536 U.S. 639 (2002)
The Cleveland City School District enrolled more than 75,000 children, the majority from low-income and minority families, and had been among the worst performing public schools in the nation for more than a generation.1
In 1995, a federal district court declared a crisis and placed the district under state control, after which the state auditor found an unprecedented crisis in American education.2 Shortly thereafter, Ohio enacted the Pilot Project Scholarship Program to provide financial assistance to families in the district.3
The program offers tuition aid for students in kindergarten through eighth grade to attend participating public or private schools of their parents' choosing and tutorial aid for students remaining in public school.4 Tuition aid is distributed to parents based on financial need, with low-income families receiving priority and up to 90 percent of tuition costs covered, and checks are made payable to parents who endorse them to the chosen school.5 Any private school within the district meeting statewide standards may participate, as may public schools in adjacent districts, and participating schools may not discriminate on the basis of race, religion, or ethnic background.6
In the 1999-2000 school year, 56 private schools participated, 46 of which had a religious affiliation, and more than 3,700 students took part in the scholarship program, with 96 percent enrolling in religiously affiliated schools.7 The program operates alongside community schools, which are publicly funded but independently run and may not have religious affiliation, and magnet schools emphasizing particular subjects or methods, which together enrolled thousands of additional students.8
Respondents, a group of Ohio taxpayers, first challenged the program in state court in 1996 on state and federal grounds.9 The Ohio Supreme Court rejected the federal claims but found a procedural violation under the state constitution that the legislature promptly cured.10 In July 1999, respondents filed suit in federal district court seeking to enjoin the program on Establishment Clause grounds.11 In December 1999, the District Court granted summary judgment for respondents.12 In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the "primary effect" of advancing religion in violation of the Establishment Clause.13 The Supreme Court granted certiorari, 533 U. S. 976 (2001), and reversed the Court of Appeals.14
Whether the Ohio Pilot Project Scholarship Program offends the Establishment Clause of the First Amendment?15
The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion.16 Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971). Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question under Lemon is whether the program has the forbidden “effect” of advancing or inhibiting religion.17 To answer that question, the Court applies the principle of Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, and Mueller v. Allen, 463 U. S. 388. 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 subject to challenge under the Establishment Clause.18
Yes. The program is neutral with respect to religion because it provides benefits to a wide spectrum of individuals defined only by financial need and residence in the Cleveland City School District, and permits private citizens to direct the aid to the schools of their choice.19 The only preference stated is for low-income families, who receive greater assistance and are given priority.20 The program does not prefer any religious or nonreligious school.21
It provides aid directly to parents, who, in turn, choose the schools.22 It contains no financial incentives favoring religious schools.23 The fact that some 96% of the scholarship recipients have enrolled in religious schools does not mean that the program is one of government support for religion because the program provides parents of eligible students with the option of selecting secular educational assistance through community schools, magnet schools, traditional public schools, and private nonreligious schools.24 The program is one of true private choice and is constitutional.25
The program does not offend the Establishment Clause.26
Related opinions on this issue
Justice O’Connor, concurring, joined the opinion of the Court. She elaborated that the program is neutral with respect to religion and provides aid to a broad class of citizens. The aid reaches religious schools only as a result of the genuine and independent choices of private individuals.
The program does not have the effect of advancing religion.27 She further explained that when considering the option to attend community schools, the percentage of students enrolled in religious schools falls to 62.1 percent.28 If magnet schools are included in the mix, this percentage falls to 16.5 percent.29
Even these numbers do not paint a complete picture because the Cleveland program provides voucher applicants from lowincome families with up to $2,250 in tuition assistance.30 In contrast, the State provides community schools $4,518 per pupil and magnet schools, on average, $7,097 per pupil.31 She concluded that the Cleveland voucher program affords parents of eligible children genuine nonreligious options and is consistent with the Establishment Clause.32
Justice Thomas, concurring, joined the opinion of the Court. He emphasized that the program is a valid exercise of the State’s power to provide educational opportunities to its citizens. The fact that some parents choose to send their children to religious schools does not render the program unconstitutional.
The Establishment Clause does not require the exclusion of religious schools from neutral government aid programs.33 He noted that education means emancipation and that the program allows voluntary participation of private and religious schools in educating poor urban children otherwise condemned to failing public schools.34 He concluded that the program does not force any individual to submit to religious indoctrination or education but simply gives parents a greater choice as to where and in what manner to educate their children.35
Joined by Justice Souter
Justice Stevens, with whom Justice Souter joins, dissenting. He argued that the program has the primary effect of advancing religion. The vast majority of the schools participating in the program are religious schools.
The vast majority of the students participating in the program attend religious schools. The program is not one of true private choice. It is a program of government support for religious education.
He would affirm the judgment of the Court of Appeals.36 He noted that the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible.37
Joined by Justice Stevens, Justice Ginsburg, And Justice Breyer
Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting. He argued that the program violates the Establishment Clause. The program provides direct aid to religious schools.
The program is not neutral with respect to religion. The restrictions in the program do not eliminate the effect of advancing religion. The program is unconstitutional.38
He emphasized that the overwhelming proportion of large appropriations for voucher money must be spent on religious schools if it is to be spent at all, and will be spent in amounts that cover almost all of tuition.39 The money will thus pay for eligible students' instruction not only in secular subjects but in religion as well.40
Joined by Justice Stevens And Justice Souter
Justice Breyer, with whom Justice Stevens and Justice Souter join, dissenting. He argued that the program creates a constitutional dilemma. It creates religious divisiveness.
The program is not one of true private choice. The program violates the Establishment Clause. He would affirm the judgment below.41
He emphasized the risk that publicly financed voucher programs pose in terms of religiously based social conflict and that the Establishment Clause concern for protecting the Nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program.42