Zelman v. Simmons-Harris, 536 U.S. 639, 18 (2002)

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Opinion of the Court

ing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.

Justice Souter speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. Post, at 703-705 (dissenting opinion).4 But Cleveland's preponderance of religiously af-4 Justice Souter appears to base this claim on the unfounded assumption that capping the amount of tuition charged to low-income students (at $2,500) favors participation by religious schools. Post, at 704-705 (dissenting opinion). But elsewhere he claims that the program spends too much money on private schools and chides the state legislature for even proposing to raise the scholarship amount for low-income recipients. Post, at 697-698, 710-711, 714-715. His assumption also finds no support in the record, which shows that nonreligious private schools operating in Cleveland also seek and receive substantial third-party contributions. App. 194a-195a; App. to Pet. for Cert. in No. 00-1777, p. 119a. Indeed, the actual operation of the program refutes Justice Souter's argument that few but religious schools can afford to participate: Ten secular private schools operated within the Cleveland City School District when the program was adopted. Reply Brief for Petitioners in No. 00-1777, p. 4 (citing Ohio Educational Directory, 1999-2000 School Year, Alphabetic List of Nonpublic Schools, Ohio Dept. of Ed.). All 10 chose to participate in the program and have continued to participate to this day. App. 281a- 286a. And while no religious schools have been created in response to the program, several nonreligious schools have been created, id., at 144a-148a, 224a-225a, in spite of the fact that a principal barrier to entry of new private schools is the uncertainty caused by protracted litigation which has plagued the program since its inception, post, at 672 (O'Connor, J., concurring) (citing App. 225a, 227a). See also 234 F. 3d 945, 970 (CA6 2000) (Ryan, J., concurring in part and dissenting in part) ("There is not a scintilla of evidence in this case that any school, public or private, has been discouraged from participating in the school voucher program because it cannot 'afford' to do so"). Similarly mistaken is Justice Souter's reliance on the low enrollment of scholarship students in nonreligious schools

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