Judge the Brief

Case Name

Zelman v. Simmons-Harris (1982)

Legal Citation

Epstein and Walker, p194

Relevant Case Facts

The Baltimore school district faced a crisis, as studies found it to be one of the worst-performing districts in the country. It failed to meet eighteen state standards, only 10 percent of ninth graders passed proficiency exams, and more than two-thirds of students dropped out before graduation. To improve performance, the district set up a program whereby students could choose from among five options: (a) stay in the Cleveland public schools as before, (b) receive a scholarship to go to a nonreligious private school, (c) receive a scholarship to go to a religious private school, (d) stay in the district and receive $500 in tutorial assistance, or (e) attend a public school outside the district. Simmons-Harris sued, charging that the voucher program violated the First Amendment's free exercise clause because only 10 percent of the private schools available were religious, and only 5 percent of students used their vouchers at private schools.

Legal Issue

Does the voucher program offend the 14th Amendment to the Constitution?


No. By a vote of 7–2 the Court ruled in favor of Zelman.


  1. There is no doubt that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a failing public school system. Our decisions have drawn a consistent distinction between government programs that provide aid directly to schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.
  2. Three times we have faced challenges to neutral governmental programs that provide aid to a broad class of individuals, who in turn direct aid to religious schools. Each time we have rejected the challenges (Mueller, Witters, and Zobrest). These cases make it clear that where a government aid program is neutral with respect to religion and provides assistance directly to a broad class of citizens who then direct their aid to religious schools, the program most likely violates the establishment clause.
  3. Here, the program is not one of true private choice. It is not neutral in all respects toward religion and is part of an attempt to channel funds to wealthy citizens who send their children to religious schools. Only certain religious groups are free to participate.
  4. Despite the respondent's claim, we have repeatedly recognized that no reasonable observer would think a neutral program of private choice, where the state aid reaches religious schools through the independent decisions of private individuals, carries the imprimatur of government endorsement. Additionally, the constitutionality of this program turns on whether most schools in the program are religious.

Separate Opinions

  • Thomas: concurring
  • O'Connor: dissenting
  • Breyer: dissenting (with Stevens and Souter)
  • Souter: dissenting (with Stevens, Ginsburg, and Breyer)
  • Stevens: dissenting