Zelman v. Simmons-Harris/Concurrence Thomas
Justice Thomas, concurring.
Frederick Douglass once said that “[e]ducation … means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.”  Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court’s observation nearly 50 years ago in Brown v. Board of Education, that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” 347 U.S. 483, 493 (1954), urban children have been forced into a system that continually fails them. These cases present an example of such failures. Besieged by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emergency when Ohio enacted its scholarship program.
The dissents and respondents wish to invoke the Establishment Clause of the First Amendment, as incorporated through the Fourteenth, to constrain a State’s neutral efforts to provide greater educational opportunity for underprivileged minority students. Today’s decision properly upholds the program as constitutional, and I join it in full.
This Court has often considered whether efforts to provide children with the best educational resources conflict with constitutional limitations. Attempts to provide aid to religious schools or to allow some degree of religious involvement in public schools have generated significant controversy and litigation as States try to navigate the line between the secular and the religious in education. See generally Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U.S. 203, 237 - 238 (1948) (Jackson, J., concurring) (noting that the Constitution does not tell judges “where the secular ends and the sectarian begins in education”). We have recently decided several cases challenging federal aid programs that include religious schools. See, e.g., Mitchell v. Helms, 530 U.S. 793 (2000); Agostini v. Felton, 521 U.S. 203 (1997). To determine whether a federal program survives scrutiny under the Establishment Clause, we have considered whether it has a secular purpose and whether it has the primary effect of advancing or inhibiting religion. See Mitchell, supra, at 807—808. I agree with the Court that Ohio’s program easily passes muster under our stringent test, but, as a matter of first principles, I question whether this test should be applied to the States.
The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion.” On its face, this provision places no limit on the States with regard to religion. The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government.  Whether and how this Clause should constrain state action under the Fourteenth Amendment is a more difficult question.
The Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law. It guarantees citizenship to all individuals born or naturalized in the United States and provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” As Justice Harlan noted, the Fourteenth Amendment “added greatly to the dignity and glory of American citizenship, and to the security of personal liberty.” Plessy v. Ferguson, 163 U.S. 537, 555 (1896) (dissenting opinion). When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty.
Consequently, in the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government. “States, while bound to observe strict neutrality, should be freer to experiment with involvement [in religion]–on a neutral basis–than the Federal Government.” Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 699 (1970) (Harlan, J., concurring). Thus, while the Federal Government may “make no law respecting an establishment of religion,” the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest. By considering the particular religious liberty right alleged to be invaded by a State, federal courts can strike a proper balance between the demands of the Fourteenth Amendment on the one hand and the federalism prerogatives of States on the other. 
Whatever the textual and historical merits of incorporating the Establishment Clause, I can accept that the Fourteenth Amendment protects religious liberty rights.  But I cannot accept its use to oppose neutral programs of school choice through the incorporation of the Establishment Clause. There would be a tragic irony in converting the Fourteenth Amendment’s guarantee of individual liberty into a prohibition on the exercise of educational choice.
The wisdom of allowing States greater latitude in dealing with matters of religion and education can be easily appreciated in this context. Respondents advocate using the Fourteenth Amendment to handcuff the State’s ability to experiment with education. But without education one can hardly exercise the civic, political, and personal freedoms conferred by the Fourteenth Amendment. Faced with a severe educational crisis, the State of Ohio enacted wide-ranging educational reform that allows voluntary participation of private and religious schools in educating poor urban children otherwise condemned to failing public schools. The program does not force any individual to submit to religious indoctrination or education. It simply gives parents a greater choice as to where and in what manner to educate their children.  This is a choice that those with greater means have routinely exercised.
Cleveland parents now have a variety of educational choices. There are traditional public schools, magnet schools, and privately run community schools, in addition to the scholarship program. Currently, 46 of the 56 private schools participating in the scholarship program are church affiliated (35 are Catholic), and 96 percent of students in the program attend religious schools. See App. 281a—286a; 234 F.3d 945, 949 (CA6 2000). Thus, were the Court to disallow the inclusion of religious schools, Cleveland children could use their scholarships at only 10 private schools.
In addition to expanding the reach of the scholarship program, the inclusion of religious schools makes sense given Ohio’s purpose of increasing educational performance and opportunities. Religious schools, like other private schools, achieve far better educational results than their public counterparts. For example, the students at Cleveland’s Catholic schools score significantly higher on Ohio proficiency tests than students at Cleveland public schools. Of Cleveland eighth graders taking the 1999 Ohio proficiency test, 95 percent in Catholic schools passed the reading test, whereas only 57 percent in public schools passed. And 75 percent of Catholic school students passed the math proficiency test, compared to only 22 percent of public school students. See Brief for Petitioners in No. 00—1777, p. 10. But the success of religious and private schools is in the end beside the point, because the State has a constitutional right to experiment with a variety of different programs to promote educational opportunity. That Ohio’s program includes successful schools simply indicates that such reform can in fact provide improved education to underprivileged urban children.
Although one of the purposes of public schools was to promote democracy and a more egalitarian culture,  failing urban public schools disproportionately affect minority children most in need of educational opportunity. At the time of Reconstruction, blacks considered public education “a matter of personal liberation and a necessary function of a free society.” J. Anderson, Education of Blacks in the South, 1860—1935, p. 18 (1988). Today, however, the promise of public school education has failed poor inner-city blacks. While in theory providing education to everyone, the quality of public schools varies significantly across districts. Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs because they provide the greatest educational opportunities for their children in struggling communities.  Opponents of the program raise formalistic concerns about the Establishment Clause but ignore the core purposes of the Fourteenth Amendment.
While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society. As Thomas Sowell noted 30 years ago: “Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities.” Black Education: Myths and Tragedies 228 (1972). The same is true today. An individual’s life prospects increase dramatically with each successfully completed phase of education. For instance, a black high school dropout earns just over $13,500, but with a high school degree the average income is almost $21,000. Blacks with a bachelor’s degree have an average annual income of about $37,500, and $75,500 with a professional degree. See U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 140 (2001) (Table 218). Staying in school and earning a degree generates real and tangible financial benefits, whereas failure to obtain even a high school degree essentially relegates students to a life of poverty and, all too often, of crime.  The failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives. If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination’s effects.
Ten States have enacted some form of publicly funded private school choice as one means of raising the quality of education provided to underprivileged urban children.  These programs address the root of the problem with failing urban public schools that disproportionately affect minority students. Society’s other solution to these educational failures is often to provide racial preferences in higher education. Such preferences, however, run afoul of the Fourteenth Amendment’s prohibition against distinctions based on race. See Plessy, 163 U.S., at 555 (Harlan, J., dissenting). By contrast, school choice programs that involve religious schools appear unconstitutional only to those who would twist the Fourteenth Amendment against itself by expansively incorporating the Establishment Clause. Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in the greatest need.
As Frederick Douglass poignantly noted “no greater benefit can be bestowed upon a long benighted people, than giving to them, as we are here earnestly this day endeavoring to do, the means of an education.” 
^ . The Blessings of Liberty and Education: An Address Delivered in Manassas, Virginia, on 3 September 1894, in 5 The Frederick Douglass Papers 623 (J. Blassingame & J. McKivigan eds. 1992) (hereinafter Douglass Papers).
^ . See, e.g., School Dist. of Abington Township v. Schempp, 374 U.S. 203, 309—310 (1963) (Stewart, J., dissenting) (“[T]he Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments”); see also Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting).
^ . Several Justices have suggested that rights incorporated through the Fourteenth Amendment apply in a different manner to the States than they do to the Federal Government. For instance, Justice Jackson stated, “[t]he inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms.” Beauharnais v. Illinois, 343 U.S. 250, 294 (1952) (dissenting opinion). Justice Harlan noted: “The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many instances, are distinct. And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal.” Roth v. United States, 354 U.S. 476, 503—504 (1957) (dissenting opinion). See also, Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes, J., dissenting).
^ . In particular, these rights inhere in the Free Exercise Clause, which unlike the Establishment Clause protects individual liberties of religious worship. “That the central value embodied in the First Amendment–and, more particularly, in the guarantee of ‘liberty’ contained in the Fourteenth–is the safeguarding of an individual’s right to free exercise of his religion has been consistently recognized.” Schempp, supra, at 312 (Stewart, J., dissenting). See also Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1159 (1991) (“[T]he free exercise clause was paradigmatically about citizen rights, not state rights; it thus invites incorporation. Indeed, this clause was specially concerned with the plight of minority religions, and thus meshes especially well with the minority-rights thrust of the Fourteenth Amendment”); Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L. Rev. 1191, 1206—1207 (1990).
^ . This Court has held that parents have the fundamental liberty to choose how and in what manner to educate their children. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). But see Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring in judgment).
^ . See, e.g., N. Edwards, School in the American Social Order: The Dynamics of American Education 360—362 (1947).
^ . Minority and low-income parents express the greatest support for parental choice and are most interested in placing their children in private schools. “[T]he appeal of private schools is especially strong among parents who are low in income, minority, and live in low-performing districts: precisely the parents who are the most disadvantaged under the current system.” T. Moe, Schools, Vouchers, and the American Public 164 (2001). Nearly three-fourths of all public school parents with an annual income less than $20,000 support vouchers, compared to 57 percent of public school parents with an annual income of over $60,000. See id., at 214 (Table 7—3). In addition, 75 percent of black public school parents support vouchers, as do 71 percent of Hispanic public school parents. Ibid.
^ . In 1997, approximately 68 percent of prisoners in state correctional institutions did not have a high school degree. See U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics—2000, p. 519 (Table 6.38).
^ . These programs include tax credits for such schooling. In addition, 37 States have some type of charter school law. See School Choice 2001: What’s Happening in the States xxv (R. Moffitt, J. Garrett, & J. Smith eds. 2001) (Table 1).
^ . Douglass Papers 623.