Zelman v. Simmons-Harris, 536 U.S. 639, 22 (2002)

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660

ZELMAN v. SIMMONS-HARRIS

Opinion of the Court

as scholarship students remained enrolled as community school students, id., at 145a-146a, thus demonstrating the arbitrariness of counting one type of school but not the other to assess primary effect, e. g., Ohio Rev. Code Ann. 3314.11 (Anderson 1999) (establishing a single "office of school options" to "provide services that facilitate the management of the community schools program and the pilot project scholarship program"). In spite of repeated questioning from the Court at oral argument, respondents offered no convincing justification for their approach, which relies entirely on such arbitrary classifications. Tr. of Oral Arg. 52-60.6

schools. Brief for Wisconsin 11-12. Similarly, the number of program students attending nonreligious private schools increased from 2,048 to 3,582; these students now represent 33% of all program students. Id., at 12-13. There are currently 34 nonreligious private schools participating in the Milwaukee program, a nearly five-fold increase from the 7 nonreligious schools that participated when the program began in 1990. See App. 218a; Brief for Wisconsin 12. And the total number of students enrolled in nonreligious schools has grown from 337 when the program began to 3,582 in the most recent school year. See App. 218a, 234a-236a; Brief for Wisconsin 12-13. These numbers further demonstrate the wisdom of our refusal in Mueller v. Allen, 463 U. S., at 401, to make the constitutionality of such a program depend on "annual reports reciting the extent to which various classes of private citizens claimed benefits under the law."

6 Justice Souter and Justice Stevens claim that community schools and magnet schools are separate and distinct from program schools, simply because the program itself does not include community and magnet school options. Post, at 698-701 (Souter, J., dissenting); post, at 685 (Stevens, J., dissenting). But none of the dissenting opinions explain how there is any perceptible difference between scholarship schools, community schools, or magnet schools from the perspective of Cleveland parents looking to choose the best educational option for their school-age children. Parents who choose a program school in fact receive from the State precisely what parents who choose a community or magnet school receive— the opportunity to send their children largely at state expense to schools they prefer to their local public school. See, e. g., App. 147a, 168a-169a; App. in Nos. 00-3055, etc. (CA6), pp. 1635-1645 and 1657-1673 (Cleveland parents who enroll their children in schools other than local public schools typically explore all state-funded options before choosing an alternative school).

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