True Private Choice: A Practical Guide to School Choice after Zelman v. Simmons-Harris. Policy Analysis.

In 2002, the Supreme court upheld an Ohio school choice program designed to help children leave Cleveland's failing public schools. This paper explains the history of the Cleveland program upheld in Zelman v. Simmons-Harris, describing the rules that the Supreme Court established for school choice. It includes examples and strategy to help proponents of school choice craft constitutional school choice programs that opponents cannot effectively challenge. The Supreme Court adopted five basic criteria for a program of true private choice in Zelman: any government must have a secular purpose to survive Establishment Clause challenge; a school choice program must offer only indirect aid to religious schools; benefits of a school choice program must be made available to a broad class of beneficiaries; a program must not be set up in ways that favor religious over secular options; and states must ensure that parents have adequate nonreligious educational options. While school choice rules under the federal Constitution are now fairly clear, many state lawmakers still face uncertainty about whether choice programs will be upheld under their state constitutions. Lawsuits now challenging restrictive state constitutions will signal how other states' constitutional provisions will likely be treated. (SM)