The State of Ohio established a pilot program to provide educational choices to families with children living in Cleveland School District and the program’s main target was low-income and minority children. The program required that any participating school agree not to discriminate on the basis of race, religion, or ethnicity.
The Establishment Clause, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion.
To resolve the unprecedented educational crisis in public schools in Cleveland, the State of Ohio enacted its Pilot Project Scholarship Program. The program provides tuition aid for students to attend a participating public or private school of their parents’ choosing and also tutorial aid for those who choose to go to public school. Any public or private school may participate and the participating school must agree not to discriminate on the basis of race, religion, or ethnicity. There is no dispute that the program challenged was enacted for the valid secular purpose of providing educational assistance to poor children in a failing public school system.
Does the Ohio program have the forbidden “effect” of advancing or inhibiting religion?
No, Ohio’s Pilot Project Scholarship Program does not advance or inhibit religion and thus it does not violate the Establishment Clause of the First Amendment. Because the government aid program is neutral with respect to religion, and provides assistance to directly to a broad class of citizens, who direct government aid to religious schools as a result of their own, genuine private choice, the program is not subject to the challenge under the Establishment Clause.
There is the risk that publicly financed programs pose in terms of religiously based social conflict. The history shows that efforts to obtain equivalent funding for private education of children whose parents did not hold popular religious beliefs only exacerbated religious strife. For instance, it is difficult to imagine how state officials will adjudicate claims that one religion is advocating civil disobedience in response to unjust laws? This will lead to a result where any major funding program for primary religious education will require criteria. Efforts to respond to these issues will seriously entangle church and state, and promote division among religious groups.
Justice O’Connor and Thomas
Justice O’Connor: As opposed to the majority’s notion is neutrality, government aid must be made available to both religious and secular beneficiaries on a nondiscriminatory basis. It was incorrectly said that nonreligious schools have failed to provide Cleveland parents reasonable alternatives to religious schools. Nonreligious schools only need be adequate substitutes for religious schools in the eyes of the parents, and need not be superior to religious schools in every respect.
Justice Thomas: While the purpose of public school was to promote democracy and a more egalitarian culture, failing urban public schools disproportionately affect minority children most in need of educational opportunity. Such failure perpetuates a vicious cycle of poverty, criminality, and alienation and if society cannot end racial discrimination, it can support minorities with the education to defend themselves from some of the discrimination’s effects.
This Court in Mueller v. Allen held that where a program is a private choice, and there is no evidence that the State deliberately skewed incentives toward religious schools, that is sufficient for the program to survive the strict scrutiny under the Establishment Clause. The Ohio’s program is generally made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. The program confers educational assistance directly to a broad class of citizens defined without reference to religion and permits any school to participate regardless of their religious status. The only preference in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools. Because there are no financial incentives that skew the program toward religious schools, the program is valid under the Establishment Clause.