On February 20, 2002, the U.S. Supreme Court heard oral arguments in the closely watched Cleveland, Ohio school voucher case, Zelman v. Simmons-Harris. The Center for Individual Freedom in conjunction with the Cato Institute, Friedman Foundation and Goldwater Institute filed an amicus brief in the case arguing that the school voucher program does not violate the Establishment Clause of the First Amendment as opponents argue [click here to read the brief]

Based on details of the lengthy and lively hearing, voucher supporters optimistically forecast a favorable ruling for the statewide program that allows low-income parents to use publicly financed vouchers as tuition to send their children to private schools, whether religious or secular in nature.

Counsel for the American Federation of Teachers, Robert Chanin, attempted to convince the justices during the tension-filled debate that Cleveland’s school choice program violates the Establishment Clause because the vast majority of money is funneled to religious schools. "It’s a back-door approach to exactly what the Establishment Clause prohibits," Chanin asserted.

Opponents of the program cite the fact that 99.4% of parents who utilize the voucher program send their children to 51 different private schools, 42 of which are religious schools. The Justices seemed skeptical, with Justice Scalia noting that schools with a religious affiliation "happen to be those that are up and running."

Attorneys arguing for school choice made the case that the Ohio program does not violate the First Amendment because parents may freely choose where the $2,500 vouchers are spent, including the ability to send their children to "community" or magnet schools or to use the money for tutoring while keeping their children in the public school system.

Ohio Assistant Attorney General Judith L. French, defined it as "a neutral program that offers a true private choice to parents," unlike the New York tuition assistance program that voucher opponents claim benefited families with children attending private (and mostly religious) schools. The Supreme Court struck down the New York program in the 1973 Committee for Public Education v. Nyquist decision.

Justice Souter ventured that the differences or similarities between the two programs is at the heart of the issue. "At the end of the day, a massive amount of money went to the religious schools in Nyquist, and a massive amount of money goes to the religious schools here. That’s the sticking point," he said.

As the Center reasons in its friend of the court brief, "State creation of private choice does not offend the Establishment Clause regardless of whether the individual exercise of such choice results in greater or lesser attendance at religiously oriented schools. As in so many areas of constitutional law, ranging from free speech to equal protection, the fundamental requirement is an equality of opportunity, not a pre-ordained outcome."