Held. (Rehnquist, C.J.) No. A school voucher program which allows parents to send their children to a private school is not in violation of the Establishment Clause, where the vast majority of participating private schools are affiliated to religious groups. The purpose of the program in this case is secular, without a doubt. It is meant to assist poor children in a failing public school to complete their education. The issue then is whether the program advances or inhibits religion. The Court’s ruling in Mueller v. Allen, 463 U.S. 388 (1983) and following related cases shows that a government aid project cannot be easily defeated with reference to the Establishment Clause provided it gives no deference to religion, and makes aid available to a class of citizens who by their own voluntary and independent choice channel that aid to religious schools. Such is the case in this program which is therefore supported by the constitution. It favors no religion nor even religion in the abstract, it is part of a state plan to make education available to children in a school district where such opportunity is largely absent, is part of a more general and multi-pronged action plan, and shows no discrimination towards the recipients of the educational aid except on financial grounds, in that poor families receive greater preference for admission and more aid. It allows all schools irrespective of religious affiliation to participate, including public schools in the adjacent district. It not only does not incentivize private schools, but in fact provides disincentives. A participating private school gets only half the aid a community school receives, and only a third of that given to magnet schools. Adjacent public schools get two to three times this amount. Families which choose to send their children to private schools too have disincentives in that they have to contribute towards the school tuition, whereas in public, community or magnet schools tuition is completely free. This is therefore in no sense a government endorsement of religion. Another important point is that the program gives ample opportunity for parents to choose secular educational options if preferred, among the various alternatives offered such as continuing to send their child to the same public school, using tutorial aid paid for by the program in public school, obtaining a scholarship to attend a religious private school, use the same scholarship to attend a non-religious school, enroll in a community college or in a magnet school. Thus the Establishment Clause is not violated in the sense that Ohio in no sense promotes or coerces the parents to send children to religious schools. The other argument of the taxpayers that 96 percent of the scholarship recipients were in religious schools, which violates the constitution, is already addressed in Mueller. Just because most private schools in a certain area or at a certain time are religious, or why this is so, or most scholarship recipients choose to enroll at a religious school is not the touchstone to decide on the constitutionality of a school district program. Thus the Ohio program is neutral to religion, uses only financial need and geographical location with respect to a particular school district as criteria, and enables true and full choice to the beneficiaries of such aid as to the options available to utilize the aid. It is thus a program which protects true private choice. The verdict is reversed.
Dissent. (Souter, J .)The voucher program uses tax money to pay for religious instruction as well as for secular instruction. In the case of Everson v. Board of Education, 330 U.S. 1 (1947) which is a still standing verdict, the Court specified that no tax is allowed to be used to support a religious activity or institution. In this case it is clear that a large proportion of the money under the voucher program will be spent on religious schools in amounts which cover almost the whole of the tuition. This money is thus spent to give eligible students under the program religious instruction in addition to secular teaching, in schools which exist for the purpose of teaching religion. Thus tax money is spent in teaching religion. The Court cannot ignore the verdict in Everson without ignoring the significance of neutrality and private choice. If the history of the Clause is considered, this opinion creates a new type of thinking regarding this statute which holds the real nature of government aid to be insignificant as regards its constitutional nature, and treats the issues of neutrality in making aid available and private choice in using that aid as merely formalities. Thus the conclusion would be that the majority opinion has mostly disposed of the Establishment Clause as regards educational aid, as non-applicable in reality, though Everson remains the test of soundness in this aspect.
Concurrence. (O’Connor, J.) Here the program makes no distinction between religious and non-religious schools. Both are reasonable educational alternatives in the program. Many of the beneficiaries do in fact use community, magnet or non-religious private schools. Since true private choice is available, the program does not violate the Establishment Clause.
(Thomas, J.) The protection of religious liberty using the Fourth Amendment is legitimate, but to use the Establishment Clause to prevent the operation of a perfectly neutral program concerning school choice is not. Education is a necessity to take hold of the protection afforded by the Fourteenth Amendment. Thus, the importance of the program in providing educational opportunity to a wide range of deprived minority children is in keeping with the Establishment Clause.
The traditional stand of the Court has been that a law is neutral with respect to its primary effect if the religious consequence is non-immediate, incidental and indirect. The demography of the school district encouraged enrollment in religious schools under a program of this design, and so the religious impact was neither a byproduct nor remote, so the dissent suggests. There are unanswered questions such as whether there is an existing provision in the constitution to prevent discrimination by schools receiving aid, by including such conditions in the voucher programs, and whether the state laws which specifically prevent the use of aid for religious schools are themselves violations of the constitution.