From the desk of Bob Malkas: Zelman v. Simmons-Harris – school choice


Local Voices

Bob Malkas

Recently, I attended a 50+2-year reunion organized by the ladies who graduated from Mother of Sorrows high school in 1970. The plus two was because of COVID.

In what seems to have been another life I was a teacher and ultimately the assistant principal of that school. I was delighted by the experience I had at the reunion. What MOS produced was a credit to the then educational system of our nation because parents could choose to send their children to a parochial school understanding that they would still have to pay tuition without any government help. Efforts to remedy the inequity were dismissed. I know. I was there, and I tried.

I can say now that I was lucky enough to have been a small part of the MOS experience.

During the afternoon I heard stories of children, successful careers, and hopes for the future in a troubled nation. We sang the school song and thumbed through old year books remembering past experiences and the classmates who were not able to attend.

On my way home I lamented the children of today will never be able to experience such unity and camaraderie, and I asked myself why, and as I am prone to do set out to find answers. That is when I discovered the U.S. Supreme Court decision Zelman v. Simmons-Harris.

In Ohio, Cleveland public schools were performing badly, and to resolve the issue that state put in effect a voucher plan under which parents could opt to enroll their children in private schools taking part in the program.

Since a great majority of private schools were affiliated with one or another religious groups some Ohio taxpayers filed an action against the program pleading violation of the Establishment Clause of the U.S. Constitution, claiming it would favor one faith on another.

No one ever asked how children from depressed areas would be negatively affected if the program was scrapped.

When Ohio started the pilot project scholarship program which aimed at families forced to send their children to under-developing schools a choice would be offered to them — to attend another public or private school — the money would follow the child.

Because this plan was objected to by a few Ohio taxpayers an injunction was lodged against the program on the grounds the state was encouraging religious instruction. The district court granted a summary judgement to the objectors and the verdict was affirmed by the court of appeals. The U.S. Supreme Court agreed to accept the case to decide on its constitutionality.

The issue that had to be decided: Is a school voucher program, which allows parents to send their children to a private school, a violation of the Establishment Clause of the U.S. Constitution?

The Court said no by a 5-4 vote.

Judge Rehnquist wrote the majority opinion: No. A school program which allows parents to send their children to a private school is not a violation of the Establishment Clause.

Judge Souter wrote the dissent: The voucher program uses tax money to pay for religious instruction as well as for institution as well as for secular instruction.

Justice Thomas wrote a concurrence: The protection of religious liberty using the Fourth Amendment is legitimate, but to use the Establishment Clause to prevent the operation of a perfectly neutral program concerning school choice is not.

It is interesting to see how one vote in a U.S Supreme Court decision saved a program that would have deprived minority children from opportunities to improve their educational standards.

I enjoy the reactions I get from my articles, and would like Lansing Journal readers to respond. Picture yourself as one of the Justices who heard the case and decide how you would have voted.

Local Voices is our version of “Letters to the Editor.” The opinions posted here are those of the writers, and posting them does not indicate endorsement by The Lansing Journal. We welcome input from fellow residents who have thoughtful things to say about topics that are important to our community. Send your submissions to The Lansing Journal with “Voices” in the subject line.



  1. Hi Bob, this ruling helped more White children than minorities in Ohio. Actually, more White children across the US looking at our population. I do agree with the ruling as well. Nice article!

Comments are closed.