Education Vouchers: Constitutional Issues and Cases

Education Vouchers: Constitutional Issues and Cases

Order Code RL30165
CRS Report for Congress
Received through the CRS Web
Education Vouchers:
Constitutional Issues and Cases
Updated January 24, 2006
Angie A. Welborn
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Education Vouchers: Constitutional Issues and Cases
Summary
On February 25, 2004, in Locke v. Davey, the Supreme Court overturned a lower
federal court decision which had 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.
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.
Following Zelman, legal questions remained 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. As noted, the Supreme Court addressed this issue
in Locke v. Davey and found that Washington state’s exclusion of the pursuit of a
devotional theology degree from its otherwise inclusive scholarship aid program did
not violate the Free Exercise Clause.
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 Court’s decision in Locke
and other selected state and lower federal court cases concerning vouchers. The
report will be updated as events warrant.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Direct Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Indirect Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(1) Precursors to Zelman v. Simmons-Harris . . . . . . . . . . . . . . . . . . . . 5
(2) Zelman v. Simmons-Harris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(3) Current Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
State Constitutional Limitations on Voucher Programs . . . . . . . . . . . . . . . 14
(1) Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(2) Locke v. Davey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(3) Other recent cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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.
A key issue in the debates on educational vouchers1 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 ....”2 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-
Harris3 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
1 This report uses the term “voucher” broadly to mean not only tuition subsidy and tuition
grant programs but also tax benefit proposals.
2 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).
3 536 U.S. 639 (2002).

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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.
Sometimes called “little Blaine amendments” (see infra n. 51), 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.
The Supreme Court addressed the issue of these types of state constitutional
provisions during the October 2003 Term. Earlier, U.S. Court of Appeals for the
Ninth Circuit had 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.4 On February
25, 2004, the Supreme Court reversed the lower court’s decision holding that
Washington state’s exclusion of the pursuit of a devotional theology degree from its
otherwise inclusive scholarship aid program did not violate the Free Exercise Clause
of the First Amendment.5
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 Locke v. Davey and other selected cases involving the
constitutionality of state restrictions on voucher programs. 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.”6 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....”7 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
4 Davey v. Locke, 299 F.3d 748 (9th Cir. 2002).
5 540 U.S. 712 (2004).
6 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).
7 Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).

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activities or proselytizing.8 Direct assistance, the Court has held, cannot be used for
religious indoctrination.9
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.10 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.11 For other entities such as
8 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).
9 Mitchell v. Helms, 530 U.S. 793 (2000).
10 Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman, supra; Bowen
v. Kendrick, 487 U.S. 589 (1988).
11 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.12
But the Court has recently abandoned that presumption regarding sectarian
elementary and secondary schools.13 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).14
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
12 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).
13 Agostini v. Felton, supra, and Mitchell v. Helms, supra.
14 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. Lemon15 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.”16 “In both instances,” it said in Nyquist, “the money involved represents
a charge made upon the state for the purposes of religious education.”17 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.”18 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
15 413 U.S. 825 (1973).
16 Committee for Public Education v. Nyquist, supra, at 783.
17 Id., at 791, quoting from the lower court decision at 350 F.Supp. 655, 675 (1972).
18 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.”19
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.”20
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. Allen21 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 Blind22 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,23 in turn, involved a Tucson school
district’s subsidy of a sign-language interpreter under the federal “Individuals with
Disabilities Education Act”24 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.25
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
19 Id. at 782, n. 38.
20 Id.
21 463 U.S. 388 (1983).
22 474 U.S. 481 (1986).
23 509 U.S. 1 (1993).
24 20 U.S.C.A. §§ 1401 et seq.
25 Mueller v. Allen, supra, at 397.

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of school-age children.”26 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.”27 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.”28 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.”29 “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.”30 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.”31
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
26 Id. at 399.
27 Id. at 401.
28 Witters v. Washington Department of Services for the Blind, supra, at 487.
29 Id. at 488.
30 Id.
31 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.”32 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.”33 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 Carolina34 and Americans United for the Separation of Church and State
v. Blanton35 involved the federal “State Student Incentive Grant” program.36 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
32 Zobrest v. Catalina Foothills School District, supra, at 10.
33 Id.
34 429 F.Supp. 871 (W.D.N.C.), aff’d mem., 434 U.S. 803 (1977).
35 433 F.Supp. 97 (M.D. Tenn.), aff’d mem., 434 U.S. 803 (1977).
36 20 U.S.C.A. § 1070c et seq.

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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.37
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.”38
(2) Zelman v. Simmons-Harris.39 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
37 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.
38 Witters v. Washington Department of Services for the Blind, supra, at 490-91 (Powell,
J., concurring).
39 536 U.S. 639 (2002).

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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.40 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.41
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
40 Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 711 N.E.2d 203 (1999).
41 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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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, 5-4.42 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.43
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).44 It held as well that “the program challenged here is a program of true
private choice.”45
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:
42 Joining in the majority were Chief Justice Rehnquist and Justices O’Connor, Scalia,
Kennedy, and Thomas. Justices Souter, Stevens, Breyer, and Ginsburg dissented.
43 Zelman v. Simmons-Harris, supra, at 650.
44 Id.
45 Id.

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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.46
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.47
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.48
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
46 Id. at 651.
47 Id.
48 Id. at 665 (Souter, J., dissenting).

CRS-13
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.”49
(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.”50
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.
49 Id. at 670.
50 Id. at 652.

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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,”51 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.
51 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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“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.52 But in recent years such provisions have been held to prohibit voucher
programs in Maine,53 Vermont,54 Washington,55 and Florida.56
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. On February 25, 2004, in Locke v.
Davey, the Supreme Court reversed a lower court opinion that had 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 Locke v. Davey,
and summarize other selected cases that addressed the same issue.
(2) Locke v. Davey.57 On February 25, 2004, the Supreme Court overturned
a decision by the U.S. Court of Appeals for the Ninth Circuit that had 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
52 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 ....”).
53 Bagley v. Raymond School Department, 1999 Me. 60, 728 A.2d 127, cert. den., 528 U.S.
947 (1999).
54 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).
55 Witters v. Washington Department of Services for the Blind, 711 P.2d 1119 (Wash. 1989).
56 The trial court decision of August 5, 2002, in Holmes v. Bush has not been reported.
57 540 U.S. 712 (2004).

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degree in theology at a religious college.58 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.”59 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
a panel of the Ninth Circuit reversed. 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 Supreme Court reversed the decision of the Ninth Circuit finding that
Washington state’s exclusion of the pursuit of a devotional theology degree from its
otherwise inclusive scholarship aid program did not violate the Free Exercise Clause
of the First Amendment. The Court rejected Davey’s argument that the program was
presumptively unconstitutional because it is not facially neutral with respect to
religion.60 Davey’s claim was based on the Court’s decision in Church of Lukumi
Babalu Aye, Inc. v. Hiaheah where the Court determined that a city ordinance making
it a crime to engage in certain types of animal slaughter violated the Free Exercise
rights of those who practice the Santeria religion.61 The Court distinguished the
present case from Lukumi, and others in that line of cases, by noting that the state law
in question imposed no civil or criminal penalties on any type of religious service or
rite, nor did it require the student to choose between their religious beliefs and receipt
of a government benefit.62
The Court went on to note that the Promise Scholarship Program went “a long
way toward including religion in its benefits” by allowing students to attend
pervasively religious schools, so long as they are accredited, and allowing students
to take devotional theology courses.63 Without any evidence to suggest animus
towards religion, there existed no presumption of unconstitutionality.64 The Court
found that since the state’s interest in not funding the pursuit of devotional degrees
58 299 F.3d 748 (9th Cir. 2002).
59 Wash. Rev. Code § 28B.10.814.
60 540 U.S. at 720. The Court also rejected Davey’s argument that the Promise Scholarship
Program is an unconstitutional viewpoint restriction on speech, finding that the Program was
not a forum for speech. Id. at 721.
61 508 U.S. 520 (1993).
62 540 U.S. at 720, citations omitted.
63 Id. at 724.
64 Id. at 725.

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was substantial and the burden placed on Promise Scholars by the exclusion of such
programs was minor, the program survived constitutional scrutiny.65
(3) Other recent cases. Prior to the Supreme Court’s decision in Locke,
cases challenging the constitutionality of restrictive state provisions were also
brought in several other states. The issue of whether these provisions violate the Free
Exercise clause appears to have been settled in Locke, and, in general, these cases
appear to have been resolved based on the Supreme Court’s decision. Two of these
cases are discussed below.
(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
of any sectarian institution.”66 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,67 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.”
65 Id.
66 Holmes v. Bush, Case No. CV 99-3370 (Cir. Ct. Leon County, decided August 5, 2002).
67 Holmes v. Bush, Case No. CV 99-3370 (Cir. Ct. Leon County, decided March 14, 2000).

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On appeal the Florida Court of Appeal for the First District reversed,68 finding
that the trial court had misapplied the maxim expressio unius est exclusio alterius (to
express or include one thing implies the exclusion of the alternative). Article IX, §
1, it said, mandates that the state “make adequate provision for the education of all
children” in Florida. But the appellate court held that it does not prescribe an
exclusive means: “[S]ection 1 does not unalterably hitch the requirement to make
adequate provision for education to a single, specified engine, that being the public
school system.” In support of that conclusion, the court emphasized that Art. IX,§
1, did not explicitly bar tuition subsidies or explicitly direct that its mandate could
be carried out only by means of public schools. It further noted that prior judicial
decisions had held findings of implicit prohibitions in the constitution to be generally
disfavored and that the legislature had in the past provided subsidies for certain
“exceptional” students to attend private schools when the public schools lacked the
necessary facilities or personnel. Consequently, the appellate court overturned the
trial court’s decision on this issue and remanded the case to the trial court for further
proceedings on the additional constitutional claims that had been raised against the
program under other provisions of the Florida Constitution and the establishment
clause.
On April 24, 2001, the Florida Supreme Court refused to hear an appeal of this
decision.69
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.”
In November of 2004, the Court of Appeal of Florida affirmed holding that the
OSP violated the no-aid provision of the Florida Constitution because OSP used state
revenues to aid sectarian schools.70 Using the Supreme Court’s reasoning in Locke,
the court also determined that the no-aid provision did not violate the federal Free
Exercise Clause.71
68 Bush v. Holmes, 767 So.2d 668 (Fla. Dist. Ct. App. 2000), review denied, 790 So. 2d 1104
(Fla. 2001).
69 Holmes v. Bush, 790 So.2d 1104 (Fla. 2001).
70 Bush v. Holmes, 886 So. 2d 340 (Fla. App. 2004).
71 Id.

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On January 5, 2006, the Supreme Court of Florida held that the OSP violated
another provision in the state constitution that requires the state to “make adequate
provision for the education of all children residing within its borders.”72 The state
constitution specifically requires the state to provide “a uniform, efficient, safe,
secure, and high quality system of free public schools.”73 The court determined that
the OSP violated this provision by diverting public dollars into a separate private
school system “parallel to and in competition with the free public schools that are the
sole means set out in the Constitution for the state to provide for the education of
Florida’s children.”74 The Court did not address whether the OSP was a violation of
the state constitution’s “no aid” provision.
(B) 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,
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.
On July 22, 2003, the United States District Court for the Eastern District of
Michigan granted the plaintiff’s motion for preliminary injunction after finding that
the plaintiff was “substantially likely to prevail on the merits of her constitutional
claims.”75 The court enjoined the defendants from continuing to enforce the
theology, divinity, and religious education degree restrictions in the state’s
scholarship program until a final decision was made on the merits of the plaintiff’s
constitutional claims.76 There is no indication that the court has revisited the case
following the Supreme Court’s decision in Locke. Presumably, based on the Court’s
72 2006 Fla. LEXIS 4 (January 5, 2006). The provision of the state constitution in question
is Article IX, section 1(a).
73 Fla. Const. Article IX, section 1(a).
74 2006 Fla. LEXIS 4, 9,
75 272 F. Supp.2d 643, 649 (E.D. Mich. 2003).
76 Id. at 650.

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decision, the state would be free to impose such restrictions on the scholarship
program.