University of Miami School of Law
Center for Ethics & Public Service
Education Group – Miami Senior High
Intern Allison Gillus
September 29, 2004
Freedom of Religion – School Vouchers.
Sean attends one of the poorest schools in the county. Sean’s parents are very concerned.
Schools all over the county are overcrowded and public schools are suffering. To combat this
problem the Miami-Dade County Government and the School Board have decided to hold a
meeting to discuss implementing a voucher plan. Though Sean’s parents are disappointed with
the quality of education their child is receiving, they have no interest in sending Sean to private
school. They believe the county should attempt to improve the public schools using the money
they would be giving out through vouchers. Sean’s parents think the voucher system is simply a
thinly veiled attempt to funnel money from the government to religious institutions. They point
out that more than 2/3 of all private schools in the county are affiliated with a church, and
therefore most students who use the vouchers will be going to a religious school.
Paul attends the same school as Sean. Paul’s parents are in support of the vouchers. They
are concerned that their son is not getting a good education at his current school and they want
Paul to receive the best education possible. It would take years for the county to improve its
public school system, if it ever did. The voucher system would allow Paul to attend a better
school during the upcoming school year. They believe that the voucher system does not violate
freedom of religion because the parent is free to choose where they use the voucher. They don’t
have to use the voucher at a religious school and in fact don’t have to use the voucher at all.
Dade would be the first county in Florida to have a voucher system. The plan would
allow students who attend the county’s worst schools to be given a tuition check that they may
choose to use at a private school of their choice. If they choose to stay at the public school, they
receive aid to pay a tutor. The county provides the tuition money as part of the public funds
available each year. In this system, students without the money to pay tuition may still attend a
private or religious school if they so choose. It is the hope of the School Board that many
students will use this opportunity to attend private school. That way those families that choose to
stay at the public school will benefit from smaller class sizes and the school will be able to
provide a better education. At the county meeting, members of the community voiced a concern
that the vouchers would most likely be used at religious schools. The voucher system results in
the county paying money to support religious education. Consequently, there is concern that the
system violates the separation of church and state in the First Amendment.
1. What are some benefits of a school voucher program? What are some disadvantages?
2. The United States Supreme Court has decided that this system of school vouchers does
not violate the First Amendment, do you agree?
3. Why is it important that there be a separation of church and state?
4. Should use of the vouchers be limited to schools with no religious affiliation? Would that
be a violation of the separation of church and state as well?
5. Assume this same system was attempted in a small town where all of the private schools
in the county were religious schools, would your opinion change?
6. Would you rather see money go towards school vouchers, allowing a student to attend a
private school, or do you think the money should be applied towards improving the
7. Tutors are far cheaper than private school tuition. Therefore students who choose to
remain in public schools get less money than the students who go to private school. Is
Mayor of Dade County
Superintendent of Miami-Dade County School Board
Bush v. Holmes, 29 Fla. L. Weekly D1877 (Fla. 1st DCA 2004).
Freedom from Religion Foundation, Inc. v. McCallum, 324 F.3d 880 (7th Cir. 2003).
Joshua Edelstein, Zelman, Davey, And The Case For Mandatory Government Funding For
Religious Education, 46 Ariz. L. Rev. 151 (2004).
Rita-Anne O'Neill, School Voucher Debate After Zelman: Can States Be Compelled To Fund
Sectarian Schools Under The Federal Constitution?, 44 B.C. L. Rev. 1397 (2003).
Keith Werhan, Navigating The New Neutrality: School Vouchers, The Pledge, And The Limits Of
A Purposive Establishment Clause, 41 Brandeis L.J. 603 (2003).
Florida’s Voucher Program
The Florida Opportunity Scholarships Program (OSP) allows parents whose children are
assigned to a failing school to choose between a higher performing public school or applying
state generated funding toward private school tuition. These private schools receive payment
from the state for tuition and fees. For the students who choose to remain at a failing school
throughout the year, additional resources and assistance have been provided by the state and the
Florida Department of Education. A failing school is defined as a school that received a failing
grade in the previous year as well as one other failing grade in the three previous years. Since the
programs implementation in 1999 it has faced several challenges in Florida courts. Bush v.
Holmes is the most recent court decision regarding the constitutionality of this program.
Bush v. Holmes, 29 Fla. L. Weekly D1877 (Fla. 1st DCA 2004).
Facts: Parents, teachers, taxpayers, and other individuals brought action for declaratory and
injunctive relief challenging facial constitutionality of state school voucher program, Florida
Opportunity Scholarship Program (OSP). OSP allows a student attending a "failing" public
school to attend a private school, sectarian or non-sectarian, with the financial assistance of the
Holding: Voucher program violates the no-aid provision found in the last sentence of article I,
section 3 of the Florida Constitution because the OSP uses state revenues to aid sectarian
Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002).
State of Ohio established a pilot voucher program in the Cleveland City School District. The
court of appeals found that the program had the “primary effect” of advancing religion in
violation of the Establishment clause. The Supreme Court decided that the program was neutral,
a program of “true private choice.” This voucher system did not violate the Establishment clause
because there were no financial incentives that “skew the program toward religious schools”,
despite the fact that 82% of all private schools in the district are religious schools.
Souter Dissent: This system is not neutral. They system does skew towards benefiting religious
schools because students who choose to stay at the private school may only receive $324 for
tutoring, whereas the religious school can receive up to $2,250 in tuition aid paid by tax dollars.
Therefore, the religious schools benefit more than any other school. Furthermore, the fact that
96% of the vouchers are spent at religious schools indicates that there is a lack of real choice in
private education in the state. Souter worries that there will be school districts where all of the
private schools available are religious schools.
Breyer Dissent: This majority opinion adopts an “equal opportunity” rationale. Over the last
fifty years the court has consistently read the establishment clause as insisting upon a greater
separation of church and state.
Sara J. Crisafulli, Zelman V. Simmons-Harris: Is The Supreme Court's Latest Word On
School Voucher Programs Really The Last Word?, 71 Fordham L. Rev. 2227 (2003)
The Supreme Court's decision in Zelman focused predominantly on individual choice and the
neutrality of the aid to conclude that the program did not create an impermissible endorsement of
religion. In upholding the Cleveland voucher program, the Court did not consider that the
program funds went directly to sectarian schools in the form of tuition payments without
restrictions or safeguards to ensure the aid was used for only secular purposes. In this way, the
Zelman decision removed many of the Establishment Clause barriers to state-funded programs
providing aid to sectarian institutions. While the Court's opinion indicates that voucher programs
similar in design to Cleveland's will withstand an Establishment Clause challenge, there is less
certainty about how federal courts will treat programs with fewer educational alternatives. The
Zelman Court emphasized the presence of a "genuine and independent choice" allowing parents
to select a school from a number of secular options as well as from private sectarian schools.
Following Justice O'Connor's definition of genuine choice provided in her concurrence, a federal
court would consider a choice genuine if parents believed that a "reasonable alternative" to
sectarian education existed. If the voucher system gave tuition vouchers for private school and
the only other choice was to stay at the failing public school, then it would be unconstitutional.