[1] On June 27, 2002 the Supreme Court of the United States issued its ruling in Zelman, et. al. v. Simmons-Harris et. al. whereby a sharply divided Court upheld as constitutional a school voucher program that allowed thousands of Cleveland, Ohio students to attend religious schools. Some commentators have called this one of the most important decisions on education and church-state law in over half a century.

[2] In 1996 the State of Ohio established a pilot program designed to provide educational assistance to families with children who reside in the Cleveland City School District. Based upon an income factor, families could qualify for up to $2,250 in vouchers to be used toward tuition at any private school (including religious schools) that qualified, any public school in any district adjacent to the Cleveland district, qualified community schools (schools funded by the State but run by their own school boards and not by local school districts), magnet schools (public schools operated by a local school board that emphasize a particular subject area or teaching method), or for private tutoring.

[3] In 2001, of the approximately 75,000 students in the Cleveland system, nearly 4,500 participated in the program. At one point, 99 percent of students were using vouchers at religious schools. Forty-six of the 50 schools participating in the program last year were religious schools. For the 2001-2002 school year approximately $8.1 million was distributed through vouchers, with $220,410 going to secular schools, $6,622,657 going to Catholic schools, and $1,298,251 going to other religious schools. We represented, on a pro bono basis, two Lutheran school associations that participated in the voucher program and joined with the Cleveland Catholic Diocese, along with several other secular private schools, and were granted Petitioner status to intervene as parties in the case.

[4] Opponents of the voucher program argued that the large percentage of students attending religious schools made it obvious that parents had little choice but to use vouchers in religious schools and that, thereby, the program violated the Constitution by "promoting religion." However, Chief Justice Rehnquist, writing for the majority, which included Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas, indicated that "Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general." It should be noted that all of the public school districts adjacent to the Cleveland school district were eligible to participate in the voucher program but opted not to do so. One can only speculate as to whether their participation would have reduced the number of students participating in religious schools. This fact was not lost on the Court as both Justices Ginsburg and Scalia raised questions at the oral argument as to the efficacy of citing the high participation in religious schools as evidence of a lack of real choice when most eligible public schools opted out of the program.

[5] Key factors which persuaded the Court included the fact that religious schools were only one of several options available under the program, the fact that the decision to send children to religious schools was made by the parents, and the fact that the State of Ohio was not making payments directly to any religious schools. Consequently, as found by the majority, the Ohio program was "entirely neutral with respect to religion."

[6] Opposition to the voucher program was led by such organizations as the Ohio Education Association, the American Civil Liberties Union, and the National Education Association, whose general counsel presented the opposition arguments at the oral hearing conducted on February 20, 2002. The opposition arguments primarily revolved around the theories that the program was in effect discriminatory in that only limited numbers of children could participate, and was thereby not an adequate "fix" for the dilemma, that large sums of money were being diverted from a school system that desperately needed additional funding, and that the primary effect of the program was the promotion of religion, in that the great majority of the funds were ending up in religious schools. Much publicity in the Cleveland media centered on the fear of "proselytizing" young children who were attending a religious school not because of any affinity toward that particular religion but because it was the only school available as a practical matter under the program. Ultimately, this case is a victory of choice for parents of school children in an impoverished and failed school system that at least offers a chance for a better education.

[7] We were pleased to be able to represent the Lutheran voice in this debate. Christian education has always been a strong aspect of the Lutheran heritage. Martin Luther, in his Address to the German Nobility in 1520, wrote on the subject of the importance of Christian education: "But where the Holy Scriptures are not the rule, I advise no one to send his child." This is even more important for us today. At all levels of American society we are reaping the results of trying to raise and educate children without the moral imperatives of a God and religion. Rather than a nation "Under God" we have been trying to become a nation "Devoid of God." Self interest, corruption, and the lack of any meaningful moral ethic, as seen not only in the supposedly less responsible elements of our society but also in the various branches of our government and in the board rooms of some of our largest corporations and financial institutions, has wreaked its havoc on the very fabric of our society. The resultant consequences are self-evident. Religious schools, not just Christian schools, have the opportunity to not only teach and emphasize the importance of morality and faith but can also bring more discipline into the process, in that they are not required to accept and keep students whose parents are not involved in the educational process and students who exhibit continued behavioral problems.

[8] As a nation America needs to learn that concepts such as morality, justice, truth, responsibility, honesty, and integrity cannot be taught successfully in a vacuum. Without the acknowledgment of our sinful nature and the need for a forgiving God to establish a moral code of conduct, we have little chance of changing the direction in which we are heading. Because of the establishment of our Lutheran schools and other religious schools in the Cleveland area and because of this landmark decision by the Supreme Court of the United States thousands of impoverished children in Cleveland (and, hopefully, elsewhere in our nation) now have the opportunity to avail themselves of this kind of education.