KIRK v. LOUISIANA

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635 OCTOBER TERM, 2001
Per Curiam
KIRK v. LOUISIANA
on petition for writ of certiorari to the court of
appeal of louisiana, fourth circuit
No. 01–8419. Decided June 24, 2002
After observing what appeared to be several drug purchases made out of
petitioner’s apartment and stopping one of the buyers on the street out-
side petitioner’s residence, the police entered petitioner’s home and ar-
rested and searched him before obtaining an arrest or a search warrant.
Petitioner was charged in Louisiana state court with possession of co-
caine with intent to distribute. The trial court denied his motion to
suppress the evidence obtained during the warrantless entry, arrest,
and search, and petitioner was convicted. In holding that the officers’
conduct did not violate the Fourth Amendment because they had proba-
ble cause to arrest petitioner, the State Court of Appeal declined to
decide whether exigent circumstances were present. The State Su-
preme Court denied review.
Held: The Court of Appeal erred in finding that exigent circumstances
were not required to justify the officers’ conduct. Its reasoning plainly
violates the holding in Payton v. New York, 445 U. S. 573, 590, that the
firm line at the entrance to a house may not be crossed without a war-
rant, absent exigent circumstances. Here, police had neither an arrest
nor a search warrant. Although the officers testified at the suppression
hearing that they took action out of fear that evidence would be de-
stroyed, the Louisiana Court of Appeal did not determine that such
exigent circumstances were present.
Certiorari granted; 773 So. 2d 259, reversed and remanded.
Per Curiam.
Police officers entered petitioner’s home, where they ar-
rested and searched him. The officers had neither an arrest
warrant nor a search warrant. Without deciding whether
exigent circumstances had been present, the Louisiana Court
of Appeal concluded that the warrantless entry, arrest, and
search did not violate the Fourth Amendment of the Federal
Constitution because there had been probable cause to arrest
petitioner. 00–0190 (La. App. 11/15/00), 773 So. 2d 259.
The court’s reasoning plainly violates our holding in Payton

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636 KIRK v. LOUISIANA
Per Curiam
v. New York, 445 U. S. 573, 590 (1980), that “[a]bsent exigent
circumstances,” the “firm line at the entrance to the
house . . . may not reasonably be crossed without a warrant.”
We thus grant the petition for a writ of certiorari and re-
verse the Court of Appeal’s conclusion that the officers’ ac-
tions were lawful, absent exigent circumstances.*
On an evening in March 1998, police officers observed peti-
tioner’s apartment based on an anonymous citizen complaint
that drug sales were occurring there. After witnessing
what appeared to be several drug purchases and allowing
the buyers to leave the scene, the officers stopped one of
the buyers on the street outside petitioner’s residence. The
officers later testified that “[b]ecause the stop took place
within a block of the apartment, [they] feared that evidence
would be destroyed and ordered that the apartment be en-
tered.” 00–0190, at 2, 773 So. 2d, at 261. Thus, “[t]hey im-
mediately knocked on the door of the apartment, arrested
the defendant, searched him thereto and discovered the co-
caine and the money.” Id., at 4, 773 So. 2d, at 263. Al-
though the officers sought and obtained a search warrant
while they detained petitioner in his home, they only ob-
tained this warrant after they had entered his home, ar-
rested him, frisked him, found a drug vial in his underwear,
and observed contraband in plain view in the apartment.
Based on these events, petitioner was charged in a Louisi-
ana court with possession of cocaine with intent to distribute.
He filed a pretrial motion to suppress evidence obtained by
the police as a result of their warrantless entry, arrest, and
search. After holding a suppression hearing, the trial court
denied this motion. Petitioner was convicted and sentenced
to 15 years at hard labor.
On direct review to the Louisiana Court of Appeal, peti-
tioner challenged the trial court’s suppression ruling. He
argued that the police were not justified in entering his home
*We also grant petitioner’s motion for leave to proceed in forma
pauperis.

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637 Cite as: 536 U. S. 635 (2002)
Per Curiam
without a warrant absent exigent circumstances. The
Court of Appeal acknowledged petitioner’s argument: “[Peti-
tioner] makes a long argument that there were not exigent
circumstances for entering the apartment without a war-
rant.” Id., at 2, 773 So. 2d, at 261. The court, however,
declined to decide whether exigent circumstances had been
present, because “the evidence required to prove that the
defendant possessed cocaine with the intent to distribute,
namely the cocaine and the money, was not found in the
apartment, but on his person.” Ibid. The court concluded
that because “[t]he officers had probable cause to arrest and
properly searched the defendant incident thereto . . . [, t]he
trial court properly denied the motion to suppress.” Id., at
4, 773 So. 2d, at 263.
The Louisiana Supreme Court denied review by a vote of 4
to 3. In a written dissent, Chief Justice Calogero explained:
“The Fourth Amendment to the United States constitu-
tion has drawn a firm line at the entrance to the home,
and thus, the police need both probable cause to either
arrest or search and exigent circumstances to justify a
nonconsensual warrantless intrusion into private prem-
ises. . . . Here, the defendant was arrested inside an
apartment, without a warrant, and the state has not
demonstrated that exigent circumstances were present.
Consequently, defendant’s arrest was unconstitutional,
and his motion to suppress should have been granted.”
App. to Pet. for Cert. 1–2.
We agree with Chief Justice Calogero that the Court of
Appeal clearly erred by concluding that petitioner’s ar-
rest and the search “incident thereto,” 00–0190, at 4, 773
So. 2d, at 263, were constitutionally permissible. In Payton,
we examined whether the Fourth Amendment was violated
by a state statute that authorized officers to “enter a private
residence without a warrant and with force, if necessary, to
make a routine felony arrest.” 445 U. S., at 574. We deter-

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638 KIRK v. LOUISIANA
Per Curiam
mined that “the reasons for upholding warrantless arrests in
a public place do not apply to warrantless invasions of the
privacy of the home.” Id., at 576. We held that because
“the Fourth Amendment has drawn a firm line at the en-
trance to the house . . . [, a]bsent exigent circumstances, that
threshold may not reasonably be crossed without a warrant.”
Id., at 590. And we noted that an arrest warrant founded
on probable cause, as well as a search warrant, would suffice
for entry. Id., at 603.
Here, the police had neither an arrest warrant for peti-
tioner, nor a search warrant for petitioner’s apartment, when
they entered his home, arrested him, and searched him.
The officers testified at the suppression hearing that the
reason for their actions was a fear that evidence would be
destroyed, but the Louisiana Court of Appeal did not de-
termine that such exigent circumstances were present.
Rather, the court, in respondent’s own words, determined
“that the defendant’s argument that there were no exigent
circumstances to justify the warrantless entry of the apart-
ment was irrelevant” to the constitutionality of the officers’
actions. Brief in Opposition 2–3. As Payton makes plain,
police officers need either a warrant or probable cause plus
exigent circumstances in order to make a lawful entry into a
home. The Court of Appeal’s ruling to the contrary, and
consequent failure to assess whether exigent circumstances
were present in this case, violated Payton.
Petitioner and respondent both dispute at length whether
exigent circumstances were, in fact, present. We express
no opinion on that question, nor on respondent’s argument
that any Fourth Amendment violation was cured because the
police had an “independent source” for the recovered evi-
dence. Brief in Opposition 8. Rather, we reverse the
Court of Appeal’s judgment that exigent circumstances were
not required to justify the officers’ conduct, and remand for
further proceedings not inconsistent with this opinion.
It is so ordered.

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639 OCTOBER TERM, 2001
Syllabus
ZELMAN, SUPERINTENDENT OF PUBLIC
INSTRUCTION OF OHIO, et al. v.
SIMMONS-HARRIS et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 00–1751. Argued February 20, 2002—Decided June 27, 2002*
Ohio’s Pilot Project Scholarship Program gives educational choices to fam-
ilies in any Ohio school district that is under state control pursuant to a
federal-court order. The program provides tuition aid for certain stu-
dents in the Cleveland City School District, the only covered district, to
attend participating public or private schools of their parent’s choosing
and tutorial aid for students who choose to remain enrolled in public
school. Both religious and nonreligious schools in the district may par-
ticipate, as may public schools in adjacent school districts. Tuition aid
is distributed to parents according to financial need, and where the aid
is spent depends solely upon where parents choose to enroll their chil-
dren. The number of tutorial assistance grants provided to students
remaining in public school must equal the number of tuition aid scholar-
ships. In the 1999–2000 school year, 82% of the participating private
schools had a religious affiliation, none of the adjacent public schools
participated, and 96% of the students participating in the scholarship
program were enrolled in religiously affiliated schools. Sixty percent
of the students were from families at or below the poverty line. Cleve-
land schoolchildren also have the option of enrolling in community
schools, which are funded under state law but run by their own school
boards and receive twice the per-student funding as participating pri-
vate schools, or magnet schools, which are public schools emphasizing a
particular subject area, teaching method, or service, and for which the
school district receives the same amount per student as it does for a
student enrolled at a traditional public school. Respondents, Ohio tax-
payers, sought to enjoin the program on the ground that it violated
the Establishment Clause. The Federal District Court granted them
summary judgment, and the Sixth Circuit affirmed.
Hel d: The program does not offend the Est ablishment Clause.
Pp. 648–663.
*Together with No. 00–1777, Hanna Perkins School et al. v. Simmons-
Harris et al., and No. 00–1779, Taylor et al. v. Simmons-Harris et al.,
also on certiorari to the same court.

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640 ZELMAN v. SIMMONS-HARRIS
Syllabus
(a) Because the program was enacted for the valid secular purpose of
providing educational assistance to poor children in a demonstrably fail-
ing public school system, the question is whether the program nonethe-
less has the forbidden effect of advancing or inhibiting religion. See
Agostini v. Felton, 521 U. S. 203, 222–223. This Court’s jurisprudence
makes clear that a government aid program is not readily subject to
challenge under the Establishment Clause if it 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. See, e. g.,
Mueller v. Allen, 463 U. S. 388. Under such a program, government
aid reaches religious institutions only by way of the deliberate choices
of numerous individual recipients. The incidental advancement of a re-
ligious mission, or the perceived endorsement of a religious message, is
reasonably attributable to the individual aid recipients, not the govern-
ment, whose role ends with the disbursement of benefits. Pp. 648–653.
(b) The instant program is one of true private choice, consistent with
the Mueller line of cases, and thus constitutional. It is neutral in all
respects toward religion, and is part of Ohio’s general and multifaceted
undertaking to provide educational opportunities to children in a failed
school district. It confers educational assistance directly to a broad
class of individuals defined without reference to religion and permits
participation of all district schools—religious or nonreligious—and adja-
cent public schools. The only preference in the program is for low-
income families, who receive greater assistance and have priority for
admission. Rather than creating financial incentives that skew it to-
ward religious schools, the program creates financial disincentives: Pri-
vate schools receive only half the government assistance given to com-
munity schools and one-third that given to magnet schools, and adjacent
public schools would receive two to three times that given to private
schools. Families too have a financial disincentive, for they have to
copay a portion of private school tuition, but pay nothing at a com-
munity, magnet, or traditional public school. No reasonable observer
would think that such a neutral private choice program carries with it
the imprimatur of government endorsement. Nor is there evidence
that the program fails to provide genuine opportunities for Cleveland
parents to select secular educational options: Their children may remain
in public school as before, remain in public school with funded tutoring
aid, obtain a scholarship and choose to attend a religious school, obtain
a scholarship and choose to attend a nonreligious private school, enroll
in a community school, or enroll in a magnet school. The Establishment
Clause question whether Ohio is coercing parents into sending their
children to religious schools must be answered by evaluating all options

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641 Cite as: 536 U. S. 639 (2002)
Syllabus
Ohio provides Cleveland schoolchildren, only one of which is to obtain a
scholarship and then choose a religious school. Cleveland’s preponder-
ance of religiously affiliated schools did not result from the program, but
is a phenomenon common to many American cities. Eighty-two percent
of Cleveland’s private schools are religious, as are 81% of Ohio’s private
schools. To attribute constitutional significance to the 82% figure
would lead to the absurd result that a neutral school-choice program
might be permissible in parts of Ohio where the percentage is lower,
but not in Cleveland, where Ohio has deemed such programs most sorely
needed. Likewise, an identical private choice program might be consti-
tutional only in States with a lower percentage of religious private
schools. Respondents’ additional argument that constitutional signifi-
cance should be attached to the fact that 96% of the scholarship recipi-
ents have enrolled in religious schools was flatly rejected in Mueller.
The constitutionality of a neutral educational aid program simply does
not turn on whether and why, in a particular area, at a particular time,
most private schools are religious, or most recipients choose to use the
aid at a religious school. Finally, contrary to respondents’ argument,
Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S.
756—a case that expressly reserved judgment on the sort of program
challenged here—does not govern neutral educational assistance pro-
grams that offer aid directly to a broad class of individuals defined with-
out regard to religion. Pp. 653–663.
234 F. 3d 945, reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. O’Connor, J., post,
p. 663, and Thomas, J., post, p. 676, filed concurring opinions. Stevens,
J., filed a dissenting opinion, post, p. 684. Souter, J., filed a dissenting
opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post,
p. 686. Breyer, J., filed a dissenting opinion, in which Stevens and Sou-
ter, JJ., joined, post, p. 717.
Judith L. French, Assistant Attorney General of Ohio,
argued the cause for petitioners in No. 00–1751. With her
on the briefs were Betty D. Montgomery, Attorney General,
David M. Gormley, State Solicitor, Karen L. Lazorishak,
James G. Tassie, and Robert L. Strayer, Assistant Attorneys
General, Kenneth W. Starr, and Robert R. Gasaway. David
J. Young argued the cause for petitioners in No. 00–1777.
With him on the briefs were Michael R. Reed and David

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642 ZELMAN v. SIMMONS-HARRIS
Counsel
J. Hessler. Clint Bolick, William H. Mellor, Richard D.
Komer, Robert Freedman, David Tryon, and Charles Fried
filed briefs for petitioners in No. 00–1779.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General McCallum, Deputy
Solicitor General Kneedler, Gregory G. Garre, Robert M.
Loeb, and Lowell V. Sturgill, Jr.
Robert H. Chanin argued the cause for respondents
Simmons-Harris et al. in all cases. With him on the brief
were Andrew D. Roth, Laurence Gold, Steven R. Shapiro,
Raymond Vasvari, Elliot M. Mincberg, and Judith E.
Schaeffer. Marvin E. Frankel argued the cause for re-
spondents Gatton et al. in all cases. With him on the brief
were David J. Strom, Donald J. Mooney, Jr., and Marc D.
Stern.†
†Briefs of amici curiae urging reversal were filed for the State of Flor-
ida et al. by Robert A. Butterworth, Attorney General of Florida, Thomas
E. Warner, Solicitor General, and Matthew J. Conigliaro, Deputy Solicitor
General, and by the Attorneys General for their respective States as fol-
lows: Bill Pryor of Alabama, M. Jane Brady of Delaware, Don Stenberg
of Nebraska, D. Michael Fisher of Pennsylvania, Charles M. Condon of
South Carolina, and Randolph A. Beales of Virginia; for the State of
Wisconsin by Stephen P. Hurley, Gordon P. Giampietro, and Donald A.
Daugherty, Jr.; for Gary E. Johnson, Governor of New Mexico, by Jeffrey
S. Bucholtz; for Mayor Rudolph W. Giuliani et al. by Michael D. Hess,
Corporation Counsel of the City of New York, Leonard J. Koerner, and
Edward F. X. Hart; for Councilwoman Fannie Lewis by Steffen N. John-
son, Stephen M. Shapiro, Robert M. Dow, Jr., and Richard P. Hutchison;
for the American Education Reform Council by Louis R. Cohen, C. Boyden
Gray, and Todd Zubler; for the American Civil Rights Union by Peter J.
Ferrara; for the American Center for Law and Justice, Inc., et al. by Jay
Alan Sekulow, James M. Henderson, Sr., Colby M. May, Vincent McCar-
thy, and Walter M. Weber; for the Association of Christian Schools Interna-
tional et al. by Edward McGlynn Gaffney, Jr., and Richard A. Epstein;
for the Becket Fund for Religious Liberty by Kevin J. Hasson, Eric W.
Treene, Roman P. Storzer, Anthony R. Picarello, Jr., and Richard Gar-
nett; for the Black Alliance for Educational Options by Samuel Estreicher;
for the Catholic League for Religious and Civil Rights by Robert P.
George; for the Center for Education Reform et al. by Robert A. Destro

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643 Cite as: 536 U. S. 639 (2002)
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
The State of Ohio has established a pilot program designed
to provide educational choices to families with children who
and Joseph E. Schmitz; for the Center for Individual Freedom et al. by
Erik S. Jaffe; for Children First America et al. by Harold J. (Tex) Lezar,
Jr., and Stephen G. Gilles; for the Christian Legal Society et al. by Stuart
J. Lark and Gregory S. Baylor; for the Claremont Institute Center for
Constitutional Jurisprudence by Edwin Meese III; for the Coalition for
Local Sovereignty by Kenneth B. Clark; for the National Association of
Independent Schools by Allen G. Siegel; for the National Jewish Commis-
sion on Law and Public Affairs by Nathan Lewin, Dennis Rapps, Nathan
Diament, and David Zwiebel; for the REACH Alliance by Philip J.
Murren; for the Rutherford Institute by John W. Whitehead, Steven H.
Aden, Robert R. Melnick, and James J. Knicely; for the Solidarity Center
for Law and Justice, P. C., by James P. Kelly III; for the United States
Conference of Catholic Bishops by Mark E. Chopko, John Liekweg, and
Jeffrey Hunter Moon; and for Hugh Calkins, pro se.
Briefs of amici curiae urging affirmance were filed for the American
Jewish Committee et al. by Howard G. Kristol, Erwin Chemerinsky, Jef-
frey P. Sinensky, Kara H. Stein, Arthur H. Bryant, and Victoria W. Ni;
for the Anti-Defamation League by Martin E. Karlinsky, Daniel J. Beller,
Steven M. Freeman, and Frederick M. Lawrence; for the Council on Reli-
gious Freedom et al. by Lee Boothby and Alan J. Reinach; for the NAACP
Legal Defense and Educational Fund, Inc., et al. by Norman J. Chachkin,
Elaine R. Jones, Theodore M. Shaw, James L. Cott, Dennis D. Parker, and
Dennis Courtland Hayes; for the National Committee for Public Educa-
tion and Religious Liberty by Geoffrey F. Aronow and Stanley Geller; for
the National School Boards Association et al. by Julie K. Underwood,
Scott Bales, and James Martin; for the Ohio Association for Public Educa-
tion and Religious Liberty by Patrick Farrell Timmins, Jr.; and for the
Ohio School Boards Association et al. by Kimball H. Carey and Susan
B. Greenberger.
Briefs of amici curiae were filed for the California Alliance for Public
Schools by Robin B. Johansen and Joseph Remcho; for Vermonters for
Better Education by Michael D. Dean; for John E. Coons et al. by
Mr. Coons, pro se, and Stephen D. Sugarman, pro se; for Jesse H. Choper
et al. by Mr. Choper, pro se, William Bassett, Teresa Collett, David Forte,
Richard Garnett, Lino Graglia, Michael Heise, Gail Heriot, Roderick
Hills, Grant Nelson, Michael Perry, David Post, Charles Rice, Rosemary
Salomone, Gregory Sisk, Steve Smith, and Harry Tepker; and for Ira J.
Paul et al. by Sharon L. Browne.

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644 ZELMAN v. SIMMONS-HARRIS
Opinion of the Court
reside in the Cleveland City School District. The question
presented is whether this program offends the Establish-
ment Clause of the United States Constitution. We hold
that it does not.
There are more than 75,000 children enrolled in the Cleve-
land City School District. The majority of these children
are from low-income and minority families. Few of these
families enjoy the means to send their children to any school
other than an inner-city public school. For more than a gen-
eration, however, Cleveland’s public schools have been
among the worst performing public schools in the Nation.
In 1995, a Federal District Court declared a “crisis of magni-
tude” and placed the entire Cleveland school district under
state control. See Reed v. Rhodes, No. 1:73 CV 1300 (ND
Ohio, Mar. 3, 1995). Shortly thereafter, the state auditor
found that Cleveland’s public schools were in the midst of a
“crisis that is perhaps unprecedented in the history of Amer-
ican education.” Cleveland City School District Perform-
ance Audit 2–1 (Mar. 1996). The district had failed to meet
any of the 18 state standards for minimal acceptable per-
formance. Only 1 in 10 ninth graders could pass a basic pro-
ficiency examination, and students at all levels performed at
a dismal rate compared with students in other Ohio public
schools. More than two-thirds of high school students either
dropped or failed out before graduation. Of those students
who managed to reach their senior year, one of every four
still failed to graduate. Of those students who did graduate,
few could read, write, or compute at levels comparable to
their counterparts in other cities.
It is against this backdrop that Ohio enacted, among other
initiatives, its Pilot Project Scholarship Program, Ohio Rev.
Code Ann. §§ 3313.974–3313.979 (Anderson 1999 and Supp.
2000) (program). The program provides financial assistance
to families in any Ohio school district that is or has been
“under federal court order requiring supervision and opera-

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645 Cite as: 536 U. S. 639 (2002)
Opinion of the Court
tional management of the district by the state superintend-
ent.” § 3313.975(A). Cleveland is the only Ohio school dis-
trict to fall within that category.
The program provides two basic kinds of assistance to par-
ents of children in a covered district. First, the program
provides tuition aid for students in kindergarten through
third grade, expanding each year through eighth grade, to
attend a participating public or private school of their par-
ent’s choosing. §§ 3313.975(B) and (C)(1). Second, the pro-
gram provides tutorial aid for students who choose to remain
enrolled in public school. § 3313.975(A).
The tuition aid portion of the program is designed to pro-
vide educational choices to parents who reside in a covered
district. Any private school, whether religious or nonreli-
gious, may participate in the program and accept program
students so long as the school is located within the bound-
aries of a covered district and meets statewide educational
standards. § 313.976(A)(3). Participating private schools
must agree not to discriminate on the basis of race, reli-
gion, or ethnic background, or to “advocate or foster unlaw-
ful behavior or teach hatred of any person or group on
the basis of race, ethnicity, national origin, or religion.”
§ 3313.976(A)(6). Any public school located in a school dis-
trict adjacent to the covered district may also participate
in the program. § 3313.976(C). Adjacent public schools are
eligible to receive a $2,250 tuition grant for each program
student accepted in addition to the full amount of per-pupil
state funding attributable to each additional student.
§§ 3313.976(C), 3317.03(I)(1). 1 All participating schools,
1 Although the parties dispute the precise amount of state funding re-
ceived by suburban school districts adjacent to the Cleveland City School
District, there is no dispute that any suburban district agreeing to partici-
pate in the program would receive a $2,250 tuition grant plus the ordinary
allotment of per-pupil state funding for each program student enrolled in
a suburban public school. See Brief for Respondents Simmons-Harris

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646 ZELMAN v. SIMMONS-HARRIS
Opinion of the Court
whether public or private, are required to accept students in
accordance with rules and procedures established by the
state superintendent. §§ 3313.977(A)(1)(a)–(c).
Tuition aid is distributed to parents according to financial
need. Families with incomes below 200% of the poverty line
are given priority and are eligible to receive 90% of private
school tuition up to $2,250. §§ 3313.978(A) and (C)(1). For
these lowest income families, participating private schools
may not charge a parental copayment greater than $250.
§ 3313.976(A)(8). For all other families, the program pays
75% of tuition costs, up to $1,875, with no copayment cap.
§§ 3313.976(A)(8), 3313.978(A). These families receive tu-
ition aid only if the number of available scholarships exceeds
the number of low-income children who choose to partici-
pate.2 Where tuition aid is spent depends solely upon where
parents who receive tuition aid choose to enroll their child.
If parents choose a private school, checks are made pay-
able to the parents who then endorse the checks over to the
chosen school. § 3313.979.
The tutorial aid portion of the program provides tutorial
assistance through grants to any student in a covered dis-
trict who chooses to remain in public school. Parents ar-
range for registered tutors to provide assistance to their
children and then submit bills for those services to the State
for payment. §§ 3313.976(D), 3313.979(C). Students from
low-income families receive 90% of the amount charged for
such assistance up to $360. All other students receive 75%
of that amount. § 3313.978(B). The number of tutorial as-
sistance grants offered to students in a covered district must
equal the number of tuition aid scholarships provided to stu-
et al. 30, n. 11 (suburban schools would receive “on average, approximately,
$4,750” per program student); Brief for Petitioners in No. 00–1779, p. 39
(suburban schools would receive “about $6,544” per program student).
2 The number of available scholarships per covered district is deter-
mined annually by the Ohio Superintendent for Public Instruction.
§§ 3313.978(A)–(B).

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647 Cite as: 536 U. S. 639 (2002)
Opinion of the Court
dents enrolled at participating private or adjacent public
schools. § 3313.975(A).
The program has been in operation within the Cleveland
City School District since the 1996–1997 school year. In the
1999–2000 school year, 56 private schools participated in the
program, 46 (or 82%) of which had a religious affiliation.
None of the public schools in districts adjacent to Cleveland
have elected to participate. More than 3,700 students par-
ticipated in the scholarship program, most of whom (96%)
enrolled in religiously affiliated schools. Sixty percent of
these students were from families at or below the poverty
line. In the 1998–1999 school year, approximately 1,400
Cleveland public school students received tutorial aid. This
number was expected to double during the 1999–2000
school year.
The program is part of a broader undertaking by the State
to enhance the educational options of Cleveland’s school-
children in response to the 1995 takeover. That undertak-
ing includes programs governing community and magnet
schools. Community schools are funded under state law but
are run by their own school boards, not by local school dis-
tricts. §§ 3314.01(B), 3314.04. These schools enjoy aca-
demic independence to hire their own teachers and to deter-
mine their own curriculum. They can have no religious
affiliation and are required to accept students by lottery.
During the 1999–2000 school year, there were 10 startup
community schools in the Cleveland City School District with
more than 1,900 students enrolled. For each child enrolled
in a community school, the school receives state funding of
$4,518, twice the funding a participating program school
may receive.
Magnet schools are public schools operated by a local
school board that emphasize a particular subject area, teach-
ing method, or service to students. For each student en-
rolled in a magnet school, the school district receives $7,746,
including state funding of $4,167, the same amount received

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per student enrolled at a traditional public school. As of
1999, parents in Cleveland were able to choose from among
23 magnet schools, which together enrolled more than 13,000
students in kindergarten through eighth grade. These
schools provide specialized teaching methods, such as Mon-
tessori, or a particularized curriculum focus, such as foreign
language, computers, or the arts.
In 1996, respondents, a group of Ohio taxpayers, chal-
lenged the Ohio program in state court on state and federal
grounds. The Ohio Supreme Court rejected respondents’
federal claims, but held that the enactment of the program
violated certain procedural requirements of the Ohio Consti-
tution. Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 8–9, 711
N. E. 2d 203, 211 (1999). The state legislature immediately
cured this defect, leaving the basic provisions discussed
above intact.
In July 1999, respondents filed this action in United States
District Court, seeking to enjoin the reenacted program on
the ground that it violated the Establishment Clause of the
United States Constitution. In August 1999, the District
Court issued a preliminary injunction barring further imple-
mentation of the program, 54 F. Supp. 2d 725 (ND Ohio),
which we stayed pending review by the Court of Appeals,
528 U. S. 983 (1999). In December 1999, the District Court
granted summary judgment for respondents. 72 F. Supp. 2d
834. In December 2000, a divided panel of the Court of Ap-
peals affirmed the judgment of the District Court, finding
that the program had the “primary effect” of advancing
religion in violation of the Establishment Clause. 234 F.
3d 945 (CA6). The Court of Appeals stayed its mandate
pending disposition in this Court. App. to Pet. for Cert.
in No. 00–1779, p. 151. We granted certiorari, 533 U. S. 976
(2001), and now reverse the Court of Appeals.
The Establishment Clause of the First Amendment, ap-
plied to the States through the Fourteenth Amendment, pre-
vents a State from enacting laws that have the “purpose”

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or “effect” of advancing or inhibiting religion. Agostini v.
Felton, 521 U. S. 203, 222–223 (1997) (“[W]e continue to ask
whether the government acted with the purpose of advanc-
ing or inhibiting religion [and] whether the aid has the
‘effect’ of advancing or inhibiting religion” (citations omit-
ted)). There is no dispute that the program challenged here
was enacted for the valid secular purpose of providing edu-
cational assistance to poor children in a demonstrably fail-
ing public school system. Thus, the question presented is
whether the Ohio program nonetheless has the forbidden “ef-
fect” of advancing or inhibiting religion.
To answer that question, our decisions have drawn a con-
sistent distinction between government programs that pro-
vide aid directly to religious schools, Mitchell v. Helms, 530
U. S. 793, 810–814 (2000) (plurality opinion); id., at 841–844
(O’Connor, J., concurring in judgment); Agostini, supra, at
225–227; Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819, 842 (1995) (collecting cases), and programs of
true private choice, in which government aid reaches reli-
gious schools only as a result of the genuine and independent
choices of private individuals, Mueller v. Allen, 463 U. S. 388
(1983); Witters v. Washington Dept. of Servs. for Blind, 474
U. S. 481 (1986); Zobrest v. Catalina Foothills School Dist.,
509 U. S. 1 (1993). While our jurisprudence with respect to
the constitutionality of direct aid programs has “changed sig-
nificantly” over the past two decades, Agostini, supra, at
236, our jurisprudence with respect to true private choice
programs has remained consistent and unbroken. Three
times we have confronted Establishment Clause challenges
to neutral government programs that provide aid directly
to a broad class of individuals, who, in turn, direct the aid
to religious schools or institutions of their own choosing.
Three times we have rejected such challenges.
In Mueller, we rejected an Establishment Clause chal-
lenge to a Minnesota program authorizing tax deductions for
various educational expenses, including private school tu-

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ition costs, even though the great majority of the program’s
beneficiaries (96%) were parents of children in religious
schools. We began by focusing on the class of beneficiaries,
finding that because the class included “all parents,” includ-
ing parents with “children [who] attend nonsectarian private
schools or sectarian private schools,” 463 U. S., at 397 (em-
phasis in original), the program was “not readily subject to
challenge under the Establishment Clause,” id., at 399 (citing
Widmar v. Vincent, 454 U. S. 263, 274 (1981) (“The provision
of benefits to so broad a spectrum of groups is an important
index of secular effect”)). Then, viewing the program as a
whole, we emphasized the principle of private choice, noting
that public funds were made available to religious schools
“only as a result of numerous, private choices of individ-
ual parents of school-age children.” 463 U. S., at 399–400.
This, we said, ensured that “no ‘imprimatur of state ap-
proval’ can be deemed to have been conferred on any particu-
lar religion, or on religion generally.” Id., at 399 (quoting
Widmar, supra, at 274)). We thus found it irrelevant to the
constitutional inquiry that the vast majority of beneficiaries
were parents of children in religious schools, saying:
“We would be loath to adopt a rule grounding the consti-
tutionality of a facially neutral law on annual reports
reciting the extent to which various classes of private
citizens claimed benefits under the law.” 463 U. S.,
at 401.
That the program was one of true private choice, with no
evidence that the State deliberately skewed incentives to-
ward religious schools, was sufficient for the program to sur-
vive scrutiny under the Establishment Clause.
In Witters, we used identical reasoning to reject an Estab-
lishment Clause challenge to a vocational scholarship pro-
gram that provided tuition aid to a student studying at a
religious institution to become a pastor. Looking at the pro-
gram as a whole, we observed that “[a]ny aid . . . that ulti-

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mately flows to religious institutions does so only as a result
of the genuinely independent and private choices of aid recip-
ients.” 474 U. S., at 487. We further remarked that, as in
Mueller, “[the] program is made available generally without
regard to the sectarian-nonsectarian, or public-nonpublic na-
ture of the institution benefited.” 474 U. S., at 487 (internal
quotation marks omitted). In light of these factors, we held
that the program was not inconsistent with the Establish-
ment Clause. Id., at 488–489.
Five Members of the Court, in separate opinions, empha-
sized the general rule from Mueller that the amount of gov-
ernment aid channeled to religious institutions by individual
aid recipients was not relevant to the constitutional inquiry.
474 U. S., at 490–491 (Powell, J., joined by Burger, C. J., and
Rehnquist, J., concurring) (citing Mueller, supra, at 398–
399); 474 U. S., at 493 (O’Connor, J., concurring in part and
concurring in judgment); id., at 490 (White, J., concurring).
Our holding thus rested not on whether few or many recipi-
ents chose to expend government aid at a religious school
but, rather, on whether recipients generally were empow-
ered to direct the aid to schools or institutions of their own
choosing.
Finally, in Zobrest, we applied Mueller and Witters to re-
ject an Establishment Clause challenge to a federal program
that permitted sign-language interpreters to assist deaf chil-
dren enrolled in religious schools. Reviewing our earlier
decisions, we stated that “government programs that neu-
trally provide benefits to a broad class of citizens defined
without reference to religion are not readily subject to an
Establishment Clause challenge.” 509 U. S., at 8. Looking
once again to the challenged program as a whole, we ob-
served that the program “distributes benefits neutrally to
any child qualifying as ‘disabled.’ ” Id., at 10. Its “primary
beneficiaries,” we said, were “disabled children, not sectarian
schools.” Id., at 12.

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We further observed that “[b]y according parents freedom
to select a school of their choice, the statute ensures that a
government-paid interpreter will be present in a sectarian
school only as a result of the private decision of individual
parents.” Id., at 10. Our focus again was on neutrality and
the principle of private choice, not on the number of program
beneficiaries attending religious schools. Id., at 10–11.
See, e. g., Agostini, 521 U. S., at 229 (“Zobrest did not turn
on the fact that James Zobrest had, at the time of litigation,
been the only child using a publicly funded sign-language
interpreter to attend a parochial school”). Because the
program ensured that parents were the ones to select a reli-
gious school as the best learning environment for their
handicapped child, the circuit between government and reli-
gion was broken, and the Establishment Clause was not
implicated.
Mueller, Witters, and Zobrest thus make clear that where
a government aid program is neutral with respect to reli-
gion, and provides assistance directly to a broad class of citi-
zens who, in turn, direct government aid to religious schools
wholly as a result of their own genuine and independent pri-
vate choice, the program is not readily subject to challenge
under the Establishment Clause. A program that shares
these features permits government aid to reach religious in-
stitutions only by way of the deliberate choices of numerous
individual recipients. The incidental advancement of a reli-
gious mission, or the perceived endorsement of a religious
message, is reasonably attributable to the individual recipi-
ent, not to the government, whose role ends with the dis-
bursement of benefits. As a plurality of this Court re-
cently observed:
“[I]f numerous private choices, rather than the single
choice of a government, determine the distribution of
aid, pursuant to neutral eligibility criteria, then a gov-
ernment cannot, or at least cannot easily, grant special

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favors that might lead to a religious establishment.”
Mitchell, 530 U. S., at 810.
See also id., at 843 (O’Connor, J., concurring in judgment)
(“[W]hen government aid supports a school’s religious mis-
sion only because of independent decisions made by numer-
ous individuals to guide their secular aid to that school, ‘no
reasonable observer is likely to draw from the facts . . . an
inference that the State itself is endorsing a religious prac-
tice or belief ’ ” (quoting Witters, 474 U. S., at 493 (O’Connor,
J., concurring in part and concurring in judgment))). It
is precisely for these reasons that we have never found a
program of true private choice to offend the Establishment
Clause.
We believe that the program challenged here is a program
of true private choice, consistent with Mueller, Witters, and
Zobrest, and thus constitutional. As was true in those cases,
the Ohio program is neutral in all respects toward religion.
It is part of a general and multifaceted undertaking by the
State of Ohio to provide educational opportunities to the
children of a failed school district. It confers 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 City School District. The
program permits the participation of all schools within the
district, religious or nonreligious. Adjacent public schools
also may participate and have a financial incentive to do so.
Program benefits are available to participating families on
neutral terms, with no reference to religion. The only pref-
erence stated anywhere in the program is a preference for
low-income families, who receive greater assistance and are
given priority for admission at participating schools.
There are no “financial incentive[s]” that “ske[w]” the pro-
gram toward religious schools. Witters, supra, at 487–488.
Such incentives “[are] not present . . . where the aid is allo-
cated on the basis of neutral, secular criteria that neither
favor nor disfavor religion, and is made available to both reli-

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654 ZELMAN v. SIMMONS-HARRIS
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gious and secular beneficiaries on a nondiscriminatory basis.”
Agostini, supra, at 231. The program here in fact creates
financial disincentives for religious schools, with private
schools receiving only half the government assistance given
to community schools and one-third the assistance given to
magnet schools. Adjacent public schools, should any choose
to accept program students, are also eligible to receive two
to three times the state funding of a private religious school.
Families too have a financial disincentive to choose a private
religious school over other schools. Parents that choose to
participate in the scholarship program and then to enroll
their children in a private school (religious or nonreligious)
must copay a portion of the school’s tuition. Families that
choose a community school, magnet school, or traditional
public school pay nothing. Although such features of the
program are not necessary to its constitutionality, they
clearly dispel the claim that the program “creates . . . finan-
cial incentive[s] for parents to choose a sectarian school.”
Zobrest, 509 U. S., at 10.3
Respondents suggest that even without a financial incen-
tive for parents to choose a religious school, the program
creates a “public perception that the State is endorsing
religious practices and beliefs.” Brief for Respondents
Simmons-Harris et al. 37–38. But we have repeatedly rec-
3 Justice Souter suggests the program is not “neutral” because pro-
gram students cannot spend scholarship vouchers at traditional public
schools. Post, at 697–698 (dissenting opinion). This objection is mis-
taken: Public schools in Cleveland already receive $7,097 in public funding
per pupil—$4,167 of which is attributable to the State. App. 56a. Pro-
gram students who receive tutoring aid and remain enrolled in traditional
public schools therefore direct almost twice as much state funding to their
chosen school as do program students who receive a scholarship and attend
a private school. Ibid. Justice Souter does not seriously claim that
the program differentiates based on the religious status of beneficiaries or
providers of services, the touchstone of neutrality under the Establish-
ment Clause. Mitchell v. Helms, 530 U. S. 793, 809 (2000) (plurality opin-
ion); id., at 838 (O’Connor, J., concurring in judgment).

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ognized that no reasonable observer would think a neutral
program of private choice, where state aid reaches religious
schools solely as a result of the numerous independent deci-
sions of private individuals, carries with it the imprimatur
of government endorsement. Mueller, 463 U. S., at 399;
Witters, supra, at 488–489; Zobrest, supra, at 10–11; e. g.,
Mitchell, supra, at 842–843 (O’Connor, J., concurring in
judgment) (“In terms of public perception, a government
program of direct aid to religious schools . . . differs meaning-
fully from the government distributing aid directly to indi-
vidual students who, in turn, decide to use the aid at the
same religious schools”). The argument is particularly mis-
placed here since “the reasonable observer in the endorse-
ment inquiry must be deemed aware” of the “history and
context” underlying a challenged program. Good News
Club v. Milford Central School, 533 U. S. 98, 119 (2001) (in-
ternal quotation marks omitted). See also Capitol Square
Review and Advisory Bd. v. Pinette, 515 U. S. 753, 780 (1995)
(O’Connor, J., concurring in part and concurring in judg-
ment). Any objective observer familiar with the full history
and context of the Ohio program would reasonably view it as
one aspect of a broader undertaking to assist poor children in
failed schools, not as an endorsement of religious schooling
in general.
There also 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 coerc-

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ing parents into sending their children to religious schools,
and that question must be answered by evaluating all op-
tions Ohio provides Cleveland schoolchildren, only one of
which is to obtain a program scholarship and then choose a
religious school.
Justice Souter speculates that because more private re-
ligious schools currently participate in the program, the pro-
gram itself must somehow discourage the participation of
private nonreligious schools. Post, at 703–705 (dissenting
opinion). 4 But Cleveland’s preponderance of religiously af-
4 Justice Souter appears to base this claim on the unfounded assump-
tion that capping the amount of tuition charged to low-income students (at
$2,500) favors participation by religious schools. Post, at 704–705 (dis-
senting opinion). But elsewhere he claims that the program spends too
much money on private schools and chides the state legislature for even
proposing to raise the scholarship amount for low-income recipients.
Post, at 697–698, 710–711, 714–715. His assumption also finds no support
in the record, which shows that nonreligious private schools operating in
Cleveland also seek and receive substantial third-party contributions.
App. 194a–195a; App. to Pet. for Cert. in No. 00–1777, p. 119a. Indeed,
the actual operation of the program refutes Justice Souter’s argument
that few but religious schools can afford to participate: Ten secular private
schools operated within the Cleveland City School District when the pro-
gram was adopted. Reply Brief for Petitioners in No. 00–1777, p. 4 (citing
Ohio Educational Directory, 1999–2000 School Year, Alphabetic List of
Nonpublic Schools, Ohio Dept. of Ed.). All 10 chose to participate in the
program and have continued to participate to this day. App. 281a– 286a.
And while no religious schools have been created in response to the pro-
gram, several nonreligious schools have been created, id., at 144a–148a,
224a–225a, in spite of the fact that a principal barrier to entry of new
private schools is the uncertainty caused by protracted litigation which
has plagued the program since its inception, post, at 672 (O’Connor, J.,
concurring) (citing App. 225a, 227a). See also 234 F. 3d 945, 970 (CA6
2000) (Ryan, J., concurring in part and dissenting in part) (“There is not a
scintilla of evidence in this case that any school, public or private, has been
discouraged from participating in the school voucher program because it
cannot ‘afford’ to do so”). Similarly mistaken is Justice Souter’s reli-
ance on the low enrollment of scholarship students in nonreligious schools

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filiated private schools certainly did not arise as a result of
the program; it is a phenomenon common to many Ameri-
can cities. See U. S. Dept. of Ed., National Center for Edu-
cation Statistics, Private School Universe Survey: 1999–2000,
pp. 2–4 (NCES 2001–330, 2001) (hereinafter Private School
Universe Survey) (cited in Brief for United States as Amicus
Curiae 24). Indeed, by all accounts the program has cap-
tured a remarkable cross-section of private schools, religious
and nonreligious. It is true that 82% of Cleveland’s partici-
pating private schools are religious schools, but it is also true
that 81% of private schools in Ohio are religious schools.
See Brief for State of Florida et al. as Amici Curiae 16 (cit-
ing Private School Universe Survey). To attribute constitu-
tional significance to this figure, moreover, would lead to the
absurd result that a neutral school-choice program might be
permissible in some parts of Ohio, such as Columbus, where
a lower percentage of private schools are religious schools,
see Ohio Educational Directory (Lodging of Respondents
Gatton et al., available in Clerk of Court’s case file), and
Reply Brief for Petitioners in No. 00–1751, p. 12, n. 1, but
not in inner-city Cleveland, where Ohio has deemed such
programs most sorely needed, but where the preponderance
of religious schools happens to be greater. Cf. Brief for
State of Florida et al. as Amici Curiae 17 (“[T]he percent-
ages of sectarian to nonsectarian private schools within Flor-
ida’s 67 school districts . . . vary from zero to 100 percent”).
Likewise, an identical private choice program might be con-
stitutional in some States, such as Maine or Utah, where less
during the 1999–2000 school year. Post, at 704 (citing Brief for California
Alliance for Public Schools as Amicus Curiae 15). These figures ignore
the fact that the number of program students enrolled in nonreligious
schools has widely varied from year to year, infra, at 659; e. g., n. 5, infra,
underscoring why the constitutionality of a neutral choice program does
not turn on annual tallies of private decisions made in any given year by
thousands of individual aid recipients, infra, at 659 (citing Mueller v.
Allen, 463 U. S. 388, 401 (1983)).

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than 45% of private schools are religious schools, but not in
other States, such as Nebraska or Kansas, where over 90%
of private schools are religious schools. Id., at 15–16 (citing
Private School Universe Survey).
Respondents and Justice Souter claim that even if we
do not focus on the number of participating schools that are
religious schools, we should attach constitutional significance
to the fact that 96% of scholarship recipients have enrolled
in religious schools. They claim that this alone proves par-
ents lack genuine choice, even if no parent has ever said so.
We need not consider this argument in detail, since it was
flatly rejected in Mueller, where we found it irrelevant that
96% of parents taking deductions for tuition expenses paid
tuition at religious schools. Indeed, we have recently found
it irrelevant even to the constitutionality of a direct aid pro-
gram that a vast majority of program benefits went to reli-
gious schools. See Agostini, 521 U. S., at 229 (“Nor are we
willing to conclude that the constitutionality of an aid pro-
gram depends on the number of sectarian school students
who happen to receive the otherwise neutral aid” (citing
Mueller, 463 U. S., at 401)); see also Mitchell, 530 U. S., at
812, n. 6 (plurality opinion) (“[Agostini] held that the propor-
tion of aid benefiting students at religious schools pursuant
to a neutral program involving private choices was irrelevant
to the constitutional inquiry”); id., at 848 (O’Connor, J., con-
curring in judgment) (same) (quoting Agostini, supra, at
229). The constitutionality of a neutral educational aid pro-
gram simply does not turn on whether and why, in a particu-
lar area, at a particular time, most private schools are run
by religious organizations, or most recipients choose to use
the aid at a religious school. As we said in Mueller, “[s]uch
an approach would scarcely provide the certainty that this
field stands in need of, nor can we perceive principled stand-
ards by which such statistical evidence might be evaluated.”
463 U. S., at 401.

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This point is aptly illustrated here. The 96% figure upon
which respondents and Justice Souter rely discounts en-
tirely (1) the more than 1,900 Cleveland children enrolled
in alternative community schools, (2) the more than 13,000
children enrolled in alternative magnet schools, and (3)
the more than 1,400 children enrolled in traditional public
schools with tutorial assistance. See supra, at 647–648.
Including some or all of these children in the denominator of
children enrolled in nontraditional schools during the 1999–
2000 school year drops the percentage enrolled in religious
schools from 96% to under 20%. See also J. Greene, The
Racial, Economic, and Religious Context of Parental Choice
in Cleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting
that only 16.5% of nontraditional schoolchildren in Cleveland
choose religious schools). The 96% figure also represents
but a snapshot of one particular school year. In the 1997–
1998 school year, by contrast, only 78% of scholarship recipi-
ents attended religious schools. See App. to Pet. for Cert.
in No. 00–1751, p. 5a. The difference was attributable to
two private nonreligious schools that had accepted 15% of all
scholarship students electing instead to register as commu-
nity schools, in light of larger per-pupil funding for commu-
nity schools and the uncertain future of the scholarship pro-
gram generated by this litigation. See App. 59a–62a, 209a,
223a–227a.5 Many of the students enrolled in these schools
5 The fluctuations seen in the Cleveland program are hardly atypical.
Experience in Milwaukee, which since 1991 has operated an educational
choice program similar to the Ohio program, demonstrates that the mix of
participating schools fluctuates significantly from year to year based on a
number of factors, one of which is the uncertainty caused by persistent
litigation. See App. 218a, 229a–236a; Brief for State of Wisconsin as Ami-
cus Curiae 10–13 (hereinafter Brief for Wisconsin) (citing Wisconsin Dept.
of Public Instruction, Milwaukee Parental Choice Program Facts and Fig-
ures for 2001–2002). Since the Wisconsin Supreme Court declared
the Milwaukee program constitutional in 1998, Jackson v. Benson, 218
Wis. 2d 835, 578 N. W. 2d 602, several nonreligious private schools have
entered the Milwaukee market, and now represent 32% of all participating

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as scholarship students remained enrolled as community
school students, id., at 145a–146a, thus demonstrating the
arbitrariness of counting one type of school but not the other
to assess primary effect, e. g., Ohio Rev. Code Ann. § 3314.11
(Anderson 1999) (establishing a single “office of school op-
tions” to “provide services that facilitate the management of
the community schools program and the pilot project scholar-
ship program”). In spite of repeated questioning from the
Court at oral argument, respondents offered no convincing
justification for their approach, which relies entirely on such
arbitrary classifications. Tr. of Oral Arg. 52–60.6
schools. Brief for Wisconsin 11–12. Similarly, the number of program
students attending nonreligious private schools increased from 2,048 to
3,582; these students now represent 33% of all program students. Id., at
12–13. There are currently 34 nonreligious private schools participating
in the Milwaukee program, a nearly five-fold increase from the 7 nonreli-
gious schools that participated when the program began in 1990. See
App. 218a; Brief for Wisconsin 12. And the total number of students en-
rolled in nonreligious schools has grown from 337 when the program began
to 3,582 in the most recent school year. See App. 218a, 234a–236a; Brief
for Wisconsin 12–13. These numbers further demonstrate the wisdom of
our refusal in Mueller v. Allen, 463 U. S., at 401, to make the constitution-
ality of such a program depend on “annual reports reciting the extent to
which various classes of private citizens claimed benefits under the law.”
6 Justice Souter and Justice Stevens claim that community schools
and magnet schools are separate and distinct from program schools, simply
because the program itself does not include community and magnet school
options. Post, at 698–701 (Souter, J., dissenting); post, at 685 (Stevens,
J., dissenting). But none of the dissenting opinions explain how there
is any perceptible difference between scholarship schools, community
schools, or magnet schools from the perspective of Cleveland parents look-
ing to choose the best educational option for their school-age children.
Parents who choose a program school in fact receive from the State pre-
cisely what parents who choose a community or magnet school receive—
the opportunity to send their children largely at state expense to schools
they prefer to their local public school. See, e. g., App. 147a, 168a–169a;
App. in Nos. 00–3055, etc. (CA6), pp. 1635–1645 and 1657–1673 (Cleveland
parents who enroll their children in schools other than local public schools
typically explore all state-funded options before choosing an alternative
school).

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Respondents finally claim that we should look to Commit-
tee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S.
756 (1973), to decide these cases. We disagree for two rea-
sons. First, the program in Nyquist was quite different
from the program challenged here. Nyquist involved a New
York program that gave a package of benefits exclusively
to private schools and the parents of private school enroll-
ees. Although the program was enacted for ostensibly secu-
lar purposes, id., at 773–774, we found that its “function”
was “unmistakably to provide desired financial support for
nonpublic, sectarian institutions,” id., at 783 (emphasis
added). Its genesis, we said, was that private religious
schools faced “increasingly grave fiscal problems.” Id.,
at 795. The program thus provided direct money grants to
religious schools. Id., at 762–764. It provided tax benefits
“unrelated to the amount of money actually expended by any
parent on tuition,” ensuring a windfall to parents of children
in religious schools. Id., at 790. It similarly provided tu-
ition reimbursements designed explicitly to “offe[r] . . . an
incentive to parents to send their children to sectarian
schools.” Id., at 786. Indeed, the program flatly prohibited
the participation of any public school, or parent of any public
school enrollee. Id., at 763–765. Ohio’s program shares
none of these features.
Second, were there any doubt that the program challenged
in Nyquist is far removed from the program challenged here,
we expressly reserved judgment with respect to “a case in-
volving 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.” Id., at 782–783, n. 38. That, of course, is the
very question now before us, and it has since been answered,
first in Mueller, 463 U. S., at 398–399 (“[A] program . . . that
neutrally provides state assistance to a broad spectrum of
citizens is not readily subject to challenge under the Estab-
lishment Clause” (citing Nyquist, supra, at 782–783, n. 38)),

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Opinion of the Court
then in Witters, 474 U. S., at 487 (“Washington’s program is
‘made available generally without regard to the sectarian-
nonsectarian, or public-nonpublic nature of the institution
benefited’ ” (quoting Nyquist, supra, at 782–783, n. 38)), and
again in Zobrest, 509 U. S., at 12–13 (“[T]he function of the
[program] is hardly ‘to provide desired financial support for
nonpublic, sectarian institutions’ ” (quoting Nyquist, supra,
at 782–783, n. 38)). To the extent the scope of Nyquist has
remained an open question in light of these later decisions,
we now hold that Nyquist does not govern neutral educa-
tional assistance programs that, like the program here, offer
aid directly to a broad class of individual recipients defined
without regard to religion. 7
In sum, the 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
7 Justice Breyer would raise the invisible specters of “divisiveness”
and “religious strife” to find the program unconstitutional. Post, at 719,
725–728 (dissenting opinion). It is unclear exactly what sort of principle
Justice Breyer has in mind, considering that the program has ignited no
“divisiveness” or “strife” other than this litigation. Nor is it clear where
Justice Breyer would locate this presumed authority to deprive Cleve-
land residents of a program that they have chosen but that we subjectively
find “divisive.” We quite rightly have rejected the claim that some specu-
lative potential for divisiveness bears on the constitutionality of educa-
tional aid programs. Mitchell v. Helms, 530 U. S., at 825 (plurality opin-
ion) (“The dissent resurrects the concern for political divisiveness that
once occupied the Court but that post-Aguilar cases have rightly disre-
garded”) (citing cases); id., at 825–826 (“ ‘It is curious indeed to base our
interpretation of the Constitution on speculation as to the likelihood of a
phenomenon which the parties may create merely by prosecuting a law-
suit’ ” (quoting Aguilar v. Felton, 473 U. S. 402, 429 (1985) (O’Connor,
J., dissenting))).

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O’Connor, J., concurring
decisions rejecting challenges to similar programs, we hold
that the program does not offend the Establishment Clause.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice O’Connor, concurring.
The Court holds that Ohio’s Pilot Project Scholarship Pro-
gram, Ohio Rev. Code Ann. §§ 3313.974–3313.979 (Anderson
1999 and Supp. 2000) (voucher program), survives respond-
ents’ Establishment Clause challenge. While I join the
Court’s opinion, I write separately for two reasons. First,
although the Court takes an important step, I do not believe
that today’s decision, when considered in light of other long-
standing government programs that impact religious organi-
zations and our prior Establishment Clause jurisprudence,
marks a dramatic break from the past. Second, given the
emphasis the Court places on verifying that parents of
voucher students in religious schools have exercised “true
private choice,” I think it is worth elaborating on the Court’s
conclusion that this inquiry should consider all reasonable
educational alternatives to religious schools that are avail-
able to parents. To do otherwise is to ignore how the educa-
tional system in Cleveland actually functions.
I
These cases are different from prior indirect aid cases in
part because a significant portion of the funds appropriated
for the voucher program reach religious schools without re-
strictions on the use of these funds. The share of public
resources that reach religious schools is not, however, as
significant as respondents suggest. See, e. g., Brief for
Respondents Simmons-Harris et al. 1–2. Data from the
1999–2000 school year indicate that 82 percent of schools
participating in the voucher program were religious and that
96 percent of participating students enrolled in religious

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664 ZELMAN v. SIMMONS-HARRIS
O’Connor, J., concurring
schools, see App. in Nos. 00–3055, etc. (CA6), p. 1679 (46 of
56 private schools in the program are religiously affiliated;
3,637 of 3,765 voucher students attend religious private
schools), but these data are incomplete. These statistics do
not take into account all of the reasonable educational choices
that may be available to students in Cleveland public schools.
When one considers the option to attend community schools,
the percentage of students enrolled in religious schools falls
to 62.1 percent. If magnet schools are included in the mix,
this percentage falls to 16.5 percent. See J. Greene, The Ra-
cial, Economic, and Religious Context of Parental Choice in
Cleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting
2,087 students in community schools and 16,184 students in
magnet schools).
Even these numbers do not paint a complete picture. The
Cleveland program provides voucher applicants from low-
income families with up to $2,250 in tuition assistance and
provides the remaining applicants with up to $1,875 in tuition
assistance. §§ 3313.976(A)(8), 3313.978(A) and (C)(1). In
contrast, the State provides community schools $4,518 per
pupil and magnet schools, on average, $7,097 per pupil. Af-
fidavit of Caroline M. Hoxby ¶¶ 4b, 4c, App. 56a. Even if
one assumes that all voucher students came from low-income
families and that each voucher student used up the entire
$2,250 voucher, at most $8.2 million of public funds flowed to
religious schools under the voucher program in 1999–2000.
Although just over one-half as many students attended com-
munity schools as religious private schools on the state fisc,
the State spent over $1 million more—$9.4 million—on stu-
dents in community schools than on students in religious pri-
vate schools because per-pupil aid to community schools is
more than double the per-pupil aid to private schools under
the voucher program. Moreover, the amount spent on
religious private schools is minor compared to the $114.8
million the State spent on students in the Cleveland mag-
net schools.

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Although $8.2 million is no small sum, it pales in compari-
son to the amount of funds that federal, state, and local gov-
ernments already provide religious institutions. Religious
organizations may qualify for exemptions from the federal
corporate income tax, see 26 U. S. C. § 501(c)(3); the corporate
income tax in many States, see, e. g., Cal. Rev. & Tax. Code
Ann. § 23701d (West 1992); and property taxes in all 50
States, see Turner, Property Tax Exemptions for Nonprofits,
12 Probate & Property 25 (Sept. /Oct. 1998); and clergy qual-
ify for a federal tax break on income used for housing
expenses, 26 U. S. C. § 1402(a)(8). In addition, the Federal
Government provides individuals, corporations, trusts, and
estates a tax deduction for charitable contributions to quali-
fied religious groups. See §§ 170, 642(c). Finally, the Fed-
eral Government and certain state governments provide tax
credits for educational expenses, many of which are spent on
education at religious schools. See, e. g., § 25A (Hope tax
credit); Minn. Stat. § 290.0674 (Supp. 2001).
Most of these tax policies are well established, see, e. g.,
Mueller v. Allen, 463 U. S. 388 (1983) (upholding Minne-
sota tax deduction for educational expenses); Walz v. Tax
Comm’n of City of New York, 397 U. S. 664 (1970) (upholding
an exemption for religious organizations from New York
property tax), yet confer a significant relative benefit on reli-
gious institutions. The state property tax exemptions for
religious institutions alone amount to very large sums annu-
ally. For example, available data suggest that Colorado’s
exemption lowers that State’s tax revenues by more than
$40 million annually, see Rabey, Exemptions a Matter of
Faith: No Proof Required of Tax-Free Churches, Colorado
Springs Gazette Telegraph, Oct. 26, 1992, p. B1; Colorado
Debates Church, Nonprofit Tax-Exempt Status, Philadelphia
Enquirer, Oct. 4, 1996, p. 8; Maryland’s exemption low-
ers revenues by more than $60 million, see Maryland Dept.
of Assessment and Taxation, 2001 SDAT Annual Report
(Apr. 25, 2002), http://www.dat.state.md.us/sdatweb/stats/

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666 ZELMAN v. SIMMONS-HARRIS
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01ar_rpt.html (Internet sources available in Clerk of Court’s
case file); Wisconsin’s exemption lowers revenues by approxi-
mately $122 million, see Wisconsin Dept. of Revenue, Divi-
sion of Research and Analysis, Summary of Tax Exemption
Devices 2001, Property Tax (Apr. 25, 2002), http://www.dor.
state.wi.us/ra/sum00pro.html ($5.688 billion in exempt reli-
gious property; statewide average property tax rate of
$21.46 per $1,000 of property); and Louisiana’s exemption,
looking just at the city of New Orleans, lowers revenues by
over $36 million, see Bureau of Governmental Research,
Property Tax Exemptions and Assessment Administration
in Orleans Parish: Summary and Recommendations 2 (Dec.
1999) ($22.6 million for houses of worship and $14.1 million
for religious schools). As for the Federal Government, the
tax deduction for charitable contributions reduces federal
tax revenues by nearly $25 billion annually, see U. S. Dept.
of Commerce, Bureau of Census, Statistical Abstract of the
United States 344 (2000) (hereinafter Statistical Abstract),
and it is reported that over 60 percent of household charita-
ble contributions go to religious charities, id., at 397. Even
the relatively minor exemptions lower federal tax receipts
by substantial amounts. The parsonage exemption, for ex-
ample, lowers revenues by around $500 million. See Diaz,
Ramstad Prepares Bill to Retain Tax Break for Clergy’s
Housing, Star Tribune (Minneapolis-St. Paul), Mar. 30, 2002,
p. 4A.
These tax exemptions, which have “much the same effect
as [cash grants] . . . of the amount of tax [avoided],” Regan
v. Taxation With Representation of Wash., 461 U. S. 540, 544
(1983); see also Rosenberger v. Rector and Visitors of Univ.
of Va., 515 U. S. 819, 859–860, esp. n. 4 (1995) (Thomas, J.,
concurring), are just part of the picture. Federal dollars
also reach religiously affiliated organizations through pub-
lic health programs such as Medicare, 42 U. S. C. §§ 1395–
1395ggg, and Medicaid, § 1396 et seq., through educational
programs such as the Pell Grant program, 20 U. S. C. § 1070a,
and the G. I. Bill of Rights, 38 U. S. C. §§ 3451, 3698; and

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O’Connor, J., concurring
through childcare programs such as the Child Care and De-
velopment Block Grant Program (CCDBG), 42 U. S. C. § 9858
(1994 ed., Supp. V). Medicare and Medicaid provide federal
funds to pay for the healthcare of the elderly and the poor,
respectively, see 1 B. Furrow, T. Greaney, S. Johnson,
T. Jost, & R. Schwartz, Health Law 545–546 (2d ed. 2000); 2
id., at 2; the Pell Grant program and the G. I. Bill subsidize
higher education of low-income individuals and veterans, re-
spectively, see Mulleneaux, The Failure to Provide Adequate
Higher Education Tax Incentives for Lower-Income Individ-
uals, 14 Akron Tax J. 27, 31 (1999); and the CCDBG program
finances child care for low-income parents, see Pitegoff,
Child Care Policy and the Welfare Reform Act, 6 J. Afford-
able Housing & Community Dev. L. 113, 121–122 (1997).
These programs are well-established parts of our social wel-
fare system, see, e. g., Committee for Public Ed. & Religious
Liberty v. Nyquist, 413 U. S. 756, 782–783, n. 38 (1973), and
can be quite substantial, see Statistical Abstract 92 (Table
120) ($211.4 billion spent on Medicare and nearly $176.9 bil-
lion on Medicaid in 1998), id., at 135 (Table 208) ($9.1 billion
in financial aid provided by the Department of Education and
$280.5 million by the Department of Defense in 1999); Bush
On Welfare: Tougher Work Rules, More State Control, Con-
gress Daily, Feb. 26, 2002, p. 8 ($4.8 billion for the CCDBG
program in 2001).
A significant portion of the funds appropriated for these
programs reach religiously affiliated institutions, typically
without restrictions on its subsequent use. For example, it
has been reported that religious hospitals, which account
for 18 percent of all hospital beds nationwide, rely on
Medicare funds for 36 percent of their revenue. Merger-
Watch, New Study Details Public Funding of Religious Hos-
pitals (Jan. 2002), http://www.mergerwatch.org/inthenews/
publicfunding.html. Moreover, taking into account both
Medicare and Medicaid, religious hospitals received nearly
$45 billion from the federal fisc in 1998. Ibid. Federal aid

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668 ZELMAN v. SIMMONS-HARRIS
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to religious schools is also substantial. Although data for all
States are not available, data from Minnesota, for example,
suggest that a substantial share of Pell Grant and other
federal funds for college tuition reach religious schools.
Roughly one-third or $27.1 million of the federal tuition dol-
lars spent on students at schools in Minnesota were used at
private 4-year colleges. Minnesota Higher Education Serv-
ices Office, Financial Aid Awarded, Fiscal Year 1999: Grants,
Loans, and Student Earning from Institution Jobs (Jan. 24,
2001). The vast majority of these funds—$23.5 million—
flowed to religiously affiliated institutions. Ibid.
Against this background, the support that the Cleveland
voucher program provides religious institutions is neither
substantial nor atypical of existing government programs.
While this observation is not intended to justify the Cleve-
land voucher program under the Establishment Clause, see
post, at 709–710, n. 19 (Souter, J., dissenting), it places in
broader perspective alarmist claims about implications of
the Cleveland program and the Court’s decision in these
cases. See post, at 685–686 (Stevens, J., dissenting); post,
at 715–716 (Souter, J., dissenting); post, p. 717 (Breyer, J.,
dissenting).
II
Nor does today’s decision signal a major departure from
this Court’s prior Establishment Clause jurisprudence. A
central tool in our analysis of cases in this area has been the
Lemon test. As originally formulated, a statute passed this
test only if it had “a secular legislative purpose,” if its “prin-
cipal or primary effect” was one that “neither advance[d] nor
inhibit[ed] religion,” and if it did “not foster an excessive
government entanglement with religion.” Lemon v. Kurtz-
man, 403 U. S. 602, 612–613 (1971) (internal quotation marks
omitted). In Agostini v. Felton, 521 U. S. 203, 218, 232–233
(1997), we folded the entanglement inquiry into the primary
effect inquiry. This made sense because both inquiries rely
on the same evidence, see ibid., and the degree of entangle-

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O’Connor, J., concurring
ment has implications for whether a statute advances or
inhibits religion, see Lynch v. Donnelly, 465 U. S. 668, 688
(1984) (O’Connor, J., concurring). The test today is basi-
cally the same as that set forth in School Dist. of Abington
Township v. Schempp, 374 U. S. 203, 222 (1963) (citing Ever-
son v. Board of Ed. of Ewing, 330 U. S. 1 (1947); McGowan
v. Maryland, 366 U. S. 420, 442 (1961)), over 40 years ago.
The Court’s opinion in these cases focuses on a narrow
question related to the Lemon test: how to apply the primary
effects prong in indirect aid cases? Specifically, it clari-
fies the basic inquiry when trying to determine whether a
program that distributes aid to beneficiaries, rather than
directly to service providers, has the primary effect of ad-
vancing or inhibiting religion, Lemon v. Kurtzman, supra,
at 613–614, or, as I have put it, of “endors[ing] or disapprov-
[ing] . . . religion,” Lynch v. Donnelly, supra, at 691–692
(concurring opinion); see also Wallace v. Jaffree, 472 U. S. 38,
69–70 (1985) (O’Connor, J., concurring in judgment). See
also ante, at 652. Courts are instructed to consider two fac-
tors: first, whether the program administers aid in a neutral
fashion, without differentiation based on the religious status
of beneficiaries or providers of services; second, and more
importantly, whether beneficiaries of indirect aid have a gen-
uine choice among religious and nonreligious organizations
when determining the organization to which they will direct
that aid. If the answer to either query is “no,” the program
should be struck down under the Establishment Clause.
See ante, at 652–653.
Justice Souter portrays this inquiry as a departure from
Everson. See post, at 687–688 (dissenting opinion). A fair
reading of the holding in that case suggests quite the oppo-
site. Justice Black’s opinion for the Court held that the
“[First] Amendment requires the state to be a neutral in
its relations with groups of religious believers and non-
believers; it does not require the state to be their adversary.”
Everson, supra, at 18; see also Schempp, supra, at 218, 222.

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How else could the Court have upheld a state program to
provide students transportation to public and religious
schools alike? What the Court clarifies in these cases is that
the Establishment Clause also requires that state aid flowing
to religious organizations through the hands of beneficiaries
must do so only at the direction of those beneficiaries. Such
a refinement of the Lemon test surely does not betray
Everson.
III
There is little question in my mind that the Cleveland
voucher program is neutral as between religious schools and
nonreligious schools. See ante, at 653–654. Justice Sou-
ter rejects the Court’s notion of neutrality, proposing that
the neutrality of a program should be gauged not by the
opportunities it presents but rather by its effects. In partic-
ular, a “neutrality test . . . [should] focus on a category of aid
that may be directed to religious as well as secular schools,
and ask whether the scheme favors a religious direction.”
Post, at 697 (dissenting opinion). Justice Souter doubts
that the Cleveland program is neutral under this view. He
surmises that the cap on tuition that voucher schools may
charge low-income students encourages these students to
attend religious rather than nonreligious private voucher
schools. See post, at 704–705. But Justice Souter’s no-
tion of neutrality is inconsistent with that in our case law.
As we put it in Agostini, government aid must be “made
available to both religious and secular beneficiaries on a non-
discriminatory basis.” 521 U. S., at 231.
I do not agree that the nonreligious schools have failed to
provide Cleveland parents reasonable alternatives to reli-
gious schools in the voucher program. For nonreligious
schools to qualify as genuine options for parents, they need
not be superior to religious schools in every respect. They
need only be adequate substitutes for religious schools in the
eyes of parents. The District Court record demonstrates
that nonreligious schools were able to compete effectively

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with Catholic and other religious schools in the Cleveland
voucher program. See ante, at 656–657, n. 4. The best evi-
dence of this is that many parents with vouchers selected
nonreligious private schools over religious alternatives and
an even larger number of parents send their children to com-
munity and magnet schools rather than seeking vouchers at
all. Supra, at 663–664. Moreover, there is no record evi-
dence that any voucher-eligible student was turned away
from a nonreligious private school in the voucher program,
let alone a community or magnet school. See 234 F. 3d 945,
969 (CA6 2000) (Ryan, J., concurring in part and dissenting
in part); Affidavit of David L. Brennan ¶ 8, App. 147a.
To support his hunch about the effect of the cap on tuition
under the voucher program, Justice Souter cites national
data to suggest that, on average, Catholic schools have a cost
advantage over other types of schools. See post, at 705–706,
n. 15 (dissenting opinion). Even if national statistics were
relevant for evaluating the Cleveland program, Justice Sou-
ter ignores evidence which suggests that, at a national level,
nonreligious private schools may target a market for a differ-
ent, if not a higher, quality of education. For example, non-
religious private schools are smaller, see U. S. Dept. of Ed.,
National Center for Education Statistics, Private School Uni-
verse Survey, 1997–1998 (Oct. 1999) (Table 60) (87 and 269
students per private nonreligious and Catholic elementary
school, respectively); have smaller class sizes, see ibid. (9.4
and 18.8 students per teacher at private nonreligious and
Catholic elementary schools, respectively); have more highly
educated teachers, see U. S. Dept. of Ed., National Center for
Education Statistics, Private Schools in the United States: A
Statistical Profile, 1993–1994 (NCES 97–459, July 1997)
(Table 3.4) (37.9 percent of nonreligious private school teach-
ers but only 29.9 percent of Catholic school teachers have
Master’s degrees); and have principals with longer job ten-
ure than Catholic schools, see ibid. (Table 3.7) (average ten-

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672 ZELMAN v. SIMMONS-HARRIS
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ure of principals at private nonreligious and Catholic schools
is 8.2 and 4.7 years, respectively).
Additionally, Justice Souter’s theory that the Cleveland
voucher program’s cap on the tuition encourages low-income
students to attend religious schools ignores that these stu-
dents receive nearly double the amount of tuition assistance
under the community schools program than under the
voucher program and that none of the community schools is
religious. See ante, at 647.
In my view the more significant finding in these cases is
that Cleveland parents who use vouchers to send their chil-
dren to religious private schools do so as a result of true
private choice. The Court rejects, correctly, the notion that
the high percentage of voucher recipients who enroll in reli-
gious private schools necessarily demonstrates that parents
do not actually have the option to send their children to non-
religious schools. Ante, at 656–660. Likewise, the mere
fact that some parents enrolled their children in religious
schools associated with a different faith than their own, see
post, at 704 (Souter, J., dissenting), says little about
whether these parents had reasonable nonreligious options.
Indeed, no voucher student has been known to be turned
away from a nonreligious private school participating in the
voucher program. Supra this page. This is impressive
given evidence in the record that the present litigation has
discouraged the entry of some nonreligious private schools
into the voucher program. Declaration of David P. Zanotti
¶¶ 5, 10, App. 225a, 227a. Finally, as demonstrated above,
the Cleveland program does not establish financial incentives
to undertake a religious education.
I find the Court’s answer to the question whether parents
of students eligible for vouchers have a genuine choice be-
tween religious and nonreligious schools persuasive. In
looking at the voucher program, all the choices available to
potential beneficiaries of the government program should be
considered. In these cases, parents who were eligible to

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O’Connor, J., concurring
apply for a voucher also had the option, at a minimum, to
send their children to community schools. Yet the Court of
Appeals chose not to look at community schools, let alone
magnet schools, when evaluating the Cleveland voucher pro-
gram. See 234 F. 3d, at 958. That decision was incorrect.
Focusing in these cases only on the program challenged by
respondents ignores how the educational system in Cleve-
land actually functions. The record indicates that, in 1999,
two nonreligious private schools that had previously served
15 percent of the students in the voucher program were
prompted to convert to community schools because parents
were concerned about the litigation surrounding the pro-
gram, and because a new community schools program pro-
vided more per-pupil financial aid. Many of the students
that enrolled in the two schools under the voucher program
transferred to the community schools program and continued
to attend these schools. See Affidavit of David L. Brennan
¶¶ 3, 10, App. 145a, 147a; Declaration of David P. Zanotti
¶¶ 4–10, id., at 225a–227a. This incident provides strong
evidence that both parents and nonreligious schools view
the voucher program and the community schools program as
reasonable alternatives.
Considering all the educational options available to par-
ents whose children are eligible for vouchers, including com-
munity and magnet schools, the Court finds that parents in
the Cleveland schools have an array of nonreligious options.
Ante, at 655. Not surprisingly, respondents present no evi-
dence that any students who were candidates for a voucher
were denied slots in a community school or a magnet school.
Indeed, the record suggests the opposite with respect to
community schools. See Affidavit of David L. Brennan ¶ 8,
App. 147a.
Justice Souter nonetheless claims that, of the 10 commu-
nity schools operating in Cleveland during the 1999–2000
school year, 4 were unavailable to students with vouchers
and 4 others reported poor test scores. See post, at 702–

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703, n. 10 (dissenting opinion). But that analysis unrea-
sonably limits the choices available to Cleveland parents. It
is undisputed that Cleveland’s 24 magnet schools are rea-
sonable alternatives to voucher schools. See post, at 701–
702, n. 9 (Souter, J., dissenting); http://www.cmsdnet.net/
administration/EducationalServices/magnet.htm (June 20,
2002). And of the four community schools Justice Souter
claims are unavailable to voucher students, he is correct only
about one (Life Skills Center of Cleveland). Affidavit of
Steven M. Puckett ¶ 12, App. 162a. Justice Souter re-
jects the three other community schools (Horizon Science
Academy, Cleveland Alternative Learning, and International
Preparatory School) because they did not offer primary
school classes, were targeted toward poor students or stu-
dents with disciplinary or academic problems, or were not in
operation for a year. See post, at 702–703, n. 10. But a
community school need not offer primary school classes to be
an alternative to religious middle schools, and catering to
impoverished or otherwise challenged students may make a
school more attractive to certain inner-city parents. More-
over, the one community school that was closed in 1999–
2000 was merely looking for a new location and was opera-
tional in other years. See Affidavit of Steven M. Puckett
¶ 12, App. 162a; Ohio Dept. of Ed., Office of School Op-
tions, Community Schools, Ohio’s Community School Direc-
tory (June 22, 2002), http://www.ode.state.oh.us/community_
schools/community_school_directory/default.asp. Two more
community schools were scheduled to open after the 1999–
2000 school year. See Affidavit of Steven M. Puckett ¶ 13,
App. 163a.
Of the six community schools that Justice Souter admits
as alternatives to the voucher program in 1999–2000, he
notes that four (the Broadway, Cathedral, Chapelside, and
Lincoln Park campuses of the Hope Academy) reported
lower test scores than public schools during the school year
after the District Court’s grant of summary judgment to re-

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675 Cite as: 536 U. S. 639 (2002)
O’Connor, J., concurring
spondents, according to report cards prepared by the Ohio
Department of Education. See post, at 702–703, n. 10 (dis-
senting opinion). (One, Old Brooklyn Montessori School,
performed better than public schools. Ibid.; see also Ohio
Dept. of Ed., 2001 Community School Report Card, Old
Brooklyn Montessori School 5 (community school scored
higher than public schools in four of five subjects in 1999–
2000).) These report cards underestimate the value of the
four Hope Academy schools. Before they entered the com-
munity school program, two of them participated in the
voucher program. Although they received far less state
funding in that capacity, they had among the highest rates
of parental satisfaction of all voucher schools, religious or
nonreligious. See P. Peterson, W. Howell, & J. Greene, An
Evaluation of the Cleveland Voucher Program after Two
Years 6, Table 4 (June 1999) (hereinafter Peterson). This is
particularly impressive given that a Harvard University
study found that the Hope Academy schools attracted the
“poorest and most educationally disadvantaged students.”
J. Greene, W. Howell, P. Peterson, Lessons from the Cleve-
land Scholarship Program 22, 24 (Oct. 15, 1997). Moreover,
Justice Souter’s evaluation of the Hope Academy schools
assumes that the only relevant measure of school quality is
academic performance. It is reasonable to suppose, how-
ever, that parents in the inner city also choose schools that
provide discipline and a safe environment for their children.
On these dimensions some of the schools that Justice Sou-
ter derides have performed quite ably. See Peterson,
Table 7.
Ultimately, Justice Souter relies on very narrow data to
draw rather broad conclusions. One year of poor test scores
at four community schools targeted at the most challenged
students from the inner city says little about the value of
those schools, let alone the quality of the 6 other community
schools and 24 magnet schools in Cleveland. Justice Sou-
ter’s use of statistics confirms the Court’s wisdom in refus-

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676 ZELMAN v. SIMMONS-HARRIS
Thomas, J., concurring
ing to consider them when assessing the Cleveland program’s
constitutionality. See ante, at 658. What appears to moti-
vate Justice Souter’s analysis is a desire for a limiting
principle to rule out certain nonreligious schools as alterna-
tives to religious schools in the voucher program. See post,
at 700, 701–702, n. 9 (dissenting opinion). But the goal of the
Court’s Establishment Clause jurisprudence is to determine
whether, after the Cleveland voucher program was enacted,
parents were free to direct state educational aid in either
a nonreligious or religious direction. See ante, at 655–656.
That inquiry requires an evaluation of all reasonable educa-
tional options Ohio provides the Cleveland school system,
regardless of whether they are formally made available in
the same section of the Ohio Code as the voucher program.
Based on the reasoning in the Court’s opinion, which is
consistent with the realities of the Cleveland educational sys-
tem, I am persuaded that the Cleveland voucher program
affords parents of eligible children genuine nonreligious op-
tions and is consistent with the Establishment Clause.
Justice Thomas, concurring.
Frederick Douglass once said that “[e]ducation . . . means
emancipation. It means light and liberty. It means the up-
lifting of the soul of man into the glorious light of truth, the
light by which men can only be made free.” 1 Today many
of our inner-city public schools deny emancipation to urban
minority students. Despite this Court’s observation nearly
50 years ago in Brown v. Board of Education, 347 U. S. 483,
493 (1954), that “it is doubtful that any child may reasonably
be expected to succeed in life if he is denied the opportunity
of an education,” urban children have been forced into a sys-
tem that continually fails them. These cases present an
1 The Blessings of Liberty and Education: An Address Delivered in
Manassas, Virginia, on 3 September 1894, in 5 The Frederick Douglass
Papers 623 (J. Blassingame & J. McKivigan eds. 1992) (hereinafter Doug-
lass Papers).

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Thomas, J., concurring
example of such failures. Besieged by escalating financial
problems and declining academic achievement, the Cleveland
City School District was in the midst of an academic emer-
gency when Ohio enacted its scholarship program.
The dissents and respondents wish to invoke the Estab-
lishment Clause of the First Amendment, as incorporated
through the Fourteenth, to constrain a State’s neutral efforts
to provide greater educational opportunity for underprivi-
leged minority students. Today’s decision properly upholds
the program as constitutional, and I join it in full.
I
This Court has often considered whether efforts to pro-
vide children with the best educational resources conflict
with constitutional limitations. Attempts to provide aid to
religious schools or to allow some degree of religious in-
volvement in public schools have generated significant con-
troversy and litigation as States try to navigate the line
between the secular and the religious in education. See
generally Illinois ex rel. McCollum v. Board of Ed. of School
Dist. No. 71, Champaign Cty., 333 U. S. 203, 237–238 (1948)
(Jackson, J., concurring) (noting that the Constitution does
not tell judges “where the secular ends and the sectarian
begins in education”). We have recently decided several
cases challenging federal aid programs that include religious
schools. See, e. g., Mitchell v. Helms, 530 U. S. 793 (2000);
Agostini v. Felton, 521 U. S. 203 (1997). To determine
whether a federal program survives scrutiny under the Es-
tablishment Clause, we have considered whether it has a
secular purpose and whether it has the primary effect of
advancing or inhibiting religion. See Mitchell, supra, at
807–808. I agree with the Court that Ohio’s program easily
passes muster under our stringent test, but, as a matter of
first principles, I question whether this test should be ap-
plied to the States.

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678 ZELMAN v. SIMMONS-HARRIS
Thomas, J., concurring
The Establishment Clause of the First Amendment states
that “Congress shall make no law respecting an establish-
ment of religion.” On its face, this provision places no limit
on the States with regard to religion. The Establishment
Clause originally protected States, and by extension their
citizens, from the imposition of an established religion by the
Federal Government. 2 Whether and how this Clause should
constrain state action under the Fourteenth Amendment is
a more difficult question.
The Fourteenth Amendment fundamentally restructured
the relationship between individuals and the States and
ensured that States would not deprive citizens of liberty
without due process of law. It guarantees citizenship to all
individuals born or naturalized in the United States and
provides that “[n]o State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws.” As Justice Harlan noted, the Fourteenth Amend-
ment “added greatly to the dignity and glory of American
citizenship, and to the security of personal liberty.” Plessy
v. Ferguson, 163 U. S. 537, 555 (1896) (dissenting opinion).
When rights are incorporated against the States through the
Fourteenth Amendment they should advance, not constrain,
individual liberty.
Consequently, in the context of the Establishment Clause,
it may well be that state action should be evaluated on differ-
ent terms than similar action by the Federal Government.
“States, while bound to observe strict neutrality, should be
freer to experiment with involvement [in religion]—on a neu-
2 See, e. g., School Dist. of Abington Township v. Schempp, 374 U. S.
203, 309–310 (1963) (Stewart, J., dissenting) (“[T]he Establishment Clause
was primarily an attempt to insure that Congress not only would be pow-
erless to establish a national church, but would also be unable to interfere
with existing state establishments”); see also Wallace v. Jaffree, 472 U. S.
38, 113 (1985) (Rehnquist, J., dissenting).

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Thomas, J., concurring
tral basis—than the Federal Government.” Walz v. Tax
Comm’n of City of New York, 397 U. S. 664, 699 (1970) (Har-
lan, J., concurring). Thus, while the Federal Government
may “make no law respecting an establishment of religion,”
the States may pass laws that include or touch on religious
matters so long as these laws do not impede free exercise
rights or any other individual religious liberty interest. By
considering the particular religious liberty right alleged to
be invaded by a State, federal courts can strike a proper
balance between the demands of the Fourteenth Amendment
on the one hand and the federalism prerogatives of States on
the other.3
Whatever the textual and historical merits of incorporat-
ing the Establishment Clause, I can accept that the Four-
teenth Amendment protects religious liberty rights.4 But I
3 Several Justices have suggested that rights incorporated through the
Fourteenth Amendment apply in a different manner to the States than
they do to the Federal Government. For instance, Justice Jackson stated,
“[t]he inappropriateness of a single standard for restricting State and Na-
tion is indicated by the disparity between their functions and duties in
relation to those freedoms.” Beauharnais v. Illinois, 343 U. S. 250, 294
(1952) (dissenting opinion). Justice Harlan noted: “The Constitution
differentiates between those areas of human conduct subject to the reg-
ulation of the States and those subject to the powers of the Federal Gov-
ernment. The substantive powers of the two governments, in many
instances, are distinct. And in every case where we are called upon to
balance the interest in free expression against other interests, it seems to
me important that we should keep in the forefront the question of whether
those other interests are state or federal.” Roth v. United States, 354
U. S. 476, 503–504 (1957) (dissenting opinion). See also Gitlow v. New
York, 268 U. S. 652, 672 (1925) (Holmes, J., dissenting).
4 In particular, these rights inhere in the Free Exercise Clause, which
unlike the Establishment Clause protects individual liberties of religious
worship. “That the central value embodied in the First Amendment—
and, more particularly, in the guarantee of ‘liberty’ contained in the Four-
teenth—is the safeguarding of an individual’s right to free exercise of his
religion has been consistently recognized.” Schempp, supra, at 312
(Stewart, J., dissenting). See also Amar, The Bill of Rights as a Consti-
tution, 100 Yale L. J. 1131, 1159 (1991) (“[T]he free exercise clause was
paradigmatically about citizen rights, not state rights; it thus invites incor-

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680 ZELMAN v. SIMMONS-HARRIS
Thomas, J., concurring
cannot accept its use to oppose neutral programs of school
choice through the incorporation of the Establishment
Clause. There would be a tragic irony in converting the
Fourteenth Amendment’s guarantee of individual liberty
into a prohibition on the exercise of educational choice.
II
The wisdom of allowing States greater latitude in dealing
with matters of religion and education can be easily appreci-
ated in this context. Respondents advocate using the Four-
teenth Amendment to handcuff the State’s ability to experi-
ment with education. But without education one can hardly
exercise the civic, political, and personal freedoms conferred
by the Fourteenth Amendment. Faced with a severe educa-
tional crisis, the State of Ohio enacted wide-ranging educa-
tional reform that allows voluntary participation of private
and religious schools in educating poor urban children other-
wise condemned to failing public schools. The program does
not force any individual to submit to religious indoctrination
or education. It simply gives parents a greater choice as to
where and in what manner to educate their children.5 This
is a choice that those with greater means have routinely
exercised.
poration. Indeed, this clause was specially concerned with the plight of
minority religions, and thus meshes especially well with the minority-
rights thrust of the Fourteenth Amendment”); Lietzau, Rediscovering the
Establishment Clause: Federalism and the Rollback of Incorporation, 39
DePaul L. Rev. 1191, 1206–1207 (1990).
5 This Court has held that parents have the fundamental liberty to
choose how and in what manner to educate their children. “The funda-
mental theory of liberty upon which all governments in this Union repose
excludes any general power of the State to standardize its children by
forcing them to accept instruction from public teachers only. The child is
not the mere creature of the State; those who nurture him and direct his
destiny have the right, coupled with the high duty, to recognize and pre-
pare him for additional obligations.” Pierce v. Society of Sisters, 268
U. S. 510, 535 (1925). But see Troxel v. Granville, 530 U. S. 57, 80 (2000)
(Thomas, J., concurring in judgment).

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681 Cite as: 536 U. S. 639 (2002)
Thomas, J., concurring
Cleveland parents now have a variety of educational
choices. There are traditional public schools, magnet
schools, and privately run community schools, in addition to
the scholarship program. Currently, 46 of the 56 private
schools participating in the scholarship program are church
affiliated (35 are Catholic), and 96 percent of students in the
program attend religious schools. See App. 281a–286a; 234
F. 3d 945, 949 (CA6 2000). Thus, were the Court to disallow
the inclusion of religious schools, Cleveland children could
use their scholarships at only 10 private schools.
In addition to expanding the reach of the scholarship pro-
gram, the inclusion of religious schools makes sense given
Ohio’s purpose of increasing educational performance and
opportunities. Religious schools, like other private schools,
achieve far better educational results than their public coun-
terparts. For example, the students at Cleveland’s Catholic
schools score significantly higher on Ohio proficiency tests
than students at Cleveland public schools. Of Cleveland
eighth graders taking the 1999 Ohio proficiency test, 95 per-
cent in Catholic schools passed the reading test, whereas
only 57 percent in public schools passed. And 75 percent of
Catholic school students passed the math proficiency test,
compared to only 22 percent of public school students. See
Brief for Petitioners in No. 00–1777, p. 10. But the success
of religious and private schools is in the end beside the point,
because the State has a constitutional right to experiment
with a variety of different programs to promote educational
opportunity. That Ohio’s program includes successful
schools simply indicates that such reform can in fact provide
improved education to underprivileged urban children.
Although one of the purposes of public schools was to pro-
mote democracy and a more egalitarian culture,6 failing
urban public schools disproportionately affect minority chil-
dren most in need of educational opportunity. At the time
6 See, e. g., N. Edwards, School in the American Social Order: The
Dynamics of American Education 360–362 (1947).

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682 ZELMAN v. SIMMONS-HARRIS
Thomas, J., concurring
of Reconstruction, blacks considered public education “a
matter of personal liberation and a necessary function of a
free society.” J. Anderson, Education of Blacks in the South,
1860–1935, p. 18 (1988). Today, however, the promise of pub-
lic school education has failed poor inner-city blacks. While
in theory providing education to everyone, the quality of
public schools varies significantly across districts. Just as
blacks supported public education during Reconstruction,
many blacks and other minorities now support school choice
programs because they provide the greatest educational op-
portunities for their children in struggling communities.7
Opponents of the program raise formalistic concerns about
the Establishment Clause but ignore the core purposes of
the Fourteenth Amendment.
While the romanticized ideal of universal public education
resonates with the cognoscenti who oppose vouchers, poor
urban families just want the best education for their chil-
dren, who will certainly need it to function in our high-tech
and advanced society. As Thomas Sowell noted 30 years
ago: “Most black people have faced too many grim, concrete
problems to be romantics. They want and need certain tan-
gible results, which can be achieved only by developing cer-
tain specific abilities.” Black Education: Myths and Trage-
dies 228 (1972). The same is true today. An individual’s
life prospects increase dramatically with each successfully
completed phase of education. For instance, a black high
7 Minority and low-income parents express the greatest support for pa-
rental choice and are most interested in placing their children in private
schools. “[T]he appeal of private schools is especially strong among par-
ents who are low in income, minority, and live in low-performing districts:
precisely the parents who are the most disadvantaged under the current
system.” T. Moe, Schools, Vouchers, and the American Public 164 (2001).
Nearly three-fourths of all public school parents with an annual income
less than $20,000 support vouchers, compared to 57 percent of public school
parents with an annual income of over $60,000. See id., at 214 (Table 7–3).
In addition, 75 percent of black public school parents support vouchers, as
do 71 percent of Hispanic public school parents. Ibid.

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683 Cite as: 536 U. S. 639 (2002)
Thomas, J., concurring
school dropout earns just over $13,500, but with a high school
degree the average income is almost $21,000. Blacks with a
bachelor’s degree have an average annual income of about
$37,500, and $75,500 with a professional degree. See U. S.
Dept. of Commerce, Bureau of Census, Statistical Abstract
of the United States 140 (2001) (Table 218). Staying in
school and earning a degree generates real and tangible fi-
nancial benefits, whereas failure to obtain even a high school
degree essentially relegates students to a life of poverty and,
all too often, of crime.8 The failure to provide education to
poor urban children perpetuates a vicious cycle of poverty,
dependence, criminality, and alienation that continues for the
remainder of their lives. If society cannot end racial dis-
crimination, at least it can arm minorities with the education
to defend themselves from some of discrimination’s effects.
* * *
Ten States have enacted some form of publicly funded pri-
vate school choice as one means of raising the quality of edu-
cation provided to underprivileged urban children.9 These
programs address the root of the problem with failing urban
public schools that disproportionately affect minority stu-
dents. Society’s other solution to these educational failures
is often to provide racial preferences in higher education.
Such preferences, however, run afoul of the Fourteenth
Amendment’s prohibition against distinctions based on race.
See Plessy, 163 U. S., at 555 (Harlan, J., dissenting). By con-
trast, school choice programs that involve religious schools
8 In 1997, approximately 68 percent of prisoners in state correctional
institutions did not have a high school degree. See U. S. Dept. of Justice,
Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-
2000, p. 519 (Table 6.38).
9 These programs include tax credits for such schooling. In addition, 37
States have some type of charter school law. See School Choice 2001:
What’s Happening in the States xxv (R. Moffitt, J. Garrett, & J. Smith eds.
2001) (Table 1).

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684 ZELMAN v. SIMMONS-HARRIS
Stevens, J., dissenting
appear unconstitutional only to those who would twist the
Fourteenth Amendment against itself by expansively incor-
porating the Establishment Clause. Converting the Four-
teenth Amendment from a guarantee of opportunity to an
obstacle against education reform distorts our constitutional
values and disserves those in the greatest need.
As Frederick Douglass poignantly noted, “no greater ben-
efit can be bestowed upon a long benighted people, than giv-
ing to them, as we are here earnestly this day endeavoring
to do, the means of an education.” 10
Justice Stevens, dissenting.
Is a law that authorizes the use of public funds to pay for
the indoctrination of thousands of grammar school children
in particular religious faiths a “law respecting an establish-
ment of religion” within the meaning of the First Amend-
ment? In answering that question, I think we should ig-
nore three factual matters that are discussed at length by
my colleagues.
First, the severe educational crisis that confronted the
Cleveland City School District when Ohio enacted its
voucher program is not a matter that should affect our ap-
praisal of its constitutionality. In the 1999–2000 school year,
that program provided relief to less than five percent of the
students enrolled in the district’s schools. The solution to
the disastrous conditions that prevented over 90 percent of
the student body from meeting basic proficiency standards
obviously required massive improvements unrelated to the
voucher program.1 Of course, the emergency may have
10 Douglass Papers 623.
1 Ohio is currently undergoing a major overhaul of its public school fi-
nancing pursuant to an order of the Ohio Supreme Court in DeRolph v.
State, 93 Ohio St. 3d 309, 754 N. E. 2d 1184 (2001). The Court ought, at
least, to allow that reform effort and the district’s experimentation with
alternative public schools to take effect before relying on Cleveland’s edu-
cational crisis as a reason for state financed religious education.

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685 Cite as: 536 U. S. 639 (2002)
Stevens, J., dissenting
given some families a powerful motivation to leave the public
school system and accept religious indoctrination that they
would otherwise have avoided, but that is not a valid reason
for upholding the program.
Second, the wide range of choices that have been made
available to students within the public school system has no
bearing on the question whether the State may pay the tu-
ition for students who wish to reject public education en-
tirely and attend private schools that will provide them with
a sectarian education. The fact that the vast majority of
the voucher recipients who have entirely rejected public edu-
cation receive religious indoctrination at state expense does,
however, support the claim that the law is one “respecting
an establishment of religion.” The State may choose to di-
vide up its public schools into a dozen different options and
label them magnet schools, community schools, or whatever
else it decides to call them, but the State is still required to
provide a public education and it is the State’s decision to
fund private school education over and above its traditional
obligation that is at issue in these cases.2
Third, the voluntary character of the private choice to pre-
fer a parochial education over an education in the public
school system seems to me quite irrelevant to the question
whether the government’s choice to pay for religious indoc-
trination is constitutionally permissible. Today, however,
the Court seems to have decided that the mere fact that a
family that cannot afford a private education wants its chil-
dren educated in a parochial school is a sufficient justification
for this use of public funds.
For the reasons stated by Justice Souter and Justice
Breyer, I am convinced that the Court’s decision is pro-
foundly misguided. Admittedly, in reaching that conclusion
2 The Court suggests that an education at one of the district’s community
or magnet schools is provided “largely at state expense.” Ante, at 660,
n. 6. But a public education at either of these schools is provided entirely
at state expense—as the State is required to do.

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686 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
I have been influenced by my understanding of the impact of
religious strife on the decisions of our forbears to migrate to
this continent, and on the decisions of neighbors in the Bal-
kans, Northern Ireland, and the Middle East to mistrust one
another. Whenever we remove a brick from the wall that
was designed to separate religion and government, we in-
crease the risk of religious strife and weaken the foundation
of our democracy.
I respectfully dissent.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
The Court’s majority holds that the Establishment Clause
is no bar to Ohio’s payment of tuition at private religious
elementary and middle schools under a scheme that system-
atically provides tax money to support the schools’ religious
missions. The occasion for the legislation thus upheld is the
condition of public education in the city of Cleveland. The
record indicates that the schools are failing to serve their
objective, and the vouchers in issue here are said to be
needed to provide adequate alternatives to them. If there
were an excuse for giving short shrift to the Establishment
Clause, it would probably apply here. But there is no ex-
cuse. Constitutional limitations are placed on government
to preserve constitutional values in hard cases, like these.
“[C]onstitutional lines have to be drawn, and on one side of
every one of them is an otherwise sympathetic case that pro-
vokes impatience with the Constitution and with the line.
But constitutional lines are the price of constitutional gov-
ernment.” Agostini v. Felton, 521 U. S. 203, 254 (1997)
(Souter, J., dissenting). I therefore respectfully dissent.
The applicability of the Establishment Clause 1 to public
funding of benefits to religious schools was settled in Ever-
son v. Board of Ed. of Ewing, 330 U. S. 1 (1947), which inau-
1 “Congress shall make no law respecting an establishment of religion,”
U. S. Const., Amdt. 1.

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687 Cite as: 536 U. S. 639 (2002)
Souter, J., dissenting
gurated the modern era of establishment doctrine. The
Court stated the principle in words from which there was
no dissent:
“No tax in any amount, large or small, can be levied to
support any religious activities or institutions, whatever
they may be called, or whatever form they may adopt
to teach or practice religion.” Id., at 16.
The Court has never in so many words repudiated this state-
ment, let alone, in so many words, overruled Everson.
Today, however, the majority holds that the Establishment
Clause is not offended by Ohio’s Pilot Project Scholarship
Program, under which students may be eligible to receive as
much as $2,250 in the form of tuition vouchers transferable
to religious schools. In the city of Cleveland the over-
whelming 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. The money will thus pay for eligible students’
instruction not only in secular subjects but in religion as
well, in schools that can fairly be characterized as founded
to teach religious doctrine and to imbue teaching in all sub-
jects with a religious dimension.2 Public tax money will pay
at a systemic level for teaching the covenant with Israel and
Mosaic law in Jewish schools, the primacy of the Apostle
Peter and the Papacy in Catholic schools, the truth of re-
formed Christianity in Protestant schools, and the revelation
to the Prophet in Muslim schools, to speak only of major
religious groupings in the Republic.
2 See, e. g., App. 319a (Saint Jerome School Parent and Student Hand-
book 1999–2000, p. 1) (“FAITH must dominate the entire educational proc-
ess so that the child can make decisions according to Catholic values and
choose to lead a Christian life”); id., at 347a (Westside Baptist Christian
School Parent-Student Handbook, p. 7) (“Christ is the basis of all learning.
All subjects will be taught from the Biblical perspective that all truth is
God’s truth”).

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688 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
How can a Court consistently leave Everson on the books
and approve the Ohio vouchers? The answer is that it can-
not. It is only by ignoring Everson that the majority can
claim to rest on traditional law in its invocation of neutral
aid provisions and private choice to sanction the Ohio law.
It is, moreover, only by ignoring the meaning of neutrality
and private choice themselves that the majority can even
pretend to rest today’s decision on those criteria.
I
The majority’s statements of Establishment Clause doc-
trine cannot be appreciated without some historical perspec-
tive on the Court’s announced limitations on government aid
to religious education, and its repeated repudiation of limits
previously set. My object here is not to give any nuanced
exposition of the cases, which I tried to classify in some de-
tail in an earlier opinion, see Mitchell v. Helms, 530 U. S.
793, 873–899 (2000) (dissenting opinion), but to set out the
broad doctrinal stages covered in the modern era, and to
show that doctrinal bankruptcy has been reached today.
Viewed with the necessary generality, the cases can be
categorized in three groups. In the period from 1947 to
1968, the basic principle of no aid to religion through school
benefits was unquestioned. Thereafter for some 15 years,
the Court termed its efforts as attempts to draw a line
against aid that would be divertible to support the religious,
as distinct from the secular, activity of an institutional bene-
ficiary. Then, starting in 1983, concern with divertibility
was gradually lost in favor of approving aid in amounts un-
likely to afford substantial benefits to religious schools, when
offered evenhandedly without regard to a recipient’s reli-
gious character, and when channeled to a religious institu-
tion only by the genuinely free choice of some private indi-
vidual. Now, the three stages are succeeded by a fourth, in
which the substantial character of government aid is held to
have no constitutional significance, and the espoused criteria

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of neutrality in offering aid, and private choice in directing
it, are shown to be nothing but examples of verbal formalism.
A
Everson v. Board of Ed. of Ewing inaugurated the modern
development of Establishment Clause doctrine at the behest
of a taxpayer challenging state provision of “tax-raised funds
to pay the bus fares of parochial school pupils” on regular
city buses as part of a general scheme to reimburse the
public-transportation costs of children attending both public
and private nonprofit schools. 330 U. S., at 17. Although
the Court split, no Justice disagreed with the basic doctrinal
principle already quoted, that “[n]o tax in any amount . . .
can be levied to support any religious activities or in-
stitutions, . . . whatever form they may adopt to teach . . .
religion.” Id., at 16. Nor did any Member of the Court
deny the tension between the New Jersey program and the
aims of the Establishment Clause. The majority upheld the
state law on the strength of rights of religious-school stu-
dents under the Free Exercise Clause, id., at 17–18, which
was thought to entitle them to free public transportation
when offered as a “general government servic[e]” to all
schoolchildren, id., at 17. Despite the indirect benefit to re-
ligious education, the transportation was simply treated like
“ordinary police and fire protection, connections for sewage
disposal, public highways and sidewalks,” id., at 17–18, and,
most significantly, “state-paid policemen, detailed to protect
children going to and from church schools from the very real
hazards of traffic,” id., at 17. The dissenters, however,
found the benefit to religion too pronounced to survive the
general principle of no establishment, no aid, and they de-
scribed it as running counter to every objective served by
the establishment ban: New Jersey’s use of tax-raised funds
forced a taxpayer to “contribut[e] to the propagation of opin-
ions which he disbelieves in so far as . . . religions differ,” id.,
at 45 (internal quotation marks omitted); it exposed religious

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liberty to the threat of dependence on state money, id., at
53; and it had already sparked political conflicts with oppo-
nents of public funding, id., at 54.3
The difficulty of drawing a line that preserved the basic
principle of no aid was no less obvious some 20 years later
in Board of Ed. of Central School Dist. No. 1 v. Allen, 392
U. S. 236 (1968), which upheld a New York law authorizing
local school boards to lend textbooks in secular subjects to
children attending religious schools, a result not self-evident
from Everson’s “general government services” rationale.
The Court relied instead on the theory that the in-kind aid
could only be used for secular educational purposes, 392
U. S., at 243, and found it relevant that “no funds or books
are furnished [directly] to parochial schools, and the financial
benefit is to parents and children, not to schools,” id., at 243–
244.4 Justice Black, who wrote Everson, led the dissenters.
Textbooks, even when “ ‘secular,’ realistically will in some
way inevitably tend to propagate the religious views of the
favored sect,” 392 U. S., at 252, he wrote, and Justice Douglas
raised other objections underlying the establishment ban,
id., at 254–266. Religious schools would request those
books most in keeping with their faiths, and public boards
would have final approval power: “If the board of education
supinely submits by approving and supplying the sectarian
or sectarian-oriented textbooks, the struggle to keep church
3 See Everson, 330 U. S., at 54, n. 47 (noting that similar programs had
been struck down in six States, upheld in eight, and amicus curiae briefs
filed by “three religious sects, one labor union, the American Civil Liber-
ties Union, and the states of Illinois, Indiana, Louisiana, Massachusetts,
Michigan and New York”).
4 The Court noted that “the record contains no evidence that any of the
private schools . . . previously provided textbooks for their students,” and
“[t]here is some evidence that at least some of the schools did not.” Allen,
392 U. S., at 244, n. 6. This was a significant distinction: if the parochial
schools provided secular textbooks to their students, then the State’s pro-
vision of the same in their stead might have freed up church resources for
allocation to other uses, including, potentially, religious indoctrination.

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and state separate has been lost. If the board resists, then
the battle line between church and state will have been
drawn . . . .” Id., at 256 (Douglas, J., dissenting). The
scheme was sure to fuel strife among religions as well: “we
can rest assured that a contest will be on to provide those
books for religious schools which the dominant religious
group concludes best reflect the theocentric or other philoso-
phy of the particular church.” Id., at 265.
Transcending even the sharp disagreement, however, was
“the consistency in the way the Justices went about de-
ciding the case . . . . Neither side rested on any facile
application of the ‘test’ or any simplistic reliance on the
generality or evenhandedness of the state law. Dis-
agreement concentrated on the true intent inferrable be-
hind the law, the feasibility of distinguishing in fact be-
tween religious and secular teaching in church schools,
and the reality or sham of lending books to pupils in-
stead of supplying books to schools. . . . [T]he stress was
on the practical significance of the actual benefits re-
ceived by the schools.” Mitchell, 530 U. S., at 876 (Sou-
ter, J., dissenting).
B
Allen recognized the reality that “religious schools pursue
two goals, religious instruction and secular education,” 392
U. S., at 245; if state aid could be restricted to serve the
second, it might be permissible under the Establishment
Clause. But in the retrenchment that followed, the Court
saw that the two educational functions were so intertwined
in religious primary and secondary schools that aid to secular
education could not readily be segregated, and the intrusive
monitoring required to enforce the line itself raised Estab-
lishment Clause concerns about the entanglement of church
and state. See Lemon v. Kurtzman, 403 U. S. 602, 620
(1971) (striking down program supplementing salaries for
teachers of secular subjects in private schools). To avoid

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the entanglement, the Court’s focus in the post-Allen cases
was on the principle of divertibility, on discerning when os-
tensibly secular government aid to religious schools was sus-
ceptible to religious uses. The greater the risk of diversion
to religion (and the monitoring necessary to avoid it), the
less legitimate the aid scheme was under the no-aid principle.
On the one hand, the Court tried to be practical, and when
the aid recipients were not so “pervasively sectarian” that
their secular and religious functions were inextricably inter-
twined, the Court generally upheld aid earmarked for secu-
lar use. See, e. g., Roemer v. Board of Public Works of Md.,
426 U. S. 736 (1976); Hunt v. McNair, 413 U. S. 734 (1973);
Tilton v. Richardson, 403 U. S. 672 (1971). But otherwise
the principle of nondivertibility was enforced strictly, with
its violation being presumed in most cases, even when state
aid seemed secular on its face. Compare, e. g., Levitt v.
Committee for Public Ed. & Religious Liberty, 413 U. S. 472,
480 (1973) (striking down state program reimbursing private
schools’ administrative costs for teacher-prepared tests in
compulsory secular subjects), with Wolman v. Walter, 433
U. S. 229, 255 (1977) (upholding similar program using stand-
ardized tests); and Meek v. Pittenger, 421 U. S. 349, 369–372
(1975) (no public funding for staff and materials for “auxiliary
services” like guidance counseling and speech and hearing
services), with Wolman, supra, at 244 (permitting state aid
for diagnostic speech, hearing, and psychological testing).
The fact that the Court’s suspicion of divertibility reflected
a concern with the substance of the no-aid principle is appar-
ent in its rejection of stratagems invented to dodge it. In
Committee for Public Ed. & Religious Liberty v. Nyquist,
413 U. S. 756 (1973), for example, the Court struck down a
New York program of tuition grants for poor parents and tax
deductions for more affluent ones who sent their children to
private schools. The Nyquist Court dismissed warranties of
a “statistical guarantee,” that the scheme provided at most
15% of the total cost of an education at a religious school,

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id., at 787–788, which could presumably be matched to a secu-
lar 15% of a child’s education at the school. And it rejected
the idea that the path of state aid to religious schools might
be dispositive: “far from providing a per se immunity from
examination of the substance of the State’s program, the fact
that aid is disbursed to parents rather than to the schools is
only one among many factors to be considered.” Id., at 781.
The point was that “the effect of the aid is unmistakably
to provide desired financial support for nonpublic, sectarian
institutions.” Id., at 783.5 Nyquist thus held that aid to
parents through tax deductions was no different from forbid-
den direct aid to religious schools for religious uses. The
focus remained on what the public money bought when it
reached the end point of its disbursement.
C
Like all criteria requiring judicial assessment of risk, di-
vertibility is an invitation to argument, but the object of the
arguments provoked has always been a realistic assessment
of facts aimed at respecting the principle of no aid. In
Mueller v. Allen, 463 U. S. 388 (1983), however, that object
began to fade, for Mueller started down the road from real-
ism to formalism.
5 The Court similarly rejected a path argument in Wolman v. Walter,
433 U. S. 229 (1977), overruled by Mitchell v. Helms, 530 U. S. 793 (2000),
where the State sought to distinguish Meek v. Pittenger, 421 U. S. 349
(1975), overruled by Mitchell, supra, based on the fact that, in Meek, the
State had lent educational materials to individuals rather than to schools.
“Despite the technical change in legal bailee,” the Court explained, “the
program in substance is the same as before,” and “it would exalt form
over substance if this distinction were found to justify a result different
from that in Meek.” Wolman, supra, at 250. Conversely, the Court up-
held a law reimbursing private schools for state-mandated testing, dis-
missing a proffered distinction based on the indirect path of aid in an
earlier case as “a formalistic dichotomy that bears . . . little relationship
either to common sense or to the realities of school finance.” Committee
for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 658 (1980).

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The aid in Mueller was in substance indistinguishable from
that in Nyquist, see 463 U. S., at 396–397, n. 6, and both were
substantively difficult to distinguish from aid directly to reli-
gious schools, id., at 399. But the Court upheld the Minne-
sota tax deductions in Mueller, emphasizing their neutral
availability for religious and secular educational expenses
and the role of private choice in taking them. Id., at 397–
398. The Court relied on the same two principles in Witters
v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986),
approving one student’s use of a vocational training subsidy
for the blind at a religious college, characterizing it as aid to
individuals from which religious schools could derive no
“large” benefit: “the full benefits of the program [are not]
limited, in large part or in whole, to students at sectarian
institutions.” Id., at 488.
School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 395–
396, and n. 13 (1985), overruled in part by Agostini v. Felton,
521 U. S. 203 (1997), clarified that the notions of evenhanded-
ness neutrality and private choice in Mueller did not apply
to cases involving direct aid to religious schools, which were
still subject to the divertibility test. But in Agostini, where
the substance of the aid was identical to that in Ball, public
employees teaching remedial secular classes in private
schools, the Court rejected the 30-year-old presumption of
divertibility, and instead found it sufficient that the aid “sup-
plement[ed]” but did not “supplant” existing educational
services, 521 U. S., at 210, 230. The Court, contrary to Ball,
viewed the aid as aid “directly to the eligible students . . .
no matter where they choose to attend school.” 521 U. S.,
at 229.
In the 12 years between Ball and Agostini, the Court de-
cided not only Witters, but two other cases emphasizing the
form of neutrality and private choice over the substance of
aid to religious uses, but always in circumstances where any
aid to religion was isolated and insubstantial. Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1 (1993), like Wit-

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ters, involved one student’s choice to spend funds from a gen-
eral public program at a religious school (to pay for a sign-
language interpreter). As in Witters, the Court reasoned
that “[d]isabled children, not sectarian schools, [were] the
primary beneficiaries . . . ; to the extent sectarian schools
benefit at all . . . , they are only incidental beneficiaries.”
509 U. S., at 12. Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819 (1995), like Zobrest and Witters,
involved an individual and insubstantial use of neutrally
available public funds for a religious purpose (to print an
evangelical magazine).
To be sure, the aid in Agostini was systemic and arguably
substantial, but, as I have said, the majority there chose to
view it as a bare “supplement.” 521 U. S., at 229. And this
was how the controlling opinion described the systemic aid
in our most recent case, Mitchell v. Helms, 530 U. S. 793
(2000), as aid going merely to a “portion” of the religious
schools’ budgets, id., at 860 (O’Connor, J., concurring in
judgment). The plurality in that case did not feel so uncom-
fortable about jettisoning substance entirely in favor of form,
finding it sufficient that the aid was neutral and that there
was virtual private choice, since any aid “first passes through
the hands (literally or figuratively) of numerous private citi-
zens who are free to direct the aid elsewhere.” Id., at 816.
But that was only the plurality view.
Hence it seems fair to say that it was not until today that
substantiality of aid has clearly been rejected as irrelevant
by a majority of this Court, just as it has not been until
today that a majority, not a plurality, has held purely formal
criteria to suffice for scrutinizing aid that ends up in the
coffers of religious schools. Today’s cases are notable for
their stark illustration of the inadequacy of the majority’s
chosen formal analysis.
II
Although it has taken half a century since Everson
to reach the majority’s twin standards of neutrality and

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free choice, the facts show that, in the majority’s hands,
even these criteria cannot convincingly legitimize the Ohio
scheme.
A
Consider first the criterion of neutrality. As recently as
two Terms ago, a majority of the Court recognized that neu-
trality conceived of as evenhandedness toward aid recipients
had never been treated as alone sufficient to satisfy the Es-
tablishment Clause, Mitchell, 530 U. S., at 838–839 (O’Con-
nor, J., concurring in judgment); id., at 884 (Souter, J.,
dissenting). But at least in its limited significance, formal
neutrality seemed to serve some purpose. Today, however,
the majority employs the neutrality criterion in a way that
renders it impossible to understand.
Neutrality in this sense refers, of course, to evenhanded-
ness in setting eligibility as between potential religious and
secular recipients of public money. Id., at 809–810 (plural-
ity opinion); id., at 878–884 (Souter, J., dissenting) (three
senses of “neutrality”).6 Thus, for example, the aid scheme
in Witters provided an eligible recipient with a scholarship
to be used at any institution within a practically unlimited
universe of schools, 474 U. S., at 488; it did not tend to pro-
vide more or less aid depending on which one the scholarship
recipient chose, and there was no indication that the maxi-
mum scholarship amount would be insufficient at secular
6 Justice O’Connor apparently no longer distinguishes between this
notion of evenhandedness neutrality and the free-exercise neutrality in
Everson. Compare ante, at 669 (concurring opinion), with Mitchell, 530
U. S., at 839 (opinion concurring in judgment) (“Even if we at one time
used the term ‘neutrality’ in a descriptive sense to refer to those aid pro-
grams characterized by the requisite equipoise between support of reli-
gion and antagonism to religion, Justice Souter’s discussion convinc-
ingly demonstrates that the evolution in the meaning of the term in our
jurisprudence is cause to hesitate before equating the neutrality of recent
decisions with the neutrality of old”).

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schools. Neither did any condition of Zobrest’s interpreter’s
subsidy favor religious education. See 509 U. S., at 10.
In order to apply the neutrality test, then, it makes sense
to focus on a category of aid that may be directed to religious
as well as secular schools, and ask whether the scheme favors
a religious direction. Here, one would ask whether the
voucher provisions, allowing for as much as $2,250 toward
private school tuition (or a grant to a public school in an
adjacent district), were written in a way that skewed the
scheme toward benefiting religious schools.
This, however, is not what the majority asks. The major-
ity looks not to the provisions for tuition vouchers, Ohio Rev.
Code Ann. § 3313.976 (West Supp. 2002), but to every provi-
sion for educational opportunity: “The program permits the
participation of all schools within the district, [as well as
public schools in adjacent districts], religious or nonreli-
gious.” Ante, at 653 (emphasis in original). The majority
then finds confirmation that “participation of all schools” sat-
isfies neutrality by noting that the better part of total state
educational expenditure goes to public schools, ante, at 654,
thus showing there is no favor of religion.
The illogic is patent. If regular, public schools (which can
get no voucher payments) “participate” in a voucher scheme
with schools that can, and public expenditure is still predomi-
nantly on public schools, then the majority’s reasoning would
find neutrality in a scheme of vouchers available for private
tuition in districts with no secular private schools at all.
“Neutrality” as the majority employs the term is, literally,
verbal and nothing more. This, indeed, is the only way the
majority can gloss over the very nonneutral feature of the
total scheme covering “all schools”: public tutors may re-
ceive from the State no more than $324 per child to support
extra tutoring (that is, the State’s 90% of a total amount of
$360), App. 166a, whereas the tuition voucher schools (which

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turn out to be mostly religious) can receive up to $2,250, id.,
at 56a.7
Why the majority does not simply accept the fact that the
challenge here is to the more generous voucher scheme and
judge its neutrality in relation to religious use of voucher
money seems very odd. It seems odd, that is, until one rec-
ognizes that comparable schools for applying the criterion of
neutrality are also the comparable schools for applying the
other majority criterion, whether the immediate recipients
of voucher aid have a genuinely free choice of religious and
secular schools to receive the voucher money. And in apply-
ing this second criterion, the consideration of “all schools” is
ostensibly helpful to the majority position.
B
The majority addresses the issue of choice the same way
it addresses neutrality, by asking whether recipients or
potential recipients of voucher aid have a choice of public
schools among secular alternatives to religious schools.
Again, however, the majority asks the wrong question and
misapplies the criterion. The majority has confused choice
in spending scholarships with choice from the entire menu of
7 The majority’s argument that public school students within the pro-
gram “direct almost twice as much state funding to their chosen school as
do program students who receive a scholarship and attend a private
school,” ante, at 654, n. 3, was decisively rejected in Committee for Public
Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 782–783, n. 38 (1973):
“We do not agree with the suggestion . . . that tuition grants are an analo-
gous endeavor to provide comparable benefits to all parents of schoolchil-
dren whether enrolled in public or nonpublic schools. . . . The grants to
parents of private school children are given in addition to the right that
they have to send their children to public schools ‘totally at state expense.’
And in any event, the argument proves too much, for it would also provide
a basis for approving through tuition grants the complete subsidization
of all religious schools on the ground that such action is necessary if the
State is fully to equalize the position of parents who elect such schools—
a result wholly at variance with the Establishment Clause.”

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possible educational placements, most of them open to any-
one willing to attend a public school. I say “confused” be-
cause the majority’s new use of the choice criterion, which it
frames negatively as “whether Ohio is coercing parents into
sending their children to religious schools,” ante, at 655–656,
ignores the reason for having a private choice enquiry in the
first place. Cases since Mueller have found private choice
relevant under a rule that aid to religious schools can be
permissible so long as it first passes through the hands of
students or parents.8 The majority’s view that all educa-
tional choices are comparable for purposes of choice thus ig-
nores the whole point of the choice test: it is a criterion for
deciding whether indirect aid to a religious school is legiti-
mate because it passes through private hands that can spend
or use the aid in a secular school. The question is whether
the private hand is genuinely free to send the money in
either a secular direction or a religious one. The majority
now has transformed this question about private choice in
channeling aid into a question about selecting from examples
of state spending (on education) including direct spending on
magnet and community public schools that goes through no
private hands and could never reach a religious school under
any circumstance. When the choice test is transformed
from where to spend the money to where to go to school, it
is cut loose from its very purpose.
8 In some earlier cases, “private choice” was sensibly understood to go
beyond the mere formalism of path, to ensure that aid was neither sys-
temic nor predestined to go to religious uses. Witters, for example, had
a virtually unlimited choice among professional training schools, only a
few of which were religious; and Zobrest was simply one recipient who
chose to use a government-funded interpreter at a religious school over a
secular school, either of which was open to him. But recent decisions
seem to have stripped away any substantive bite, as “private choice” ap-
parently means only that government aid follows individuals to religious
schools. See, e. g., Agostini v. Felton, 521 U. S. 203, 229 (1997) (state aid
for remedial instruction at a religious school goes “directly to the eligible
students . . . no matter where they choose to attend school”).

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Defining choice as choice in spending the money or chan-
neling the aid is, moreover, necessary if the choice criterion
is to function as a limiting principle at all. 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. See supra, at 697 (noting the same result under the
majority’s formulation of the neutrality criterion). And be-
cause it is unlikely that any participating private religious
school will enroll more pupils than the generally available
public system, it will be easy to generate numbers suggest-
ing that aid to religion is not the significant intent or effect
of the voucher scheme.
That is, in fact, just the kind of rhetorical argument that
the majority accepts in these cases. In addition to secular
private schools (129 students), the majority considers public
schools with tuition assistance (roughly 1,400 students), mag-
net schools (13,000 students), and community schools (1,900
students), and concludes that fewer than 20% of pupils re-
ceive state vouchers to attend religious schools. Ante, at
659. (In fact, the numbers would seem even more favor-
able to the majority’s argument if enrollment in traditional
public schools without tutoring were considered, an alterna-
tive the majority thinks relevant to the private choice en-
quiry, ante, at 655.) Justice O’Connor focuses on how
much money is spent on each educational option and notes
that at most $8.2 million is spent on vouchers for students
attending religious schools, ante, at 664 (concurring opinion),
which is only 6% of the State’s expenditure if one includes
separate funding for Cleveland’s community ($9.4 million)
and magnet ($114.8 million) public schools. The variations
show how results may shift when a judge can pick and choose
the alternatives to use in the comparisons, and they also
show what dependably comfortable results the choice crite-

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rion will yield if the identification of relevant choices is wide
open. If the choice of relevant alternatives is an open one,
proponents of voucher aid will always win, because they will
always be able to find a “choice” somewhere that will show
the bulk of public spending to be secular. The choice en-
quiry will be diluted to the point that it can screen out noth-
ing, and the result will always be determined by selecting
the alternatives to be treated as choices.
Confining the relevant choices to spending choices, on the
other hand, is not vulnerable to comparable criticism. Al-
though leaving the selection of alternatives for choice wide
open, as the majority would, virtually guarantees the avail-
ability of a “choice” that will satisfy the criterion, limiting
the choices to spending choices will not guarantee a negative
result in every case. There may, after all, be cases in which
a voucher recipient will have a real choice, with enough secu-
lar private school desks in relation to the number of religious
ones, and a voucher amount high enough to meet secular pri-
vate school tuition levels. See infra, at 704–707. But, even
to the extent that choice-to-spend does tend to limit the num-
ber of religious funding options that pass muster, the choice
criterion has to be understood this way in order, as I have
said, for it to function as a limiting principle.9 Otherwise
9 The need for a limit is one answer to Justice O’Connor, who argues
at length that community schools should factor in the “private choice”
calculus. Ante, at 672–673 (concurring opinion). To be fair, community
schools do exhibit some features of private schools: they are autonomously
managed without any interference from the school district or State and
two have prior histories as private schools. It may be, then, that commu-
nity schools might arguably count as choices because they are not like
other public schools run by the State or municipality, but in substance
merely private schools with state funding outside the voucher program.
But once any public school is deemed a relevant object of choice, there
is no stopping this progression. For example, both the majority and
Justice O’Connor characterize public magnet schools as an independent
category of genuine educational options, simply because they are “nontra-
ditional” public schools. But they do not share the “private school” fea-
tures of community schools, and the only thing that distinguishes them

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there is surely no point in requiring the choice to be a true
or real or genuine one.10
from “traditional” public schools is their thematic focus, which in some
cases appears to be nothing more than creative marketing. See, e. g.,
Cleveland Municipal School District, Magnet and Thematic Programs/
Schools (including, as magnet schools, “[f]undamental [e]ducation [c]en-
ters,” which employ “[t]raditional classrooms and teaching methods with
an emphasis on basic skills”; and “[a]ccelerated [l]earning” schools, which
rely on “[i]nstructional strategies [that] provide opportunities for students
to build on individual strengths, interests and talents”).
10 And how should we decide which “choices” are “genuine” if the range
of relevant choices is theoretically wide open? The showcase educational
options that the majority and Justice O’Connor trumpet are Cleveland’s
10 community schools, but they are hardly genuine choices. Two do not
even enroll students in kindergarten through third grade, App. 162a, and
thus parents contemplating participation in the voucher program cannot
select those schools. See Ohio Rev. Code Ann. § 3313.975(C)(1) (West
Supp. 2002) (“[N]o new students may receive scholarships unless they are
enrolled in grade kindergarten, one, two, or three”). One school was not
“in operation” as of 1999, and in any event targeted students below the
federal poverty line, App. 162a, not all voucher-eligible students, see n. 21,
infra. Another school was a special population school for students with
“numerous suspensions, behavioral problems and who are a grade level
below their peers,” App. 162a, which, as Justice O’Connor points out,
may be “more attractive to certain inner-city parents,” ante, at 674, but
is probably not an attractive “choice” for most parents.
Of the six remaining schools, the most recent statistics on fourth-grade
student performance (unavailable for one school) indicate: three scored
well below the Cleveland average in each of five tested subjects on state
proficiency examinations, one scored above in one subject, and only one
community school, Old Brooklyn Montessori School, was even an arguable
competitor, scoring slightly better than traditional public schools in three
subjects, and somewhat below in two. See Ohio Dept. of Ed., 2002 Com-
munity School Report Card, Hope Academy, Lincoln Park, p. 5; id., Hope
Academy, Cathedral Campus, at 5; id., Hope Academy, Chapelside Campus,
at 5; id., Hope Academy, Broadway Campus, at 5; id., Old Brooklyn Mon-
tessori School, at 5; 2002 District Report Card, Cleveland Municipal School
District, p. 1. These statistics are consistent with 1999 test results, which
were only available for three of the schools. Brief for Ohio School Boards
Association et al. as Amici Curiae 26–28 (for example, 34.3% of students

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703 Cite as: 536 U. S. 639 (2002)
Souter, J., dissenting
It is not, of course, that I think even a genuine choice crite-
rion is up to the task of the Establishment Clause when sub-
stantial state funds go to religious teaching; the discussion
in Part III, infra, shows that it is not. The point is simply
that if the majority wishes to claim that choice is a criterion,
it must define choice in a way that can function as a criterion
with a practical capacity to screen something out.
If, contrary to the majority, we ask the right question
about genuine choice to use the vouchers, the answer shows
that something is influencing choices in a way that aims the
money in a religious direction: of 56 private schools in the
district participating in the voucher program (only 53 of
which accepted voucher students in 1999–2000), 46 of them
are religious; 96.6% of all voucher recipients go to religious
schools, only 3.4% to nonreligious ones. See App. 281a–
286a. Unfortunately for the majority position, there is no
explanation for this that suggests the religious direction re-
sults simply from free choices by parents. One answer to
these statistics, for example, which would be consistent with
the genuine choice claimed to be operating, might be that
96.6% of families choosing to avail themselves of vouchers
choose to educate their children in schools of their own reli-
gion. This would not, in my view, render the scheme consti-
tutional, but it would speak to the majority’s choice criterion.
in the Cleveland City School District were proficient in math, as compared
with 3.3% in Hope Chapelside and 0% in Hope Cathedral).
I think that objective academic excellence should be the benchmark in
comparing schools under the majority’s test; Justice O’Connor prefers
comparing educational options on the basis of subjective “parental satis-
faction,” ante, at 675, and I am sure there are other plausible ways to
evaluate “genuine choices.” Until now, our cases have never talked about
the quality of educational options by whatever standard, but now that
every educational option is a relevant “choice,” this is what the “genuine
and independent private choice” enquiry, ante, at 652 (opinion of the
Court), would seem to require if it is to have any meaning at all. But if
that is what genuine choice means, what does this enquiry have to do with
the Establishment Clause?

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704 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
Evidence shows, however, that almost two out of three fami-
lies using vouchers to send their children to religious schools
did not embrace the religion of those schools. App. to Pet.
for Cert. in No. 00–1777, p. 147a.11 The families made it
clear they had not chosen the schools because they wished
their children to be proselytized in a religion not their own,
or in any religion, but because of educational opportunity.12
Even so, the fact that some 2,270 students chose to apply
their vouchers to schools of other religions, App. 281a–286a,
might be consistent with true choice if the students “chose”
their religious schools over a wide array of private nonreli-
gious options, or if it could be shown generally that Ohio’s
program had no effect on educational choices and thus no
impermissible effect of advancing religious education. But
both possibilities are contrary to fact. First, even if all ex-
isting nonreligious private schools in Cleveland were willing
to accept large numbers of voucher students, only a few more
than the 129 currently enrolled in such schools would be able
to attend, as the total enrollment at all nonreligious private
schools in Cleveland for kindergarten through eighth grade
is only 510 children, see Brief for California Alliance for Pub-
lic Schools as Amicus Curiae 15, and there is no indication
that these schools have many open seats.13 Second, the
11 For example, 40% of families who sent their children to private schools
for the first time under the voucher program were Baptist, App. 118a, but
only one school, enrolling 44 voucher students, is Baptist, id., at 284a.
12 When parents were surveyed as to their motives for enrolling their
children in the voucher program, 96.4% cited a better education than avail-
able in the public schools, and 95% said their children’s safety. Id., at
69a–70a. When asked specifically in one study to identify the most impor-
tant factor in selecting among participating private schools, 60% of parents
mentioned academic quality, teacher quality, or the substance of what is
taught (presumably secular); only 15% mentioned the religious affiliation
of the school as even a consideration. Id., at 119a.
13 Justice O’Connor points out that “there is no record evidence that
any voucher-eligible student was turned away from a nonreligious private
school in the voucher program.” Ante, at 671. But there is equally no

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705 Cite as: 536 U. S. 639 (2002)
Souter, J., dissenting
$2,500 cap that the program places on tuition for participat-
ing low-income pupils has the effect of curtailing the partici-
pation of nonreligious schools: “nonreligious schools with
higher tuition (about $4,000) stated that they could afford to
accommodate just a few voucher students.” 14 By compari-
son, the average tuition at participating Catholic schools in
Cleveland in 1999–2000 was $1,592, almost $1,000 below the
cap.15
evidence to support her assertion that “many parents with vouchers se-
lected nonreligious private schools over religious alternatives,” ibid., and
in fact the evidence is to the contrary, as only 129 students used vouchers
at private nonreligious schools.
14 General Accounting Office Report No. 01–914, School Vouchers: Pub-
licly Funded Programs in Cleveland and Milwaukee 25 (Aug. 2001) (GAO
Report). Of the 10 nonreligious private schools that “participate” in the
Cleveland voucher program, 3 currently enroll no voucher students. And
of the remaining seven schools, one enrolls over half of the 129 students
that attend these nonreligious schools, while only two others enroll more
than 8 voucher students. App. 281a–286a. Such schools can charge full
tuition to students whose families do not qualify as “low income,” but
unless the number of vouchers are drastically increased, it is unlikely that
these students will constitute a large fraction of voucher recipients, as
the program gives preference in the allocation of vouchers to low-income
children. See Ohio Rev. Code Ann. § 3313.978(A) (West Supp. 2002).
15 GAO Report 25. A 1993–1994 national study reported a similar aver-
age tuition for Catholic elementary schools ($1,572), but higher tuition for
other religious schools ($2,213), and nonreligious schools ($3,773). U. S.
Dept. of Ed., Office of Educational Research and Improvement, National
Center for Education Statistics, Private Schools in the United States: A
Statistical Profile, 1993–94 (NCES 1997–459 June 1997) (Table 1.5). The
figures are explained in part by the lower teaching expenses of the reli-
gious schools and general support by the parishes that run them. Cath-
olic schools, for example, received 24.1% of their revenue from parish
subsidies in the 2000–2001 school year. National Catholic Educational
Association, Balance Sheet for Catholic Elementary Schools: 2001 Income
and Expenses 25 (2001). Catholic schools also often rely on priests or
members of religious communities to serve as principals, 32% of 550 re-
porting schools in one study, id., at 21; at the elementary school level, the
average salary of religious sisters serving as principals in 2000–2001 was
$28,876, as compared to lay principals, who received on average $45,154,

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706 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
Of course, the obvious fix would be to increase the value
of vouchers so that existing nonreligious private and non-
Catholic religious schools would be able to enroll more
voucher students, and to provide incentives for educators to
create new such schools given that few presently exist. Pri-
vate choice, if as robust as that available to the seminarian
in Witters, would then be “true private choice” under the
majority’s criterion. But it is simply unrealistic to presume
that parents of elementary and middle school students in
Cleveland will have a range of secular and religious choices
even arguably comparable to the statewide program for vo-
cational and higher education in Witters. And to get to that
hypothetical point would require that such massive financial
support be made available to religion as to disserve every
objective of the Establishment Clause even more than the
present scheme does. See Part III–B, infra.16
and public school principals who reported an average salary of $72,587.
Ibid.
Justice O’Connor argues that nonreligious private schools can com-
pete with Catholic and other religious schools below the $2,500 tuition cap.
See ante, at 670–671. The record does not support this assertion, as only
three secular private schools in Cleveland enroll more than eight voucher
students. See n. 14, supra. Nor is it true, as she suggests, that our
national statistics are spurious because secular schools cater to a different
market from Catholic or other religious schools: while there is a spectrum
of nonreligious private schools, there is likely a commensurate range of
low-end and high-end religious schools. My point is that at each level,
the religious schools have a comparative cost advantage due to church
subsidies, donations of the faithful, and the like. The majority says that
nonreligious private schools in Cleveland derive similar benefits from
“third-party contributions,” ante, at 656, n. 4, but the one affidavit in the
record that backs up this assertion with data concerns a private school for
“emotionally disabled and developmentally delayed children” that received
11% of its budget from the United Way organization, App. 194a–195a, a
large proportion to be sure, but not even half of the 24.1% of budget that
Catholic schools on average receive in parish subsidies alone, see supra
this note.
16 The majority notes that I argue both that the Ohio program is un-
constitutional because the voucher amount is too low to create real pri-
vate choice and that any greater expenditure would be unconstitutional as

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Souter, J., dissenting
There is, in any case, no way to interpret the 96.6% of
current voucher money going to religious schools as reflect-
ing a free and genuine choice by the families that apply for
vouchers. The 96.6% reflects, instead, the fact that too few
nonreligious school desks are available and few but religious
schools can afford to accept more than a handful of voucher
students. And contrary to the majority’s assertion, ante, at
654, public schools in adjacent districts hardly have a finan-
cial incentive to participate in the Ohio voucher program,
and none has.17 For the overwhelming number of children
in the voucher scheme, the only alternative to the public
schools is religious. And it is entirely irrelevant that the
State did not deliberately design the network of private
schools for the sake of channeling money into religious insti-
tutions. The criterion is one of genuinely free choice on the
part of the private individuals who choose, and a Hobson’s
choice is not a choice, whatever the reason for being
Hobsonian.
III
I do not dissent merely because the majority has misap-
plied its own law, for even if I assumed arguendo that the
well. Ante, at 656–657, n. 4. The majority is dead right about this, and
there is no inconsistency here: any voucher program that satisfied the
majority’s requirement of “true private choice” would be even more egre-
giously unconstitutional than the current scheme due to the substantial
amount of aid to religious teaching that would be required.
17 As the Court points out, ante, at 645–646, n. 1, an out-of-district public
school that participates will receive a $2,250 voucher for each Cleveland stu-
dent on top of its normal state funding. The basic state funding, though, is
a drop in the bucket as compared to the cost of educating that student, as
much of the cost (at least in relatively affluent areas with presumptively
better academic standards) is paid by local income and property taxes.
See Brief for Ohio School Boards Association et al. as Amici Curiae 19–21.
The only adjacent district in which the voucher amount is close enough to
cover the local contribution is East Cleveland City (local contribution,
$2,019, see Ohio Dept. of Ed., 2002 Community School Report Card, East
Cleveland City School District, p. 2), but its public-school system hardly
provides an attractive alternative for Cleveland parents, as it too has been
classified by Ohio as an “academic emergency” district. See ibid.

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708 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
majority’s formal criteria were satisfied on the facts, today’s
conclusion would be profoundly at odds with the Constitu-
tion. Proof of this is clear on two levels. The first is cir-
cumstantial, in the now discarded symptom of violation, the
substantial dimension of the aid. The second is direct, in
the defiance of every objective supposed to be served by the
bar against establishment.
A
The scale of the aid to religious schools approved today
is unprecedented, both in the number of dollars and in the
proportion of systemic school expenditure supported. Each
measure has received attention in previous cases. On one
hand, the sheer quantity of aid, when delivered to a class of
religious primary and secondary schools, was suspect on the
theory that the greater the aid, the greater its proportion to
a religious school’s existing expenditures, and the greater
the likelihood that public money was supporting religious as
well as secular instruction. As we said in Meek, “it would
simply ignore reality to attempt to separate secular educa-
tional functions from the predominantly religious role” as the
object of aid that comes in “substantial amounts.” 421 U. S.,
at 365. Cf. Nyquist, 413 U. S., at 787–788 (rejecting argu-
ment that tuition assistance covered only 15% of education
costs, presumably secular, at religious schools). Conversely,
the more “attenuated [the] financial benefit . . . that eventu-
ally flows to parochial schools,” the more the Court has been
willing to find a form of state aid permissible. Mueller, 463
U. S., at 400.18
18 The majority relies on Mueller, Agostini, and Mitchell to dispute the
relevance of the large number of students that use vouchers to attend
religious schools, ante, at 658, but the reliance is inapt because each of
those cases involved insubstantial benefits to the religious schools, regard-
less of the number of students that benefited. See, e. g., Mueller, 463
U. S., at 391 ($112 in tax benefit to the highest bracket taxpayer, see Brief
for Respondents Becker et al. in Mueller v. Allen, O. T. 1982, No. 82–195,
p. 5); Agostini, 521 U. S., at 210 (aid “must ‘supplement, and in no case
supplant’ ”); Mitchell, 530 U. S., at 866 (O’Connor, J., concurring in judg-
ment) (“de minimis”). See also supra, at 694–695.

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709 Cite as: 536 U. S. 639 (2002)
Souter, J., dissenting
On the other hand, the Court has found the gross amount
unhelpful for Establishment Clause analysis when the aid af-
forded a benefit solely to one individual, however substantial
as to him, but only an incidental benefit to the religious
school at which the individual chose to spend the State’s
money. See Witters, 474 U. S., at 488; cf. Zobrest, 509 U. S.,
at 12. When neither the design nor the implementation of
an aid scheme channels a series of individual students’ sub-
sidies toward religious recipients, the relevant benefici-
aries for establishment purposes, the Establishment Clause
is unlikely to be implicated. The majority’s reliance on the
observations of five Members of the Court in Witters as to
the irrelevance of substantiality of aid in that case, see ante,
at 651, is therefore beside the point in the matter before
us, which involves considerable sums of public funds sys-
tematically distributed through thousands of students at-
tending religious elementary and middle schools in the city
of Cleveland.19
19 No less irrelevant, and lacking even arguable support in our cases, is
Justice O’Connor’s argument that the $8.2 million in tax-raised funds
distributed under the Ohio program to religious schools is permissible
under the Establishment Clause because it “pales in comparison to the
amount of funds that federal, state, and local governments already provide
religious institutions,” ante, at 665. Our cases have consistently held that
state benefits at some level can go to religious institutions when the recipi-
ents are not pervasively sectarian, see, e. g., Tilton v. Richardson, 403
U. S. 672 (1971) (aid to church-related colleges and universities); Bradfield
v. Roberts, 175 U. S. 291 (1899) (religious hospitals); when the benefit
comes in the form of tax exemption or deduction, see, e. g., Walz v. Tax
Comm’n of City of New York, 397 U. S. 664 (1970) (property-tax exemp-
tions); Mueller v. Allen, 463 U. S. 388 (1983) (tax deductions for educa-
tional expenses); or when the aid can plausibly be said to go to individual
university students, see, e. g., Witters v. Washington Dept. of Servs. for
Blind, 474 U. S. 481 (1986) (state scholarship programs for higher educa-
tion, and by extension federal programs such as the G. I. Bill). The fact
that those cases often allow for large amounts of aid says nothing about
direct aid to pervasively sectarian schools for religious teaching. This
“greater justifies the lesser” argument not only ignores the aforemen-
tioned cases, it would completely swallow up our aid-to-school cases from
Everson onward: if $8.2 million in vouchers is acceptable, for example,

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710 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
The Cleveland voucher program has cost Ohio taxpayers
$33 million since its implementation in 1996 ($28 million in
voucher payments, $5 million in administrative costs), and
its cost was expected to exceed $8 million in the 2001–2002
school year. People for the American Way Foundation, Five
Years and Counting: A Closer Look at the Cleveland Voucher
Program 1–2 (Sept. 25, 2001) (hereinafter Cleveland Voucher
Program) (cited in Brief for National School Boards Associa-
tion et al. as Amici Curiae 9). These tax-raised funds are
on top of the textbooks, reading and math tutors, laboratory
equipment, and the like that Ohio provides to private
schools, worth roughly $600 per child. Cleveland Voucher
Program 2.20
The gross amounts of public money contributed are symp-
tomatic of the scope of what the taxpayers’ money buys for
a broad class of religious-school students. In paying for
practically the full amount of tuition for thousands of quali-
fying students,21 cf. Nyquist, supra, at 781–783 (state
aid amounting to 50% of tuition was unconstitutional), the
scholarships purchase everything that tuition purchases, be
it instruction in math or indoctrination in faith. The conse-
why is there any requirement against greater than de minimis diversion
to religious uses? See Mitchell, supra, at 866 (O’Connor, J., concurring
in judgment).
20 The amount of federal aid that may go to religious education after
today’s decision is startling: according to one estimate, the cost of a na-
tional voucher program would be $73 billion, 25% more than the current
national public-education budget. People for the American Way Founda-
tion, Community Voice or Captive of the Right? 10 (Dec. 2001).
21 Most, if not all, participating students come from families with in-
comes below 200% of the poverty line (at least 60% are below the poverty
line, App. in Nos. 00–3055, etc. (CA6), p. 1679), and are therefore eligible
for vouchers covering 90% of tuition, Ohio Rev. Code Ann. § 3313.978(A)
(West Supp. 2002); they may make up the 10% shortfall by “in-kind con-
tributions or services,” which the recipient school “shall permit,”
§ 3313.976(A)(8). Any higher income students in the program receive
vouchers paying 75% of tuition costs. § 3313.978(A).

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711 Cite as: 536 U. S. 639 (2002)
Souter, J., dissenting
quences of “substantial” aid hypothesized in Meek are real-
ized here: the majority makes no pretense that substantial
amounts of tax money are not systematically underwriting
religious practice and indoctrination.
B
It is virtually superfluous to point out that every objective
underlying the prohibition of religious establishment is be-
trayed by this scheme, but something has to be said about
the enormity of the violation. I anticipated these objectives
earlier, supra, at 689–690, in discussing Everson, which cata-
loged them, the first being respect for freedom of conscience.
Jefferson described it as the idea that no one “shall be com-
pelled to . . . support any religious worship, place, or ministry
whatsoever,” A Bill for Establishing Religious Freedom, in
5 The Founders’ Constitution 84 (P. Kurland & R. Lerner
eds. 1987), even a “teacher of his own religious persuasion,”
ibid., and Madison thought it violated by any “ ‘authority
which can force a citizen to contribute three pence . . . of his
property for the support of any . . . establishment.’ ” Memo-
rial and Remonstrance ¶ 3, reprinted in Everson, 330 U. S.,
at 65–66. “Any tax to establish religion is antithetical to
the command that the minds of men always be wholly free,”
Mitchell, 530 U. S., at 871 (Souter, J., dissenting) (internal
quotation marks and citations omitted).22 Madison’s objec-
tion to three pence has simply been lost in the majority’s
formalism.
As for the second objective, to save religion from its own
corruption, Madison wrote of the “ ‘experience . . . that eccle-
22 As a historical matter, the protection of liberty of conscience may well
have been the central objective served by the Establishment Clause. See
Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y.
U. L. Rev. 346, 398 (May 2002) (“In the time between the proposal of the
Constitution and of the Bill of Rights, the predominant, not to say exclu-
sive, argument against established churches was that they had the poten-
tial to violate liberty of conscience”).

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712 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
siastical establishments, instead of maintaining the purity
and efficacy of Religion, have had a contrary operation.’ ”
Memorial and Remonstrance ¶ 7, reprinted in Everson, 330
U. S., at 67. In Madison’s time, the manifestations were
“pride and indolence in the Clergy; ignorance and servility
in the laity[,] in both, superstition, bigotry and persecution,”
ibid.; in the 21st century, the risk is one of “corrosive secular-
ism” to religious schools, Ball, 473 U. S., at 385, and the spe-
cific threat is to the primacy of the schools’ mission to edu-
cate the children of the faithful according to the unaltered
precepts of their faith. Even “[t]he favored religion may be
compromised as political figures reshape the religion’s beliefs
for their own purposes; it may be reformed as government
largesse brings government regulation.” Lee v. Weisman,
505 U. S. 577, 608 (1992) (Blackmun, J., concurring).
The risk is already being realized. In Ohio, for example,
a condition of receiving government money under the pro-
gram is that participating religious schools may not “discrim-
inate on the basis of . . . religion,” Ohio Rev. Code Ann.
§ 3313.976(A)(4) (West Supp. 2002), which means the school
may not give admission preferences to children who are
members of the patron faith; children of a parish are gener-
ally consigned to the same admission lotteries as non-
believers, §§ 3313.977(A)(1)(c)–(d). This indeed was the
exact object of a 1999 amendment repealing the portion of a
predecessor statute that had allowed an admission prefer-
ence for “[c]hildren . . . whose parents are affiliated with any
organization that provides financial support to the school,
at the discretion of the school.” § 3313.977(A)(1)(d) (West
1999). Nor is the State’s religious antidiscrimination re-
striction limited to student admission policies: by its terms,
a participating religious school may well be forbidden to
choose a member of its own clergy to serve as teacher or
principal over a layperson of a different religion claiming

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Souter, J., dissenting
equal qualification for the job.23 Cf. National Catholic Edu-
cational Association, Balance Sheet for Catholic Elementary
Schools: 2001 Income and Expenses 25 (2001) (“31% of [re-
porting Catholic elementary and middle] schools had at least
one full-time teacher who was a religious sister”). Indeed,
a separate condition that “[t]he school . . . not . . . teach ha-
tred of any person or group on the basis of . . . religion,”
§ 3313.976(A)(6) (West Supp. 2002), could be understood (or
subsequently broadened) to prohibit religions from teaching
traditionally legitimate articles of faith as to the error, sin-
fulness, or ignorance of others,24 if they want government
money for their schools.
23 And the courts will, of course, be drawn into disputes about whether
a religious school’s employment practices violated the Ohio statute. In
part precisely to avoid this sort of involvement, some Courts of Appeals
have held that religious groups enjoy a First Amendment exemption for
clergy from state and federal laws prohibiting discrimination on the basis
of race or ethnic origin. See, e. g., Rayburn v. General Conference of
Seventh-Day Adventists, 772 F. 2d 1164, 1170 (CA4 1985) (“The application
of Title VII to employment decisions of this nature would result in an
intolerably close relationship between church and state both on a substan-
tive and procedural level”); EEOC v. Catholic Univ. of America, 83 F. 3d
455, 470 (CADC 1996); Young v. Northern Ill. Conference of United
Methodist Church, 21 F. 3d 184, 187 (CA7 1994). This approach would
seem to be blocked in Ohio by the same antidiscrimination provision,
which also covers “race . . . or ethnic background.” Ohio Rev. Code Ann.
§ 3313.976(A)(4) (West Supp. 2002).
24 See, e. g., Christian New Testament (2 Corinthians 6:14) (King James
Version) (“Be ye not unequally yoked together with unbelievers: for what
fellowship hath righteousness with unrighteousness? and what communion
hath light with darkness?”); The Book of Mormon (2 Nephi 9:24) (“And if
they will not repent and believe in his name, and be baptized in his name,
and endure to the end, they must be damned; for the Lord God, the Holy
One of Israel, has spoken it”); Pentateuch (Deut. 29:19) (The New Jewish
Publication Society Translation) (for one who converts to another faith,
“[t]he Lord will never forgive him; rather will the Lord’s anger and pas-
sion rage against that man, till every sanction recorded in this book comes
down upon him, and the Lord blots out his name from under heaven”);

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714 ZELMAN v. SIMMONS-HARRIS
Souter, J., dissenting
For perspective on this foot-in-the-door of religious regu-
lation, it is well to remember that the money has barely
begun to flow. Prior examples of aid, whether grants
through individuals or in-kind assistance, were never sig-
nificant enough to alter the basic fiscal structure of religious
schools; state aid was welcome, but not indispensable. See,
e. g., Mitchell, 530 U. S., at 802 (federal funds could only sup-
plement funds from nonfederal sources); Agostini, 521 U. S.,
at 210 (federally funded services could “ ‘supplement, and in
no case supplant, the level of services’ ” already provided).
But given the figures already involved here, there is no ques-
tion that religious schools in Ohio are on the way to becom-
ing bigger businesses with budgets enhanced to fit their new
stream of tax-raised income. See, e. g., People for the Amer-
ican Way Foundation, A Painful Price 5, 9, 11 (Feb. 14, 2002)
(of 91 schools participating in the Milwaukee program, 75
received voucher payments in excess of tuition, 61 of those
were religious and averaged $185,000 worth of overpayment
per school, justified in part to “raise low salaries”). The ad-
ministrators of those same schools are also no doubt follow-
ing the politics of a move in the Ohio State Senate to raise
the current maximum value of a school voucher from $2,250
to the base amount of current state spending on each public
school student ($4,814 for the 2001 fiscal year). See Bloedel,
Bill Analysis of S. B. No. 89, 124th Ohio Gen. Assembly, regu-
lar session 2001–2002 (Ohio Legislative Service Commission).
Ohio, in fact, is merely replicating the experience in Wiscon-
sin, where a similar increase in the value of educational
vouchers in Milwaukee has induced the creation of some 23
new private schools, Public Policy Forum, Research Brief,
vol. 90, no. 1, p. 3 (Jan. 23, 2002), some of which, we may
safely surmise, are religious. New schools have presumably
The Koran 334 (The Cow Ch. 2:1) (N. Dawood transl. 4th rev. ed. 1974)
(“As for the unbelievers, whether you forewarn them or not, they will not
have faith. Allah has set a seal upon their hearts and ears; their sight is
dimmed and a grievous punishment awaits them”).

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Souter, J., dissenting
pegged their financial prospects to the government from the
start, and the odds are that increases in government aid will
bring the threshold voucher amount closer to the tuition at
even more expensive religious schools.
When government aid goes up, so does reliance on it; the
only thing likely to go down is independence. If Justice
Douglas in Allen was concerned with state agencies, in-
fluenced by powerful religious groups, choosing the text-
books that parochial schools would use, 392 U. S., at 265
(dissenting opinion), how much more is there reason to won-
der when dependence will become great enough to give the
State of Ohio an effective veto over basic decisions on the
content of curriculums? A day will come when religious
schools will learn what political leverage can do, just as
Ohio’s politicians are now getting a lesson in the leverage
exercised by religion.
Increased voucher spending is not, however, the sole por-
tent of growing regulation of religious practice in the school,
for state mandates to moderate religious teaching may well
be the most obvious response to the third concern behind
the ban on establishment, its inextricable link with social
conflict. See Mitchell, supra, at 872 (Souter, J., dissent-
ing); Everson, 330 U. S., at 8–11. As appropriations for reli-
gious subsidy rise, competition for the money will tap sectar-
ian religion’s capacity for discord. “Public money devoted
to payment of religious costs, educational or other, brings
the quest for more. It brings too the struggle of sect
against sect for the larger share or for any. Here one by
numbers alone will benefit most, there another.” Id., at 53.
(Rutledge, J., dissenting).
Justice Breyer has addressed this issue in his own dis-
senting opinion, which I join, and here it is enough to say
that the intensity of the expectable friction can be gauged
by realizing that the scramble for money will energize not
only contending sectarians, but taxpayers who take their lib-
erty of conscience seriously. Religious teaching at taxpayer

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716 ZELMAN v. SIMMONS-HARRIS
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expense simply cannot be cordoned from taxpayer politics,
and every major religion currently espouses social positions
that provoke intense opposition. Not all taxpaying Protes-
tant citizens, for example, will be content to underwrite the
teaching of the Roman Catholic Church condemning the
death penalty.25 Nor will all of America’s Muslims acquiesce
in paying for the endorsement of the religious Zionism
taught in many religious Jewish schools, which combines
“a nationalistic sentiment” in support of Israel with a
“deeply religious” element.26 Nor will every secular tax-
payer be content to support Muslim views on differential
treatment of the sexes,27 or, for that matter, to fund the
espousal of a wife’s obligation of obedience to her husband,
presumably taught in any schools adopting the articles of
faith of the Southern Baptist Convention.28 Views like
these, and innumerable others, have been safe in the sectar-
ian pulpits and classrooms of this Nation not only because
the Free Exercise Clause protects them directly, but because
the ban on supporting religious establishment has protected
free exercise, by keeping it relatively private. With the ar-
rival of vouchers in religious schools, that privacy will go,
and along with it will go confidence that religious disagree-
ment will stay moderate.
* * *
If the divisiveness permitted by today’s majority is to be
avoided in the short term, it will be avoided only by action
25 See R. Martino, Abolition of the Death Penalty (Nov. 2, 1999) (“The
position of the Holy See, therefore, is that authorities, even for the most
serious crimes, should limit themselves to non-lethal means of punish-
ment”) (citing John Paul II, Evangelium Vitae, n. 56).
26 H. Donin, To Be a Jew 15 (1972).
27 See R. Martin, Islamic Studies 224 (2d ed. 1996) (interpreting the
Koran to mean that “[m]en are responsible to earn a living and provide
for their families; women bear children and run the household”).
28 See The Baptist Faith and Message, Art. XVIII, available at www.
sbc.net/ bfm/ bfm2000.asp#xviii (available in Clerk of Court’s case file)
(“A wife is to submit herself graciously to the servant leadership of her
husband even as the church willingly submits to the headship of Christ”).

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Breyer, J., dissenting
of the political branches at the state and national levels.
Legislatures not driven to desperation by the problems of
public education may be able to see the threat in vouchers
negotiable in sectarian schools. Perhaps even cities with
problems like Cleveland’s will perceive the danger, now that
they know a federal court will not save them from it.
My own course as a judge on the Court cannot, however,
simply be to hope that the political branches will save us
from the consequences of the majority’s decision. Everson’s
statement is still the touchstone of sound law, even though
the reality is that in the matter of educational aid the Estab-
lishment Clause has largely been read away. True, the ma-
jority has not approved vouchers for religious schools alone,
or aid earmarked for religious instruction. But no scheme
so clumsy will ever get before us, and in the cases that we
may see, like these, the Establishment Clause is largely si-
lenced. I do not have the option to leave it silent, and I
hope that a future Court will reconsider today’s dramatic
departure from basic Establishment Clause principle.
Justice Breyer, with whom Justice Stevens and
Justice Souter join, dissenting.
I join Justice Souter’s opinion, and I agree substantially
with Justice Stevens. I write separately, however, to em-
phasize the risk that publicly financed voucher programs
pose in terms of religiously based social conflict. I do so
because I believe 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. And by explain-
ing the nature of the concern, I hope to demonstrate why, in
my view, “parental choice” cannot significantly alleviate the
constitutional problem. See Part IV, infra.
I
The First Amendment begins with a prohibition, that
“Congress shall make no law respecting an establishment of

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religion,” and a guarantee, that the government shall not
prohibit “the free exercise thereof.” These Clauses embody
an understanding, reached in the 17th century after decades
of religious war, that liberty and social stability demand a
religious tolerance that respects the religious views of all
citizens, permits those citizens to “worship God in their own
way,” and allows all families to “teach their children and to
form their characters” as they wish. C. Radcliffe, The
Law & Its Compass 71 (1960). The Clauses reflect the
Framers’ vision of an American Nation free of the religious
strife that had long plagued the nations of Europe. See,
e. g., Freund, Public Aid to Parochial Schools, 82 Harv.
L. Rev. 1680, 1692 (1969) (religious strife was “one of the
principal evils that the first amendment sought to forestall”);
B. Kosmin & S. Lachman, One Nation Under God: Religion
in Contemporary American Society 24 (1993) (First Amend-
ment designed in “part to prevent the religious wars of Eu-
rope from entering the United States”). Whatever the
Framers might have thought about particular 18th-century
school funding practices, they undeniably intended an inter-
pretation of the Religion Clauses that would implement this
basic First Amendment objective.
In part for this reason, the Court’s 20th-century Establish-
ment Clause cases—both those limiting the practice of reli-
gion in public schools and those limiting the public funding
of private religious education—focused directly upon social
conflict, potentially created when government becomes in-
volved in religious education. In Engel v. Vitale, 370 U. S.
421 (1962), the Court held that the Establishment Clause for-
bids prayer in public elementary and secondary schools. It
did so in part because it recognized the “anguish, hardship
and bitter strife that could come when zealous religious
groups struggl[e] with one another to obtain the Govern-
ment’s stamp of approval . . . .” Id., at 429. And it added:
“The history of governmentally established religion,
both in England and in this country, showed that when-

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ever government had allied itself with one particular
form of religion, the inevitable result had been that it
had incurred the hatred, disrespect and even contempt
of those who held contrary beliefs.” Id., at 431.
See also Lee v. Weisman, 505 U. S. 577, 588 (1992) (striking
down school-sanctioned prayer at high school graduation cer-
emony because “potential for divisiveness” has “particular
relevance” in school environment); School Dist. of Abington
Township v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J.,
concurring) (Bible-reading program violated Establishment
Clause in part because it gave rise “to those very divisive
influences and inhibitions of freedom” that come with gov-
ernment efforts to impose religious influence on “young im-
pressionable [school] children”).
In Lemon v. Kurtzman, 403 U. S. 602 (1971), the Court
held that the Establishment Clause forbids state funding,
through salary supplements, of religious school teachers. It
did so in part because of the “threat” that this funding would
create religious “divisiveness” that would harm “the normal
political process.” Id., at 622. The Court explained:
“[P]olitical debate and division . . . are normal and
healthy manifestations of our democratic system of
government, but political division along religious lines
was one of the principal evils against which [the First
Amendment’s religious clauses were] . . . intended to
protect.” Ibid.
And in Committee for Public Ed. & Religious Liberty v.
Nyquist, 413 U. S. 756, 794 (1973), the Court struck down a
state statute that, much like voucher programs, provided aid
for parents whose children attended religious schools, ex-
plaining that the “assistance of the sort here involved carries
grave potential for . . . continuing political strife over aid
to religion.”
When it decided these 20th-century Establishment Clause
cases, the Court did not deny that an earlier American soci-

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ety might have found a less clear-cut church/state separation
compatible with social tranquility. Indeed, historians point
out that during the early years of the Republic, American
schools—including the first public schools—were Protestant
in character. Their students recited Protestant prayers,
read the King James version of the Bible, and learned Prot-
estant religious ideals. See, e. g., D. Tyack, Onward Chris-
tian Soldiers: Religion in the American Common School, in
History and Education 217–226 (P. Nash ed. 1970). Those
practices may have wrongly discriminated against members
of minority religions, but given the small number of such
individuals, the teaching of Protestant religions in schools
did not threaten serious social conflict. See Kosmin & Lach-
man, supra, at 45 (Catholics constituted less than 2% of
American church-affiliated population at time of founding).
The 20th-century Court was fully aware, however, that im-
migration and growth had changed American society dra-
matically since its early years. By 1850, 1.6 million Catho-
lics lived in America, and by 1900 that number rose to 12
million. Jeffries & Ryan, A Political History of the Estab-
lishment Clause, 100 Mich. L. Rev. 279, 299–300 (Nov. 2001).
There were similar percentage increases in the Jewish pop-
ulation. Kosmin & Lachman, supra, at 45–46. Not sur-
prisingly, with this increase in numbers, members of non-
Protestant religions, particularly Catholics, began to resist
the Protestant domination of the public schools. Scholars
report that by the mid-19th century religious conflict over
matters such as Bible reading “grew intense,” as Catholics
resisted and Protestants fought back to preserve their domi-
nation. Jeffries & Ryan, supra, at 300. “Dreading Catho-
lic domination,” native Protestants “terrorized Catholics.”
P. Hamburger, Separation of Church and State 219 (2002).
In some States “Catholic students suffered beatings or ex-
pulsions for refusing to read from the Protestant Bible, and
crowds . . . rioted over whether Catholic children could be

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released from the classroom during Bible reading.” Jeff-
ries & Ryan, 100 Mich. L. Rev., at 300.
The 20th-century Court was also aware that political ef-
forts to right the wrong of discrimination against religious
minorities in primary education had failed; in fact they had
exacerbated religious conflict. Catholics sought equal gov-
ernment support for the education of their children in the
form of aid for private Catholic schools. But the “Protes-
tant position” on this matter, scholars report, “was that
public schools must be ‘nonsectarian’ (which was usually un-
derstood to allow Bible reading and other Protestant obser-
vances) and public money must not support ‘sectarian’
schools (which in practical terms meant Catholic).” Id., at
301. And this sentiment played a significant role in creating
a movement that sought to amend several state constitutions
(often successfully), and to amend the United States Consti-
tution (unsuccessfully) to make certain that government
would not help pay for “sectarian” (i. e., Catholic) schooling
for children. Id., at 301–305. See also Hamburger, supra,
at 287.
These historical circumstances suggest that the Court,
applying the Establishment Clause through the Fourteenth
Amendment to 20th-century American society, faced an in-
terpretive dilemma that was in part practical. The Court
appreciated the religious diversity of contemporary Ameri-
can society. See Schempp, supra, at 240 (Brennan, J., con-
curring). It realized that the status quo favored some reli-
gions at the expense of others. And it understood the
Establishment Clause to prohibit (among other things) any
such favoritism. Yet how did the Clause achieve that objec-
tive? Did it simply require the government to give each
religion an equal chance to introduce religion into the pri-
mary schools—a kind of “equal opportunity” approach to the
interpretation of the Establishment Clause? Or, did that
Clause avoid government favoritism of some religions by
insisting upon “separation”—that the government achieve

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equal treatment by removing itself from the business of pro-
viding religious education for children? This interpretive
choice arose in respect both to religious activities in public
schools and government aid to private education.
In both areas the Court concluded that the Establishment
Clause required “separation,” in part because an “equal op-
portunity” approach was not workable. With respect to re-
ligious activities in the public schools, how could the Clause
require public primary and secondary school teachers, when
reading prayers or the Bible, only to treat all religions alike?
In many places there were too many religions, too diverse a
set of religious practices, too many whose spiritual beliefs
denied the virtue of formal religious training. This diver-
sity made it difficult, if not impossible, to devise meaningful
forms of “equal treatment” by providing an “equal opportu-
nity” for all to introduce their own religious practices into
the public schools.
With respect to government aid to private education, did
not history show that efforts to obtain equivalent funding for
the private education of children whose parents did not hold
popular religious beliefs only exacerbated religious strife?
As Justice Rutledge recognized:
“Public money devoted to payment of religious costs, ed-
ucational or other, brings the quest for more. It brings
too the struggle of sect against sect for the larger share
or for any. Here one [religious sect] by numbers [of
adherents] alone will benefit most, there another. This
is precisely the history of societies which have had an
established religion and dissident groups.” Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 53–54 (1947) (dissent-
ing opinion).
The upshot is the development of constitutional doctrine
that reads the Establishment Clause as avoiding religious
strife, not by providing every religion with an equal oppor-
tunity (say, to secure state funding or to pray in the public

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schools), but by drawing fairly clear lines of separation be-
tween church and state—at least where the heartland of reli-
gious belief, such as primary religious education, is at issue.
II
The principle underlying these cases—avoiding religiously
based social conflict—remains of great concern. As reli-
giously diverse as America had become when the Court de-
cided its major 20th-century Establishment Clause cases, we
are exponentially more diverse today. America boasts more
than 55 different religious groups and subgroups with a sig-
nificant number of members. Graduate Center of the City
University of New York, B. Kosmin, E. Mayer, & A. Keysar,
American Religious Identification Survey 12–13 (2001).
Major religions include, among others, Protestants, Catho-
lics, Jews, Muslims, Buddhists, Hindus, and Sikhs. Ibid.
And several of these major religions contain different subsid-
iary sects with different religious beliefs. See Lester, Oh,
Gods!, The Atlantic Monthly 37 (Feb. 2002). Newer Chris-
tian immigrant groups are “expressing their Christianity in
languages, customs, and independent churches that are
barely recognizable, and often controversial, for European-
ancestry Catholics and Protestants.” H. Ebaugh & J.
Chafetz, Religion and the New Immigrants: Continuities and
Adaptations in Immigrant Congregations 4 (abridged stu-
dent ed. 2002).
Under these modern-day circumstances, how is the “equal
opportunity” principle to work—without risking the “strug-
gle of sect against sect” against which Justice Rutledge
warned? School voucher programs finance the religious ed-
ucation of the young. And, if widely adopted, they may well
provide billions of dollars that will do so. Why will different
religions not become concerned about, and seek to influence,
the criteria used to channel this money to religious schools?
Why will they not want to examine the implementation of
the programs that provide this money—to determine, for ex-

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ample, whether implementation has biased a program toward
or against particular sects, or whether recipient religious
schools are adequately fulfilling a program’s criteria? If so,
just how is the State to resolve the resulting controversies
without provoking legitimate fears of the kinds of religious
favoritism that, in so religiously diverse a Nation, threaten
social dissension?
Consider the voucher program here at issue. That pro-
gram insists that the religious school accept students of all
religions. Does that criterion treat fairly groups whose reli-
gion forbids them to do so? The program also insists that
no participating school “advocate or foster unlawful behavior
or teach hatred of any person or group on the basis of race,
ethnicity, national origin, or religion.” Ohio Rev. Code Ann.
§ 3313.976(A)(6) (West Supp. 2002). And it requires the
State to “revoke the registration of any school if, after a
hearing, the superintendent determines that the school is in
violation” of the program’s rules. § 3313.976(B). As one
amicus argues, “it is difficult to imagine a more divisive ac-
tivity” than the appointment of state officials as referees to
determine whether a particular religious doctrine “teaches
hatred or advocates lawlessness.” Brief for National Com-
mittee for Public Education and Religious Liberty as Ami-
cus Curiae 23.
How are state officials to adjudicate claims that one reli-
gion or another is advocating, for example, civil disobedience
in response to unjust laws, the use of illegal drugs in a reli-
gious ceremony, or resort to force to call attention to what
it views as an immoral social practice? What kind of public
hearing will there be in response to claims that one religion
or another is continuing to teach a view of history that casts
members of other religions in the worst possible light? How
will the public react to government funding for schools that
take controversial religious positions on topics that are of
current popular interest—say, the conflict in the Middle East
or the war on terrorism? Yet any major funding program

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for primary religious education will require criteria. And
the selection of those criteria, as well as their application,
inevitably pose problems that are divisive. Efforts to re-
spond to these problems not only will seriously entangle
church and state, see Lemon, 403 U. S., at 622, but also will
promote division among religious groups, as one group or
another fears (often legitimately) that it will receive unfair
treatment at the hands of the government.
I recognize that other nations, for example Great Britain
and France, have in the past reconciled religious school fund-
ing and religious freedom without creating serious strife.
Yet British and French societies are religiously more homo-
geneous—and it bears noting that recent waves of immigra-
tion have begun to create problems of social division there
as well. See, e. g., The Muslims of France, 75 Foreign Af-
fairs 78 (1996) (describing increased religious strife in
France, as exemplified by expulsion of teenage girls from
school for wearing traditional Muslim scarves); Ahmed, Ex-
treme Prejudice; Muslims in Britain, The Times of London,
May 2, 1992, p. 10 (describing religious strife in connection
with increased Muslim immigration in Great Britain).
In a society as religiously diverse as ours, the Court has
recognized that we must rely on the Religion Clauses of the
First Amendment to protect against religious strife, particu-
larly when what is at issue is an area as central to religious
belief as the shaping, through primary education, of the next
generation’s minds and spirits. See, e. g., Webster, On the
Education of Youth in America (1790), in Essays on Educa-
tion in the Early Republic 43, 53, 59 (F. Rudolph ed. 1965)
(“[E]ducation of youth” is “of more consequence than making
laws and preaching the gospel, because it lays the foundation
on which both law and gospel rest for success”); Pope Paul
VI, Declaration on Christian Education (1965) (“[T]he Catho-
lic school can be such an aid to the fulfillment of the mission
of the People of God and to the fostering of dialogue between

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the Church and mankind, to the benefit of both, it retains
even in our present circumstances the utmost importance”).
III
I concede that the Establishment Clause currently permits
States to channel various forms of assistance to religious
schools, for example, transportation costs for students, com-
puters, and secular texts. See Everson v. Board of Ed. of
Ewing, 330 U. S. 1 (1947); Mitchell v. Helms, 530 U. S. 793
(2000). States now certify the nonsectarian educational con-
tent of religious school education. See, e. g., New Life Bap-
tist Church Academy v. East Longmeadow, 885 F. 2d 940
(CA1 1989). Yet the consequence has not been great tur-
moil. But see, e. g., May, Charter School’s Religious Tone;
Operation of South Bay Academy Raises Church-State Ques-
tions, San Francisco Chronicle, Dec. 17, 2001, p. A1 (describ-
ing increased government supervision of charter schools
after complaints that students were “studying Islam in class
and praying with their teachers,” and Muslim educators com-
plaining of “ ‘post-Sept. 11 anti-Muslim sentiment’ ”).
School voucher programs differ, however, in both kind and
degree from aid programs upheld in the past. They differ in
kind because they direct financing to a core function of the
church: the teaching of religious truths to young children.
For that reason the constitutional demand for “separation”
is of particular constitutional concern. See, e. g., Weisman,
505 U. S., at 592 (“heightened concerns” in context of pri-
mary education); Edwards v. Aguillard, 482 U. S. 578, 583–
584 (1987) (“Court has been particularly vigilant in monitor-
ing compliance with the Establishment Clause in elementary
and secondary schools”).
Private schools that participate in Ohio’s program, for ex-
ample, recognize the importance of primary religious educa-
tion, for they pronounce that their goals are to “communicate
the gospel,” “provide opportunities to . . . experience a faith
community,” “provide . . . for growth in prayer,” and “pro-

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vide instruction in religious truths and values.” App. 408a,
487a. History suggests, not that such private school teach-
ing of religion is undesirable, but that government funding
of this kind of religious endeavor is far more contentious
than providing funding for secular textbooks, computers, vo-
cational training, or even funding for adults who wish to ob-
tain a college education at a religious university. See supra,
at 720–722. Contrary to Justice O’Connor’s opinion, ante,
at 665–666 (concurring opinion), history also shows that gov-
ernment involvement in religious primary education is far
more divisive than state property tax exemptions for reli-
gious institutions or tax deductions for charitable contri-
butions, both of which come far closer to exemplifying the
neutrality that distinguishes, for example, fire protection
on the one hand from direct monetary assistance on the
other. Federal aid to religiously based hospitals, ante, at
666 (O’Connor, J., concurring), is even further removed from
education, which lies at the heartland of religious belief.
Vouchers also differ in degree. The aid programs recently
upheld by the Court involved limited amounts of aid to reli-
gion. But the majority’s analysis here appears to permit a
considerable shift of taxpayer dollars from public secular
schools to private religious schools. That fact, combined
with the use to which these dollars will be put, exacerbates
the conflict problem. State aid that takes the form of pe-
ripheral secular items, with prohibitions against diversion of
funds to religious teaching, holds significantly less potential
for social division. In this respect as well, the secular aid
upheld in Mitchell differs dramatically from the present case.
Although it was conceivable that minor amounts of money
could have, contrary to the statute, found their way to the
religious activities of the recipients, see 530 U. S., at 864
(O’Connor, J., concurring in judgment), that case is at worst
the camel’s nose, while the litigation before us is the camel
itself.

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IV
I do not believe that the “parental choice” aspect of the
voucher program sufficiently offsets the concerns I have
mentioned. Parental choice cannot help the taxpayer who
does not want to finance the religious education of children.
It will not always help the parent who may see little real
choice between inadequate nonsectarian public education and
adequate education at a school whose religious teachings are
contrary to his own. It will not satisfy religious minorities
unable to participate because they are too few in number to
support the creation of their own private schools. It will
not satisfy groups whose religious beliefs preclude them
from participating in a government-sponsored program, and
who may well feel ignored as government funds primarily
support the education of children in the doctrines of the dom-
inant religions. And it does little to ameliorate the entan-
glement problems or the related problems of social division
that Part II, supra, describes. Consequently, the fact that
the parent may choose which school can cash the govern-
ment’s voucher check does not alleviate the Establishment
Clause concerns associated with voucher programs.
V
The Court, in effect, turns the clock back. It adopts,
under the name of “neutrality,” an interpretation of the Es-
tablishment Clause that this Court rejected more than half
a century ago. In its view, the parental choice that offers
each religious group a kind of equal opportunity to secure
government funding overcomes the Establishment Clause
concern for social concord. An earlier Court found that
“equal opportunity” principle insufficient; it read the Clause
as insisting upon greater separation of church and state, at
least in respect to primary education. See Nyquist, 413
U. S., at 783. In a society composed of many different reli-
gious creeds, I fear that this present departure from the
Court’s earlier understanding risks creating a form of reli-

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729 Cite as: 536 U. S. 639 (2002)
Breyer, J., dissenting
giously based conflict potentially harmful to the Nation’s so-
cial fabric. Because I believe the Establishment Clause was
written in part to avoid this kind of conflict, and for reasons
set forth by Justice Souter and Justice Stevens,
I respectfully dissent.