NCPA - National Center for Policy Analysis

Is School Choice Constitutional?

December 18, 2001

In 2002, the U.S. Supreme Court will rule on a case from Cleveland that should clarify whether it is constitutional to use tax-funded vouchers to attend religious schools. Since 1996, the Cleveland Scholarship and Tutoring Program has provided the vouchers that allow children from low-income families to opt out of the city's failing public schools. Teachers' unions and the education establishment have argued it violates the First Amendment because many voucher students attend religious schools.

  • Under the program, students receive scholarships of up to 90 percent of tuition to attend the school of their parents' choice - and 4,195 students took advantage of the program in the 2000-2001 school year.
  • The scholarships are capped at $2,250 or the amount of tuition, whichever is less - and if suburban public schools participate they receive more than $6,500 from the state for each voucher student.
  • In 1999-2000 the Cleveland public schools met only three of 27 performance standards set by the Ohio Department of Education and the district was deemed an "academic emergency."
  • Several studies and surveys - by Harvard, the Buckeye Institute and the Indiana Center for Evaluation - have demonstrated the benefits of the program to students from low-income families.

The teachers' union and others challenged the program in the state courts and lost. The program was then found unconstitutional by a U.S. District Judge in Cleveland and, on appeal, by the U.S. Sixth Circuit Court of Appeals.

However, proponents argue the U.S. Supreme Court has upheld educational programs even if government aid ultimately reaches religious institutions if the aid is disbursed according to neutral criteria and reaches the institutions as a result of a genuine, independent private decision. The Cleveland voucher program meets these two requirements.

Source: David J. Owsiany (Buckeye Institute), "Cleveland, School Choice and the Constitution," Brief Analysis No. 383, December 18, 2001, NCPA.

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