programs that were handed down prior to
Zelman. This report will be updated as events warrant.
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.”9 Thus, the
Court has held that public assistance which flows directly to religious institutions in
the form of grants or cooperative agreements must be limited to aid that is “secular,
neutral, and nonideological....”10 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
8 299 F.3d 748 (9th Cir. 2002), cert. granted, 71 U.S.L.W. ___ (May 19, 2003) (No. 02-
1315).
9 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).
10 Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).

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activities or proselytizing.11 Direct assistance, the Court has held, cannot be used for
religious indoctrination.12
Thus, religious schools and other entities are not automatically disqualified from
participating in direct public aid programs. But the no-religious-indoctrination
restriction on such aid means that a religious organization’s secular functions and
activities must be separable from its religious functions and activities. As a
consequence of that requirement, the Court until recently 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.13 That construction of
the establishment clause was a particular obstacle for direct aid to religious
elementary and secondary schools, because the Court generally deemed such schools
to fall within the pervasively sectarian category.14 For other entities such as
11 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 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. The Court has, however, made both the primary effect and entanglement tests less
stringent. The primary requirements now are that the aid itself be secular in nature, that it
be distributed on a religiously neutral basis, that it not subsidize religious indoctrination, and
that it not lead to excessive entanglement. See Agostini v. Felton, 521 U.S. 203 (1997) and
Mitchell v. Helms, 530 U.S. 793 (2000).
12 Mitchell v. Helms, 530 U.S. 793 (2000).
13 Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman, supra; Bowen
v. Kendrick, 487 U.S. 589 (1988).
14 See, e.g., Committee for Public Education v. Nyquist, supra (maintenance and repair
grants to sectarian elementary and secondary schools held unconstitutional); Lemon v.
Kurtzman, supra (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).

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religiously affiliated hospitals, social welfare agencies, and colleges, the Court
presumed to the contrary and, consequently, allowed a greater degree of direct aid.15
But the Court has recently abandoned that presumption regarding sectarian
elementary and secondary schools.16 Pervasive sectarianism, in other words, is no
longer a constitutionally preclusive criterion for direct aid to such entities. The basic
constitutional standards governing direct public assistance to religious entities,
including schools, now appear to be that the aid must be “secular, neutral, and
nonideological” in nature, distributed on a religion-neutral basis, not be used for
religious indoctrination, and not precipitate excessive entanglement between
government and the institution benefitted (although the Court has left open the
possibility that other as-yet-unspecified constitutional requirements may exist as
well).17
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 elementary and
secondary schools. However, where the design of the programs has not dictated
where the assistance is channeled but has given a genuine private choice between
15 See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899) (public grant to Catholic hospital to
provide medical care to the poor upheld); 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); and Bowen v. Kendrick, 487 U.S. 589 (1988) (grants to
religiously affiliated agencies to provide pregnancy prevention and care services to
adolescents upheld).
16 Agostini v. Felton, supra, and Mitchell v. Helms, supra.
17 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, made available on a religion-neutral basis, and barred from use for purposes of
religious indoctrination 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 actually reaching religious schools’ coffers and that it supplemented
rather than supplanted school expenditures. Similarly, in Mitchell the concurring (and
decisive) opinion of Justice O’Connor noted that the aid program had not only the foregoing
characteristics but also that there was no evidence that aid had actually been diverted to
religious use and that there were a number of state and local monitoring activities to guard
against that possibility. It also seemed important in Mitchell that the direct aid in question
was of an in-kind nature (educational materials and equipment). There was no majority
opinion in that case, but the three opinions filed all expressed doubt about the
constitutionality of direct money grants to pervasively sectarian institutions. In any event,
both Agostini and Mitchell held such additional factors as those cited, along with the nature
of the aid, its mode of distribution, and the prohibition on its use for religious indoctrination,
to be “sufficient” to render the program constitutional, although it specifically refrained
from saying the additional factors were constitutionally “necessary.”

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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. Moreover, in the recent decision
of Zelman v. Simmons-Harris, supra, the Court legitimated most school voucher
programs by holding that, for constitutional purposes, the universe of choices
available to voucher recipients is not limited to the entities where the vouchers can
be used but includes the full range of educational choices available to them, i.e., a
voucher program can be constitutional even if most of the private schools where they
can be redeemed are religious in nature.
(1) Precursors to Zelman v. Simmons-Harris.
Prior to its decision on
June 27, 2002, in Zelman v. Simmons-Harris, supra, the Court had handed down
seven decisions relevant to the question of the constitutional parameters governing
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. Lemon18 in
1973 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 specified amounts of tuition reimbursement
to low-income parents of children who incurred tuition costs in sending their children
to private elementary or secondary school, while in Sloan tuition reimbursements
were provided to all parents who incurred tuition costs in sending their children to
such schools. In addition, a related program in Nyquist permitted higher-income
parents of children attending such schools to take an amount specified in the statute
as a tax deduction for each attendee without regard to the parents’ actual
expenditures; the specified deduction gradually declined as income increased.
In both cases the Court found that most of the private schools attended were
religiously affiliated (85-90%), 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.”19 “In both instances,” it said in Nyquist, “the money involved represents
a charge made upon the state for the purposes of religious education.”20 Rather than
providing a per se immunity from constitutional challenge, the Court said, “the fact
that the aid is disbursed to parents rather than to the schools is only one among many
factors to be considered.”21 In these cases the tuition grant and tax subsidy programs,
the Court asserted, were both an encouragement to parents to send their children to
nonpublic, mostly religious schools and a reward for doing so. Moreover, it said, to
allow the factor that the aid was disbursed to the parents rather than directly to the
schools to have controlling significance would “provide a basis for approving
18 413 U.S. 825 (1973).
19 Committee for Public Education v. Nyquist, supra, at 783.
20 Id., at 791, quoting from the lower court decision at 350 F.Supp. 655, 675 (1972).
21 Id. at 783.

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through tuition grants the complete subsidization” of all religious schools ... – a result
wholly at variance with the Establishment Clause.”22
In a pregnant footnote in Nyquist, however, the Court stated that “we need not
decide whether the significantly religious character of the statute’s beneficiaries
might differentiate the present cases from a case involving some form of public
assistance (e.g., scholarships) made available generally without regard to the
sectarian-nonsectarian, or public-nonpublic nature of the institution benefited.”23
Several subsequent cases presented the Court with precisely that kind of public
assistance, and in each instance the Court found the program in question to be
constitutional. In the process it refined the criteria governing the constitutionality of
indirect aid programs.
Mueller v. Allen24 concerned a Minnesota tax deduction given 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 Blind25 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; the program provided similar grants to
other blind applicants for a wide variety of job training and educational purposes.
Zobrest v. Catalina Foothills School District,26 in turn, involved a Tucson school
district’s subsidy of a sign-language interpreter under the federal “Individuals with
Disabilities Education Act”27 for a deaf student attending a sectarian secondary
school; similar assistance was available to disabled students in public schools and
nonsectarian private schools. The Court held all three forms of assistance not to
violate the establishment clause.
The Court differentiated the tax benefit program in Mueller from the one it had
held unconstitutional in Nyquist by emphasizing that it was a genuine tax deduction
and 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.28
The Court further stressed that any aid received by sectarian schools in Minnesota
became “available only as a result of numerous, private choices of individual parents
22 Id. at 782, n. 38.
23 Id.
24 463 U.S. 388 (1983).
25 474 U.S. 481 (1986).
26 509 U.S. 1 (1993).
27 20 U.S.C.A. §§ 1401 et seq.
28 Mueller v. Allen, supra, at 397.

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of school-age children.”29 Moreover, it rejected the argument that the tax deduction
was unconstitutional because it disproportionately benefited religious institutions.
Parents of children attending private schools, most of which were religious, could
deduct tuition while parents of public school children could not; and thus, it was
contended, the tax deduction served primarily to subsidize attendance at such
schools. The Court said that it “would be loath to adopt a rule grounding the
constitutionality of a facially neutral law on annual reports reciting the extent to
which various classes of private citizens claimed benefits under the law.”30 The
decision was 5-4.
In Witters, a unanimous decision, the Court again emphasized that in the
vocational rehabilitation program “any aid provided is `made available without
regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution
benefited’” and that “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.”31 The program, the Court stated, did not have the purpose of providing
support for nonpublic, sectarian institutions; created no financial incentive for
students to undertake religious education; and gave recipients “full opportunity to
expend vocational rehabilitation aid on wholly secular education.”32 “In this case,”
the Court found, “the fact that the aid goes to individuals means that the decision to
support religious education is made by the individual, not by the State.”33 Finally,
the Court concluded, 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.”34
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
29 Id. at 399.
30 Id. at 401.
31 Witters v. Washington Department of Services for the Blind, supra, at 487.
32 Id. at 488.
33 Id.
34 Id. Notwithstanding the unanimity of the decision, five of the Justices authored or joined
in concurring opinions that disclaimed the constitutional significance of the amount of aid
that ended up in the coffers of religious schools. Justice Marshall, who wrote the opinion
of the Court in this case, 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. But all of the concurring opinions stressed
instead that this case was controlled by the Court’s decision in Mueller v. Allen, supra, 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). They placed no reliance on
the factor of the substantiality of the aid flowing to religious institutions cited by Justice
Marshall. Justice Marshall, it might be noted, had been one of the dissenters in Mueller and
made virtually no reference to that case in his opinion for the Court in Witters.

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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.”35 The IDEA, the Court said, “creates no financial
incentive for parents to choose a sectarian school; and as a consequence, it
concluded, “an interpreter’s presence there cannot be attributed to State
decisionmaking.”36 As in Mueller, the Court’s decision was 5-4.
In addition to these full decisions subsequent to Nyquist and Sloan, the Court
also summarily affirmed two lower federal court rulings upholding education grants
to college students, including those attending religious colleges, that helped them
defray the cost of attendance. Both Smith v. Board of Governors of the University
of North Carolina37 and Americans United for the Separation of Church and State
v. Blanton38 involved the federal “State Student Incentive Grant” program.39 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. In summarily affirming these decisions, of
course, the Supreme Court adopted only the lower courts’ conclusions regarding the
constitutionality of the programs and not their reasoning.
Thus, prior to Zelman the critical elements distinguishing indirect assistance
programs that were held constitutional from those struck down under the
establishment clause appear to have been that the purpose of the programs was not
to provide aid to sectarian schools, that the initial recipients of the vouchers or other
benefits were not selected on a religious basis, and that they had a genuine choice
about whether to apply the vouchers or other assistance to education at religious or
secular schools. In other words, if the government designed a voucher program so
that the initial beneficiaries were selected on the basis of a religious criterion or a
related proxy (such as enrollment in private elementary or secondary schools, most
of which were sectarian), or if the universe of choices available to the initial
beneficiaries was dominated by sectarian schools, the Court would hold the program
unconstitutional on the grounds it had a primary effect of advancing religion. But if
the class of initial beneficiaries included public as well as private schoolchildren and
35 Zobrest v. Catalina Foothills School District, supra, at 10.
36 Id.
37 429 F.Supp. 871 (W.D.N.C.), aff’d mem., 434 U.S. 803 (1977).
38 433 F.Supp. 97 (M.D. Tenn.), aff’d mem., 434 U.S. 803 (1977).
39 20 U.S.C.A. § 1070c et seq.

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CRS-10
their parents and if they had a genuine choice among religious and secular schools
about where to use the assistance, the Court would hold the program not to have an
unconstitutional primary effect of advancing religion even though religious schools
benefited, and sometimes disproportionately.40
Justice Powell seemed to capture the critical factors governing the
constitutionality of indirect aid programs prior to Zelman 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. Second, any benefit to religion resulted from the
“numerous private choices of individual parents of school-age children.”41
(2) Zelman v. Simmons-Harris.42 In Zelman v. Simmons-Harris, as noted
above, the Court upheld as constitutional the Ohio Pilot Scholarship Program. That
program had been enacted in partial response to a 1995 federal district court decision
directing the state to take control of Cleveland’s failing public schools. The program
had two components. The main component provided scholarships to families with
children in grades K-8 in Cleveland’s public schools to enable those who chose to do
so to send their children to private schools in the city or to public schools in the
adjoining suburbs. Preference was given to students from families with incomes
below 200%of the poverty line, and the scholarship could pay could pay 90% of the
private or out-of-district public school’s tuition charge up to a maximum of $2250.
For students from families with higher incomes, the scholarship was capped at $1875
40 The Court gave little discussion and no apparent reliance to the entanglement aspect of
the Lemon test in these cases. It 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 the Court has held such secular use restrictions and the
consequent close monitoring not to be constitutionally necessary in indirect assistance
programs. In addition, even in direct aid programs 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.
41 Witters v. Washington Department of Services for the Blind, supra, at 490-91 (Powell,
J., concurring).
42 536 U.S. 639 (2002). For a more thorough summary of Zelman, see CRS Issue Brief
IB10092, Supreme Court: Church-State Cases, 2001-2002 Term.

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CRS-11
and could pay up to 75% of the tuition charge. In the second component of the
program, eligible students who chose to remain in public school could receive up to
$360 to pay for special tutorial assistance.
In the 1999-2000 school year 3761 students participated in the voucher program,
and more than 2000 chose to receive tutorial assistance grants. Because no suburban
public schools chose to participate in the voucher program, all of the voucher
students attended private schools in the city. Forty-six of the 56 private schools
participating in the program that year (82%) were religiously-affiliated; and 96 %of
the scholarship students were enrolled in those schools.
The program had previously been held by the Ohio Supreme Court to pass
muster under the establishment clause but to have been enacted in violation of a
procedural requirement of the Ohio Constitution.43 After it was re-enacted without
the procedural flaw, 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. Both the federal district court and, on
appeal, the U.S. Court of Appeals for the Sixth Circuit held the program to violate
the establishment clause.44
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. Moreover, it said that the low level of the scholarship amount –
$2500 – “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
43 Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 711 N.E.2d 203 (1999).
44 Simmons-Harris v. Zelman, 72 F.Supp.2d 834 (N.D. Ohio 1999), aff’d, 234 F.3d 945 (6th
Cir. 2000), reversed, 536 U.S. 639 (2002). The case proceeded in a somewhat tortured
fashion. The two suits were filed on July 20 and July 29, 1999, and were consolidated by
the trial court. On August 24, 1999, the day most private schools opened for the fall term,
the trial court 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.”
Simmons-Harris v. Zelman, 54 F.Supp.2d 725 (N.D. Ohio Aug. 24, 1999) (order granting
preliminary injunction). But 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 had to accommodate several thousand new students led the trial court on August
27, 1999, to partially stay the injunction and permit students who had been enrolled in the
scholarship program in the last school year to continue but new voucher students to continue
for only one semester. Simmons-Harris v. Zelman, 54 F.Supp.2d 725 (N.D. Ohio Aug. 27,
1999) (order modifying preliminary injunction). An emergency request by Ohio to the U.S.
Supreme Court resulted in a stay of the preliminary injunction in its entirety on November
5, 1999. Zelman v. Simmons-Harris, 528 U.S. 943 (1999). That decision was by the same
5-4 margin as the Court’s ultimate decision on the merits.

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CRS-12
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.
On June 27, 2002, the Supreme Court reversed the Sixth Circuit and upheld the
scholarship program as constitutional, 5-4.45 Chief Justice Rehnquist, writing for the
Court, said that there was no dispute that the Pilot Scholarship Program served the
“valid secular purpose of providing educational assistance to poor children in a
demonstrably failing public school system.” The key question, he stated, was
whether it had the forbidden effect of advancing or inhibiting religion; and the
pertinent criteria for that question, he said, had been established in three prior cases
involving indirect assistance to sectarian schools -- Mueller v. Allen, Witters v.
Washington Department of Services for the Blind, and Zobrest v. Catalina Foothills
School District. In each of these cases, he asserted, the Court had asked whether the
aid was distributed to the initial recipients on a religion-neutral basis and whether
those beneficiaries had a “true private choice” about whether to use the aid at
religious or secular schools:
Mueller, Witters, and Zobrest ... make clear that where a government aid program
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, the program is
not readily subject to challenge under the Establishment Clause.46
Applying these criteria to the Cleveland program, the Court held the Pilot
Scholarship Program to provide “educational assistance directly to a broad class of
individuals defined without reference to religion, i.e., any parent of a school-age child
who resides in the Cleveland School District” (with a preference given low-income
families).47 It held as well that “the program challenged here is a program of true
private choice.”48
The latter ruling was the most controversial aspect of the decision and a major
reason for the dissent by four Justices. In all of its prior cases concerning indirect
assistance, the Court had analyzed the choice issue within the context of the
challenged program, i.e., it had asked whether the initial recipients of the aid had a
broad and unfettered choice among a number of religious and secular options about
where to use the aid. In Zelman the Court broadened its analysis of the options
available to include not only where the scholarships themselves could be used – i.e.,
private schools in Cleveland, most of which were religious – but all of the
educational alternatives available to parents. The Chief Justice stated:
45 Joining in the majority were Chief Justice Rehnquist and Justices O’Connor, Scalia,
Kennedy, and Thomas. Justices Souter, Stevens, Breyer, and Ginsburg dissented.
46 Zelman v. Simmons-Harris, supra, at 650.
47 Id.
48 Id.

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CRS-13
There ... is no evidence that the program fails to provide genuine opportunities
for Cleveland parents to select secular educational options for their school-age
children. Cleveland schoolchildren enjoy a range of educational choices: They
may remain in public school as before, remain in public school with publicly
funded tutoring aid, obtain a scholarship and choose a religious school, obtain
a scholarship and choose a nonreligious private school, enroll in a community
school, or enroll in a magnet school. That 46 of the 56 private schools now
participating in the program are religious schools does not condemn it as a
violation of the Establishment Clause. The Establishment Clause question is
whether Ohio is coercing parents into sending their children to religious schools,
and that question must be answered by evaluating all of the options Ohio
provides Cleveland schoolchildren, only one of which is to obtain a program
scholarship and then choose a religious school.49
Consequently, the Chief Justice concluded for the Court:
...[T]he Ohio program is entirely neutral with respect to religion. It provides
benefits directly to a wide spectrum of individuals, defined only by financial
need and residence in a particular school district. It permits such individuals to
exercise genuine choice among options public and private, secular and religious.
The program is therefore a program of true private choice. In keeping with an
unbroken line of decisions rejecting challenges to similar programs, we hold that
the program does not offend the Establishment Clause.50
In dissent Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer,
termed the Court’s decision a “dramatic departure from basic Establishment Clause
principles” that reduced the criteria for evaluating the constitutionality of a voucher
program to “verbal formalism” and undermined “every objective supposed to be
served” by the establishment clause. In particular, he charged, the Court’s analysis
of the choice issue “ignores the reason for having a private choice enquiry in the first
place.” That enquiry properly asks, he said, whether the parent or student that
initially receives the public aid is free to channel it in either a secular or religious
direction. But the majority eliminated the utility of that enquiry, he claimed, by
bringing into the equation public spending on public magnet and community schools
“that goes through no private hands and could never reach a religious school under
any circumstance”:
If “choice” is present whenever there is any educational alternative to the
religious school to which vouchers can be endorsed, then there will always be a
choice and the voucher can always be constitutional, even in a system in which
there is not a single private secular school as an alternative to the religious
school.51
Justice Souter further asserted that by allowing “substantial amounts of tax
money” to be used to systematically underwrite religious practice and indoctrination,
the Court’s decision undermined the three major purposes of the establishment
49 Id. at 651.
50 Id.
51 Id. at 665 (Souter, J., dissenting).

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CRS-14
clause. He claimed such aid violates respect for freedom of conscience by
compelling individuals to subsidize religious instruction contrary to their own beliefs,
compromises the integrity and independence of religious institutions by inevitably
bringing government regulation in its wake, and threatens social conflict along
religious lines as religious sects begin to compete for public subsidies and religious
differences become the subject of public debate. “The reality,” Justice Souter
concluded, “is that in the matter of educational aid the Establishment Clause has
largely been read away.”52
(3) Current Standards. In sum, then, the Supreme Court now interprets the
establishment of religion clause to place only limited restraints on voucher programs
that indirectly benefit sectarian schools. Since Nyquist it has consistently asked
whether such programs serve a secular purpose and whether they have a primary
effect of advancing religion; and under the latter test it has consistently asked
whether the aid is distributed to its initial beneficiaries on a religiously neutral basis
and whether the initial beneficiaries have a genuine choice among religious and
secular options in using the aid. But Zelman makes clear that the Court no longer
examines the choice issue in terms of the range of options where the voucher aid
itself can be used. Instead, the Court now analyzes whether the initial beneficiaries
have a genuine, non-coerced choice among religious and secular options by looking
at all of the educational options available. Given that universe of choice, Justice
Souter’s charge that Zelman legitimates voucher programs even in systems “in which
there is not a single private secular school as an alternative to a religious school” may
well be true.
Moreover, to the extent that any doubt still existed, Zelman makes clear that the
amount of aid that finds its way to religious schools in a voucher program is of no
constitutional relevance. That conclusion seemed first to be adopted by the Court in
Mueller and was then affirmed by five Justices in concurring opinions in Witters.
The majority in Zelman reiterated the point: “The constitutionality of a neutral
educational aid program simply does not turn on whether and why ... most recipients
choose to use the aid at a religious school.”53
Voucher programs that are adopted for the purpose of providing financial
assistance to private religious schools or that confine their benefits exclusively to the
parents of children already in private religious schools, as in Nyquist, may still be
unconstitutional under the Court’s current standards. But Zelman seems to make
clear that few other establishment clause inhibitions now apply to such programs.
52 Id. at 670.
53 Id. at 652.

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CRS-15
State Constitutional Limitations on Voucher Programs
(1) Overview. The constitutions of a number states contain church-state
provisions that in many instances are more strict that the establishment clause of the
First Amendment. Sometimes called “little Blaine amendments,”54 these provisions
express a “no aid to religion” principle in a variety of ways, as the following
examples illustrate:
“No money shall be paid from public funds for the direct benefit of any religious
or other private educational institution.” Alaska Constitution, Art. I, § 7.
“No tax shall be laid or appropriation of public money made in aid of any church,
or private or sectarian school ....” Arizona Constitution, Art. 9, § 10.
“No revenue of the state or any political subdivision thereof shall ever be taken
from the public treasury directly or indirectly in aid of any church, sect, or
religious denomination or in aid of any sectarian institution.” Florida
Constitution, Art. I, § 3.
“No public monies or property shall be appropriated or paid or any public credit
utilized, by the legislature or any other political subdivision or agency of the state
directly or indirectly to aid or maintain any private, denominational or other
nonpublic, pre-elementary, elementary, or secondary school. No payment, credit,
tax benefit, exemption or deductions, grant or loan of public monies or property
shall be provided, directly or indirectly, to support the attendance of any student
or the employment of any person at any such nonpublic school ....” Michigan
Constitution, Art. 8, § 2.
“No public funds of any kind or character whatever, State, County, or Municipal,
shall be used for sectarian purpose.” Nevada Constitution, Art. 11, § 10.
54 In 1875 Rep. James Blaine (R.-Me.) proposed an amendment to the U.S. Constitution to
make the religion clauses of the First Amendment applicable to the states and to bar public
funds from being made available to private sectarian schools, as follows:
No State shall make any law respecting an establishment of religion, or
prohibiting the free exercise thereof; and no money raised by taxation in any
State for the support of public schools, or derived from any public fund therefor,
nor any public lands devoted thereto, shall ever be under the control of any
religious sect; nor shall any money so raised or lands so devoted be divided
between religious sects or denominations.
The proposal occurred at a time of heated debate about the conduct of religious exercises
in the public schools and demands for the public funding of private Catholic schools and in
a political atmosphere which was often virulently anti-Catholic. A modified version of the
Blaine amendment was adopted by the House, but a different version failed to receive the
necessary two-thirds majority in the Senate in 1876. Nonetheless, similar no-aid provisions
were added to, or were already part of, the constitutions of several states; and Congress also
subsequently required a number of territories newly admitted as states to include such
provisions in their constitutions as a condition of statehood. It is these “little Blaine
amendments” that have now become the focus of litigation.

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CRS-16
“All schools maintained or supported in whole or in part by the public funds
shall be forever free from sectarian control and influence.” Washington
Constitution, Art. 9, § 4.
Some courts have construed these provisions permissively not to bar voucher
programs.55 But in recent years such provisions have been held to prohibit voucher
programs in Maine,56 Vermont,57 Washington,58 and Florida.59
Voucher proponents contend that these restrictive interpretations of state
constitutional provisions violate the free exercise and equal protection provisions of
the U.S. Constitution, and in the wake of Zelman a number of suits have been
initiated in an effort to advance that proposition. Voucher opponents, in contrast, are
using such a provision to challenge a voucher program recently enacted by Colorado.
Most observers expected the issue of the constitutionality of these state provisions
to percolate in the state and lower federal courts for a while. But on May 19, 2003,
the Supreme Court agreed to review a case that raises this precise issue. In Davey v.
Locke60 the U.S. Court of Appeals held the free exercise clause to be violated by a
provision in the Washington Constitution that had been construed to bar a student
from using a state scholarship to pursue a theology degree at a religious college.
The following sections provide a more thorough description of Davey v. Locke,
detail several other pending cases raising the free exercise issue, and summarize
several completed cases that previously addressed the same issue:
55 See, e.g., Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, cert. den., 525 U.S. 480
(1998) (holding Milwaukee’s voucher program not to be violated by sections of Art. I, § 18,
of Wisconsin’s Constitution prohibiting any money from being drawn from the state treasury
“for the benefit of religious societies, or religious or theological seminaries” and stating that
no person “shall ... be compelled to ... support any place of worship, or to maintain any
ministry, without consent”) and Toney v. Bower, 318 Ill. App.3d 1194, 744 N.E.2d 351 (Ill.
App. 4th Dist.), appeal denied, 195 Ill.2d 573, 754 N.E.2d 1293 (2001) (holding a state
statute allowing parents an income tax credit of up to $500 for “qualifying education
expenses” not to violate provisions in Art. 10, § 3, of the Illinois Constitution barring state
and local legislatures from making “any appropriation or pay[ing] from any public fund
whatever, anything in aid of any church or sectarian purpose, or to help support or sustain
any school, academy, seminary, college, university, or other literary or scientific institution,
controlled by any church or sectarian denomination whatever ....”).
56 Bagley v. Raymond School Department, 1999 Me. 60, 728 A.2d 127, cert. den., 528 U.S.
947 (1999).
57 Chittenden Town School District v. Vermont Department of Education, 738 A.2d 539
(Vt.), cert den. sub nom. Andrews v. Chittenden Town School District, 528 U.S. 1066
(1999).
58 Witters v. Washington Department of Services for the Blind, 711 P.2d 1119 (Wash. 1989).
59 The trial court decision of August 5, 2002, in Holmes v. Bush has not been reported.
60 299 F.3d 748 (9th Cir. 2002), cert. granted, 71 U.S.L.W. ___ (May 19, 2003) (No. 02-
1315).

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(2) Davey v. Locke.61 On July 18, 2002, the U.S. Court of Appeals for the
Ninth Circuit held the free exercise clause of the First Amendment to be violated by
a statute and a constitutional provision in the state of Washington that were applied
to deny a college scholarship to an eligible student simply because he planned to
pursue a degree in theology at a religious college. Article I, § 11, of the Washington
Constitution provides in part that “[n]o public money or property shall be
appropriated for or applied to any religious worship, exercise or instruction, or the
support of any religious establishment.” Reflecting that stricture, a state statute
providing college scholarships for in-state, low and moderate income college students
included a provision stating that “[n]o aid may be awarded to any student who is
pursuing a degree in theology.”62 As a consequence, the state denied a Promise
Scholarship to a student enrolled in a religious college who sought to pursue a double
major in Pastoral Ministries and Business Management and Administration.
Upon suit a federal district court granted summary judgment for the state. But
the Ninth Circuit reversed, 2-1. The court held that the state’s statutory and
constitutional restrictions could not survive strict scrutiny under the free exercise
clause of the First Amendment.
The majority said that the state’s denial of a scholarship was religiously
discriminatory and “lacks neutrality on its face.” As a consequence, the court stated,
it could be upheld only if it were shown to serve a compelling public interest in a
narrowly tailored manner. The state argued that not violating its own state
constitution constituted such an interest and observed that its own Supreme Court
had previously rejected a free exercise claim against a very similar statute in Witters
v. State Commission for the Blind.63 But while recognizing the state’s interest to be
“indisputably strong,” the appellate court concluded that it was “less than
compelling”:
The Promise Scholarship is a secular program that rewards superior achievement
by high school students who meet objective criteria. It is awarded to students;
no state money goes directly to any sectarian school. Scholarship funds would
not even go indirectly to sectarian schools for non-secular study unless an
individual recipient were to make the personal choice to major in a subject taught
from a religious perspective, and then only to the extent that the proceeds are
used for tuition and are somehow allocable to the religious major .... In these
circumstances it is difficult to see how any reasonably objective observer could
believe that the state was applying state funds to religious instruction or to
61 299 F.3d 748 (9th Cir. 2002).
62 Wash. Rev. Code § 28B.10.814.
63 711 P.2d 1119 (1989). This decision was on remand from the U.S. Supreme Court’s
decision in Witters v. Washington Department of Services for the Blind, 474 U.S. 481
(1986), which held the establishment clause to be no bar to the provision of a vocational
rehabilitation grant to a student who wanted to use it to study for the ministry. But the Court
noted that Washington had constitutional provisions more strict than the establishment
clause and left it to the state to determine whether the grant was barred by the state
constitution. The Washington Supreme Court held that to be the case and found the free
exercise objection to be unavailing.

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CRS-18
support any religious establishment by allowing an otherwise qualified recipient
to keep his Scholarship.
Consequently, the majority held the statutory restriction and the state constitutional
provision, as applied in this case, to violate the student’s rights under the free
exercise of religion clause.
The dissenting judge contended that “Washington has neither prohibited nor
impaired Davey’s free exercise of his religion. He is free to believe and practice his
religion without restriction ... The only state action here was a decision consonant
with the state constitution, not funding ‘religious ... instruction.’” As a consequence,
he said, the most pertinent framework for analysis was not the Supreme Court’s free
exercise or free speech jurisprudence but the Court’s abortion funding cases. The
Court, he noted, has made clear that a government decision to subsidize childbirth
but not abortion does not unconstitutionally burden a woman’s right to terminate her
pregnancy.64 Davey’s situation, he said, was the same. Inserting the facts of this case
into the Court’s ruling regarding abortion funding in Harris v. McRae, supra, he
stated:
... [T]he State of Washington may have made the pursuit of a non-theology
degree more attractive by virtue of the scholarship award, but at the same time
has not “burdened” Davey by making the pursuit of his chosen degree any more
difficult than it would have been in the absence of this funding. Consequently,
no less than “the constitutional freedom recognized in [Roe v. Wade, 410 U.S.
113 (1973),] and its progeny,” the freedom to exercise one’s religion should not
“prevent [Washington] from making a value judgment favoring [the funding of
non-theology degrees] over [theology degrees], and ... implement[ing] that
judgment by the allocation of public funds.” Harris, 448 U.S. at 314 (internal
quotation marks and citations omitted).
On May 19, 2003, the U.S. Supreme Court agreed to review this decision. That
review will occur in the next Term of the Court, which begins on October 6, 2003.
(3) Other pending cases. Cases that challenge the constitutionality of
restrictive state provisions are currently pending in Florida, Maine, Michigan, and
Vermont, and a suit based on a restrictive state provision was recently instituted
challenging Colorado’s voucher program. Several decisions have been rendered in
the Florida case so far, with the last trial court decision now on appeal. But in light
of the Supreme Court’s decision to review Davey v. Locke, that case as well as the
other four appear likely to be put on hold pending the Court’s disposition of Locke.
The cases are as follows:
(A) Holmes v. Bush. On August 5, 2002, the Circuit Court for Leon County,
Florida, held the state’s Opportunity Scholarship Program (OSP) to violate Article
I, § 3, of the state Constitution, which bars public revenue from ever being used
“directly or indirectly in aid of any church, sect, or religious denomination or in aid
64 Citing Maher v. Roe, 432 U.S. 464 (1977) and Harris v. McRae, 448 U.S. 297 (1980).

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CRS-19
of any sectarian institution.”65 The OSP, enacted in 1999, makes 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 three years of the program, only two elementary
schools in Excambia County were deemed to be failing, and only 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. For the 2002-
2003 school year ten public schools have been rated as failing, and several hundred
students have reportedly applied for vouchers.
Soon after the OSP was first enacted in 1999, 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,66 which 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 exclusive 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.”
On appeal the Florida Court of Appeal for the First District reversed,67 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
65 Holmes v. Bush, Case No. CV 99-3370 (Cir. Ct. Leon County, decided August 5, 2002).
66 Holmes v. Bush, Case No. CV 99-3370 (Cir. Ct. Leon County, decided March 14, 2000).
67 Bush v. Holmes, 767 So.2d 668 (Fla. Dist. Ct. App. 2000), review denied, 790 So. 2d 1104
(Fla. 2001).

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program under other provisions of the Florida Constitution and the establishment
clause.
On April 24, 2001, the Florida Supreme Court refused to hear an appeal of this
decision.68
On remand, and after the U.S. Supreme Court decision in Zelman, the plaintiffs
in the suit abandoned their establishment clause claim and concentrated their
arguments on Article I, § 3, of the Florida Constitution. As noted above, that clause
bars public revenue from ever being used “directly or indirectly in aid of any church,
sect, or religious denomination or in aid of any sectarian institution.” On August 5,
2002, the circuit court held the OSP to violate that clause. Although “empathizing”
with the purpose of the legislation, Judge Davey said that he could not “abandon the
clear mandate of the people as enunciated in the constitution.” The directive, he
stated, was “clear and unambiguous” – no public aid may be provided to religious
institutions. To accept the argument that the state did not provide any funds to
sectarian schools under the OSP because parents made the choice of what schools
their children would attend, he asserted, would represent “a colossal triumph of form
over substance.”
Judge Davey enjoined the program, but a Florida appellate court has stayed that
injunction pending appeal of his ruling. The case is now pending on appeal.
(B) Anderson v. Town of Durham. This case, filed on September 18, 2002,
renews the challenge to Maine’s tuition subsidy program that faltered in Bagley v.
Raymond School Department, infra, and Strout v. Albanese, infra. That program
provides tuition subsidies to parents in rural areas without public secondary schools
in Maine to enable them to send their children to public high schools in nearby
school districts or to private nonsectarian schools. Sectarian schools are excluded
from the program, and Bagley and Strout held that exclusion to be mandated by the
establishment clause. Nonetheless, encouraged by Zelman, six families in three rural
communities contend in this case that the establishment clause should no longer be
construed to bar participation by religious schools and that the exclusion of such
schools amounts to religious discrimination violative of the free exercise clause of
the First Amendment. The case is pending in the Cumberland County Superior Court
in Portland, Maine.
(C) Becker v. Granholm. On February 3, 2003, a college student in
Michigan filed suit against the state contending that its withdrawal of her state
scholarship after she declared a major in theology violates the free exercise clause of
the First Amendment. The state’s Competitive Scholarship Program originated in
1964 and was amended in 1980 to bar aid to students majoring in theology, divinity,
or religious education. The amendment was based on Article VIII, § 2, of the
Michigan Constitution, which provides as follows:
No public monies or property shall be appropriated or paid or any public credit
utilized, by the legislature or any other political subdivision or agency of the state
directly or indirectly to aid or maintain any private, denominational or other
nonpublic, pre-elementary, elementary, or secondary school. No payment, credit,
68 Holmes v. Bush, 790 So.2d 1104 (Fla. 2001).

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CRS-21
tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of
public monies or property shall be provided, directly or indirectly, to support the
attendance of any student or the employment of any person at any such nonpublic
school or at any location or institution where instruction is offered in whole or
in part to such nonpublic school students.
In this case Becker received scholarships of $2750 and $1850 in her first two years
of attendance at Ave Maria College in Ypsilanti, but the aid was withdrawn once she
declared a major in theology. The case is pending in the federal district court for the
eastern district of Michigan.
(D) Naveschuck v. Rutland Town School Board. On March 20, 2003,
parents from several rural communities in Vermont renewed the challenge to the
state’s tuition subsidy program that had faltered in Chittenden Town School District
v. Vermont Department of Education, infra. Like Maine, Vermont requires school
districts that do not maintain a secondary school to provide a tuition subsidy to
enable students to attend public schools in nearby school districts or private schools.
In Chittenden the Vermont Supreme Court held that allowing the subsidies to be used
at sectarian schools would violate the “compelled support” provision in Chapter I,
Article 3, of the Vermont Constitution, which states 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.” This new suit contends that, so construed, the state
constitutional provision violates the free exercise clause of the First Amendment.
The case is pending in the federal district court for Vermont.
(E) Colorado PTA v. Owens. On May 20, 2003, a number of organizations
instituted suit in a state court in Denver challenging the constitutionality of
Colorado’s recently-adopted voucher program under two provisions of the state
constitution. The Colorado Opportunity Contract Pilot Program makes vouchers
available to low-income students in public schools in eleven school districts deemed
to be “unsatisfactory” in at least one academic area and allows the vouchers to be
used at private religious and nonreligious schools. The suit charges that the program
violates Art. 2, § 4, of the Colorado Constitution (“No person shall be required to
attend or support any ministry or place of worship, religious sect or denomination
against his consent”) and Art. 9, § 7 (“Neither the general assembly, nor any county,
city, township, school district or other public corporation, shall ever make any
appropriation, or pay from any public fund or moneys whatever, anything in aid of
any church or sectarian society, or for any sectarian purpose, or to help support or
sustain any school, academy, seminary, college, university or other literary or
scientific institution, controlled by any church or sectarian denomination whatsoever;
nor shall any grant or donation of land, money or other personal property, ever be
made by the state, or any such public corporation to any church, or for any sectarian
purpose”). The case is pending in the Denver County District Court.
Other Decisions of Interest
Prior to the Supreme Court decision in Zelman, several state and lower federal
courts had rendered decisions on the constitutionality of voucher programs. The
supreme courts of Wisconsin, Arizona, and Ohio had held particular programs not
to violate the establishment clause (although the Ohio court found its program to

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CRS-22
violate a procedural rule of the state constitution), while the U.S. Court of Appeal for
the First Circuit and the Maine Supreme Court had held to the contrary. Similarly,
appellate courts in Wisconsin and Illinois had held tuition subsidy and tax benefit
programs not to violate their state constitutions, while the Vermont Supreme Court
found its state constitution to forbid such programs. In addition, an appellate court
in Pennsylvania held a locally-initiated tuition subsidy program to violate state
statutory law. The U.S. Supreme Court had the opportunity to review some of these
decisions but chose not to do so.
The cases, in chronological order, are as follows:
(1) Jackson v. Benson.69 In this case 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, in part on the grounds
that the MPCP constituted a benefit to religious schools in violation of a section of
Article I, § 18, of the state constitution prohibiting any money from being drawn
from the treasury “for the benefit of religious societies, or religious or theological
seminaries.” The appellate court further held the voucher program to violate another
section of the same provision stating that no person “shall ... be compelled to ...
support any place of worship, or to maintain any ministry, without consent.”
But in early 1998 the Wisconsin Supreme Court said the MPCP satisfied both
sections of that state constitutional provision as well as the establishment clause of
the First Amendment. The establishment clause was satisfied, the court held,
because the program 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 benefits clause of the state
constitution, it asserted, should be interpreted in the same manner. Finally, it held,
the compelled support clause of the Wisconsin Constitution was not violated because
the program did not compel any person to attend a sectarian school or to participate
in religious activities.70
69 218 Wis.2d 835, 578 N.W.2d 602, cert. den.,525 U.S. 480 (1998).
70 The Wisconsin Supreme Court also held the voucher program not to violate two other
provisions of the Wisconsin Constitution – Art. IV, § 18, barring the legislature from
enacting purely private or local bills; and Art. X, § 3, directing the state to establish a
“uniform” system of free public schools in which “no sectarian instruction shall be
allowed.” The court also held the program not to violate the “public purpose” doctrine that,
while not explicit in the state constitution, “is a well-established constitutional doctrine.”

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CRS-23
On November 9, 1998, the Supreme Court denied review. (The Milwaukee
program, it might be noted, was the model for the Cleveland program reviewed by
the Court in Zelman.)
(2) Kotterman v. Killian.71 In this case the Supreme Court of Arizona held
a program indirectly providing support for private schools, including sectarian
schools, not to violate the establishment clause, 3-2. The case 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 said that the class of possible beneficiaries, i.e.,
donors to the school tuition organizations, included all taxpayers and not a narrow
group defined on the basis of religion. Moreover, it stated, 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.72 In this predecessor case to Zelman v.
Simmons-Harris, the Supreme Court of Ohio held the Ohio Pilot Scholarship
Program as first enacted in 1995 not to violate the establishment clause but to violate
a procedural provision of the Ohio Constitution. As noted in the discussion of
Zelman above, the program provided scholarships worth up to $2250 a year to
children of poor families in the Cleveland public schools which could be used to
attend either private schools in the city, including religious 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% 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, 2-1,73 stating that the parents did not have a
“genuine and independent” choice about where to use the scholarships and that the
71 193 Ariz. 273, 972 P.2d 606 (Ariz. 1999), cert. den., 528 U.S. 810 (1999).
72 86 Ohio St. 3d 1, 711 N.E. 2d 203 (1999).
73 1997 Ohio App. LEXIS 1766 (Ct. App. Ohio, Tenth District, decided May 1, 1997).

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CRS-24
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.74
On May 25, 1999, 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 a procedural 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) Bagley v. Raymond School Department.75 In this case the Maine
Supreme Judicial Court held the exclusion of private sectarian schools from a state
tuition subsidy program to be required by the establishment clause, 5-1. 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
violate the establishment clause. Several parents in Raymond, Maine, who wanted
to send their children to a Catholic high school challenged the exclusion of sectarian
74 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.
75 Bagley v. Raymond School Department, 1999 Me. 60, 728 A.2d 127, cert. den., 528 U.S.
947 (1999) (No. 99-163).

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CRS-25
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. The free exercise clause, the court stated, did not give the
petitioners any right to a public subsidy for a religious education for their children;
and their exercise of their religious beliefs could not be said to be significantly
burdened by the denial of such a subsidy. The establishment clause argument, it said,
was misplaced, because that clause “simply does not speak to governmental actions
that fail to support religion.” Finally, the court held, the petitioners’ equal protection
contention failed, because the state had no constitutional choice but to exclude the
religious schools. Any disparate treatment passed muster under the equal protection
clause, it said, because the state had a compelling interest in abiding by the
establishment clause prohibition on direct public funding of sectarian schools:
Although the school is chosen by parents, not the State, choice alone cannot
overcome the fact that the tuition program would directly pay religious schools
for programs that include and advance religion .... 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 court also held that the pertinent provisions of
the Maine Constitution were not violated, because they were coextensive with the
federal provisions.
The decision was appealed to the Supreme Court; but the Court on October 12,
1999, chose not to review it.
(5) Strout v. Albanese. In this parallel case the U.S. Court of Appeals for
the First Circuit also held Maine’s exclusion of sectarian schools from its tuition
subsidy program to be constitutionally required. 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

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CRS-26
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.

(6) Chittenden Town School District v. Vermont Department of
Education.76 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.
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 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, violated 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:
76 738 A.2d 539 (Vt.), cert. den. sub nom. Andrews v. Chittenden Town School District, 528
U.S. 1066 (1999).

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CRS-27
... [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.
(7) Giacomucci v. Southeast Delco School District.77 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. 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
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.
77 Giacomucci v. Southeast Delco School District, 742 A.2d 1165 (Commonwealth Court
1999).

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(8) Toney v. Bower.78 On February 8, 2001, an Illinois appellate court upheld
as constitutional under the state constitution a state statute allowing parents an
income tax credit of up to $500 for “qualifying education expenses” incurred in
sending their children to elementary or secondary school. “Qualifying education
expense” was defined to mean an amount in excess of $250 incurred for tuition, book
fees, and lab fees; and the credit was available to the parents of children attending
either public or private schools, including sectarian schools.
The tax credit was challenged as compelling all taxpayers to support a ministry
or place of worship in violation of § 3 of Article I of the Illinois Constitution, as
being an appropriation or payment from a public fund in aid of sectarian schools and
sectarian purposes in violation of § 3 of Article X, as not being for a public purpose
a required by Article VIII, and as discriminating against the parents of public school
children in violation of the “reasonableness” requirement of § 2 of Article IX. The
plaintiffs argued that most parents of public school children could not benefit from
the tax credit because book and lab fees never exceeded $250 and tuition was
charged only to a small number who attended public schools outside of their home
district. As a consequence, they contended, parents of public school children were
largely disqualified and “virtually all the money that will be diverted from the State
treasury as a result of the Credit will be expended at private schools, the vast majority
of which are sectarian.” Nonetheless, the trial court held the tax credit program to
meet the requirements of the Illinois Constitution and, on appeal, the Appellate Court
for the Fourth District affirmed.
The appellate court stated that the restrictions concerning the establishment of
religion in the Illinois Constitution are “identical to those contained in the federal
establishment clause.” As a consequence, it found the issue to be controlled by the
Supreme Court’s decision in Mueller v. Allen, 463 U.S. 388 (1983). It noted that in
that case the Supreme Court had upheld a Minnesota program allowing taxpayers to
claim a deduction on their state income taxes for “educational expenses” such as
tuition, textbooks, and transportation. On the basis of the Court’s conclusions in that
case, the appellate court held the Illinois tax credit (1) to serve the secular purposes
of “ensuring that Illinois children are well educated” and of “maintaining the
financial health of private schools”; (2) not to have a primary effect of advancing
religion because the tax credit was “but one of many tax credits allowed by our tax
laws,” was “equally available to all parents of public school children, as well as to
those who send their children to private nonsectarian or sectarian schools,” and
became “available to schools only as the result of private choices made by individual
parents”; and (3) not to foster an excessive entanglement with religion. The appellate
court also rejected the contention that the tax credit did not serve a “public purpose”
and was not a “reasonable” tax classification as required by the state constitution,
stating that the purposes of aiding the education of Illinois’ children and of
maintaining the financial health of private schools were valid public purposes and
78 318 Ill.App.3d 1194, 744 N.E.2d 351 (Ill. App. 4th Dist.), appeal denied, 195 Ill.2d 573,
754 N.E.2d 1293 (2001). This decision has been followed in what appears to be a virtually
identical case, Griffith v. Bower, 319 Ill.App.3d 993, 747 N.E.2d 423 (Ill. App. 5th Dist.
April 3, 2001).

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CRS-29
that helping only those who incurred higher costs in sending their children to school
was a reasonable distinction.
On June 6, 2001, the Illinois Supreme Court rejected a petition to review this
decision.

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