Skip to main content

Secondary navigation:

Boisi Center for Religion and American Public Life

Constitutional Cases

Boisi Center for Religion and American Public Life

School Choice Constitutional Cases

First Amendment Jurisprudence
Many of the landmark decisions in first amendment law relevant to questions of school choice are available on-line. Below are links to and brief synopses of US Supreme Court decisions and current State Supreme Court and Federal Appellate decisions. Additionally there are several free legal research sites (including links to the Supreme Court's web site) which allow one to search for Federal and State decisions.

US Supreme Court Decisions

Pierce v. Society of Sisters
268 U.S. 510 (1925)
Decision overturned a 1922 Oregon nativist initiative requiring all children between ages 8-16 to attend public schools. Established the right of nonpublic schools to exist and the right of parents to have ultimate say in childrens' education, but did not address the issue of funding.

Everson v. Board of Education of the Township of Ewing
330 U.S. 1 (1947)
Decision involved a New Jersey program that reimbursed parochial schools parents for school transportation costs. First high court decision to incorporate the Establishment Clause under the Due Process provision of the 14th Amendment, thus applying it to the states and not just the federal government. Although Justice Black, invoking a Jeffersonian phrase, called for a "wall of separation between church and state," the decision established the crucial distinction between aid provided directly to religious schools (prohibited under the 1st Amendment) and that provided to children or their parents to be used according to their own choice (allowed).

Lemon v. Kurtzman
403 U.S. 602 (1971)
Decision which ruled against a program that would have supplemented the salary of parochial school teachers who taught secular subjects. Established three criteria (the "Lemon test") for reviewing 1st amendment cases: It proscribed government action that (1) has no "secular purpose," (2) has a "primary effect" of advancing or inhibiting religion, or (3) fosters "excessive entanglement" between church and state.

Committee for Public Education and Religious Liberty (CPERL) v. Nyquist
413 U.S. 756 (1973)
Decision invalidated a New York law providing maintenance and repair grants for nonpublic schools, tuition allotments for poor children, and tax relief for parents on the grounds that such aid was provided directly to schools rather than through parents. (The next day the court handed down the decision Sloan v. Lemon, 413 U.S. 825 (1973), which overturned a partial tuition plan in Pennsylvania on very similar grounds, because it had the "impermissible effect of advancing religion.")

Levitt v. CPERL
413 U.S. 472 (1973)
Decision invalidated a New York state law which reimbursed parochial schools for expenses they incurred administering tests that the state itself had required.

CPERL v. Regan
444 U.S. 646 (1980)
Decision upheld New York statute which reimbursed parochial schools for expenses they incurred administrating tests that the state itself had required on the grounds that "the new statute, unlike the earlier version, provided a means by which state funds are audited, thus ensuring that only the actual costs incurred in providing the covered secular services are reimbursed out of state funds."

Mueller v. Allen
463 U.S. 388 (1983)
Decision involving a Minnesota tax deduction plan for expenses incurred by parents for tuition and other educational expenses like textbooks and transportation. Unlike the program struck down by Nyquist (1973)--where benefits were denied to public school parents--the Minnesota plan which was ruled constitutional made benefits available to all parents. Landmark school choice decision revived the Everson (1947) decision's distinction between direct aid to religious schools and indirect aid to children or parents.

Aguilar v. Felton
473 U.S. 402 (1985)
Decision held that a New York City law which paid the salaries of public school employees who teach in parochial schools to provide remedial education and counseling was unconstitutional because it violated the Establishment Clause on the "Lemon test" grounds that "the program here would, in any event, inevitably result in the excessive entanglement of church and state." (Found to be "no longer good law" by Agostini v. Felton (1997), discussed below.)

Witters v. Washington Department of Social Services
474 U.S. 481 (1986)
Unanimous decision approving the use of public scholarship in the case of a Washington state petitioner, suffering from a progressive eye condition, who applied to the Washington Commission for the Blind for vocational rehabilitation assistance pursuant to a Washington statute, but at the time was attending a private Christian college seeking to become a pastor, missionary, or youth director. A concurring opinion by Justice Powell outlined three criteria concerning aid to religion schools and students: In order to survive constitutional scrutiny, the following such a program must meet three conditions, that (1) it is neutral concerning particular religion or religion in general, (2) any assistance equally available to public and private students or parents, and (3) any aid to sectarian institution is the result of private decision of parents.

Westside Community Board of Education v. Mergens
496 U.S. 226 (1990)
Decision affirmed Court of Appeals ruling that a public secondary school that received federal financial assistance under the Equal Access Act (which prohibits public secondary schools that receive federal assistance and that maintain a "limited open forum" from denying "equal access" to students who wish to meet within the forum on the basis of the "religious, political, philosophical, or other content" of the speech at such meetings) may not bar student religious clubs from using facilities for after-school activities and that the Act itself did not violate the Establishment Clause.

Lamb's Chapel v. Center Moriches Union Free School District
508 U.S. 385 (1993)
Decision held that public-school districts may not deny adult church groups after-hours access to facilities if they are available to other group in the case of a New York law which prohibited the use of facilities for after-hours activities for any religious purpose. The petitioners, an evangelical church and its pastor which sought to use the facilities for a religious-oriented film series on family values and childrearing, won on the claim that denying them access to school premises to exhibit the film series violated the Freedom of Speech Clause.

Zobrest v. Catalina Foothills School District
509 U.S. 1 (1993)
Decision held that a school district does not violate the Establishment Clause by furnishing sign-language interpreter to a catholic high school student under a federally funded program. Decision was made on the grounds, taken from Mueller v. Allen (1983), that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit."

Agostini v. Felton
521 U.S. 203 (1997)
Decision overturned the Aguilar decision (1985) on the grounds that, given the positions established in Witters (1986) and Zobrest (1993), the New York City law did not in fact violate the "Lemon test" criterion of "excessive establishment of church and state."

Mitchell v. Helms
98-1648 (2000)
Decision held that a federal program, Chapter 2 of the Education Consolidation and Improvement Act of 1981 which channels federal funds via state educational agencies to local educational agencies for educational materials and equipment to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs, as applied in Jefferson Parish Louisiana (where 30% of such funds were allocated to private schools, most of which were Catholic), is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated.

Good News Club v. Milford Central School
99-2036 (2001)
Decision held that that a New York public school district may not bar extracurricular religious clubs from elementary schools if secular groups can use the facilities on the grounds that exclusion of such clubs violates their free speech rights and that allowing such meetings does not violate the Establishment Clause.

(Summaries of several U.S. Supreme Court decisions are based on "School choice and American Constitutionalism," by Joseph P. Viteritti. For extended discussion, see his Choosing Equality: School Choice, the Constitution, and Civil Society (Brookings Institution Press, 1999), pp. 129-43.)


State Court and Federal Appellate Court Decisions

Jackson v. Benson
578 N.W. 2d 602 (Wisc. 1998)
Wisconsin Supreme Court decision held that a program which allows low-income children to use a share of their public school funds as full payment of tuition in participating private religious or nonsectarian schools was constitutional and lifted an injunction against the program's expansion. The U.S. Supreme Court declined to review the decision.

Kotterman v. Killian
193 Ariz. 273, 972 P.2d 606 (Ariz. 1999)
Arizona Supreme Court ruled that a State law allowing state tax credit of $500 for donation to school tuition organizations, including religiously affiliated school tuition organizations, does not violate federal nonestablishment norms. The U.S. Supreme Court declined to review the decision.

Bagley v. Raymond School Dept.
728 A.2d 127 (Maine 1999)
Maine Supreme Court ruled that a program which provided private or public school tuition for children in rural school districts that do not have their own public schools--but which expressly excluded religious schools--did not violate the 1st Amendment guarantee of free exercise of religion and the 14th Amendment guarantee of equal protection. The state trial court ruled in favor of the state as did the Maine Supreme Court on April 23, 1999. In May 1999, the First Circuit Court of Appeals rejected a similar challenge to Maine's exclusion of religious schools brought in federal court by the American Center for Law and Justice. On October 12, 1999, the U.S. Supreme Court declined to review these decisions.

Chittenden Town School Dist. v. Vermont Dept. of Educ.
738 A.2d 539 (Vermont 1999)
Vermont Supreme Court ruled that a program (similar to that in Maine) which has provided tuition for children in certain rural school districts that don't have their own public schools, allowing them to attend public schools in other districts or private schools, could not include religious schools on the grounds that providing tuition assistance for religious school parents would violate the Vermont Constitution's religion clause. The Court did not decide whether such payments would be inconsistent with the First Amendment. In the fall of 1999, the United States Supreme Court declined to take up the question of whether the Vermont Supreme Court's decision violated parents' First Amendment rights under the free exercise clause.

Bush v. Holmes
00-1121 (Fla. Dist Ct. App., 1st Dist. 2000)
Florida appellate decision overturning Leon County circuit court ruling that the state's school voucher program (Opportunity Scholarship Program or OSP) facially violated article IX, section 1 of the Florida Constitution because it provides for state payment of tuition for children to attend private schools. The appellate court rejected the plaintiffs' argument that article IX, section 1 restricts the state to providing education only through a "system of free public schools." It found that nothing in article IX, section 1 clearly prohibits the state legislature from permitting the use of state funds for private school education where it found such use necessary. It instead concluded that OSP advanced the purpose of article IX, section 1 because OSP provides students at low performing schools with the opportunity to obtain the type of "high-quality education" mandated in article IX, section 1 by making state funds available to students for private school tuition.

Simmons-Harris v. Zelman
2000 FED App. 0411P (6th Cir.)
On September 25, 2001, the Supreme Court granted certiorari and consolidated three cases (Zelman v. Simmons-Harris, Hanna Perkins School, et al. v. Simmons-Harris, et al., and Taylor, Senel, et al. v. Simmons-Harris, et. al) arising from the establishment of the Ohio Pilot Project Scholarship program in 1995 in Cleveland, Ohio. The scholarship program provided tuition vouchers (paying up to $2,250) to the parents of students in K-8 for use at participating schools, whether public or private. No public schools elected to participate in the program, and of the 56 private schools that participated in 1999-2000, 46 were church affiliated. The program was originally challenged in 1995 by Doris Simmons-Harris, the mother of a child enrolled in the Cleveland district, challenging the program under Ohio law and under the Establishment of Religion Clause of the US Constitution. Simmons-Harris' original challenge was rejected in July 1996, but a state appeals court found the program unconstitutional in spring of 1997. In May of 1999, the Ohio Supreme Court found the program constitutional, but in violation of Ohio's "single subject" law because it had been enacted as a part of a larger budget bill. In response, the Ohio legislature re-enacted the program to meet the court's objections.

In July 1999, Simmons-Harris filed suit in federal court, and the U.S. District Court found the scholarship program in violation of the Establishment Clause. The decision finding the program unconstitutional was upheld in a 2-1 decision by the 6th Circuit Court of Appeals in December 2000 on the grounds that in a similar case, the 1973 decision Committee for Public Education v. Nyquist, the Supreme Court had struck down a tuition reimbursement program in New York under the Establishment Clause. The court will hear oral arguments on the case in the beginning of 2002.

Legal Research Sites

Find Law
Commercial web portal (supported by banner advertisements) focused on law and government which provides access to a online library of legal resources for use by legal professionals, consumers and small businesses. Portal includes many resources including an exhaustive annotations on the first amendment and resources for searching US Federal and State constitutional cases and legal codes.

Legal Information Institute
Noncommercial site for accessing US Supreme Court decisions on-line, operated by the Cornell University Law School, which allows one to search all court decisions from 1990 to present and several hundred historic pre-1990 decisions, organized alphabetically.

The United State Supreme Court
Official site of the Court, which includes links to the current docket, oral arguments, and court opinions, among other things. Most of the various documents can be downloaded in PDF files.