Zelman v. Simmons-Harris, 536 U.S. 639, 32 (2002)

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670

ZELMAN v. SIMMONS-HARRIS

O'Connor, J., concurring

How else could the Court have upheld a state program to provide students transportation to public and religious schools alike? What the Court clarifies in these cases is that the Establishment Clause also requires that state aid flowing to religious organizations through the hands of beneficiaries must do so only at the direction of those beneficiaries. Such a refinement of the Lemon test surely does not betray Everson.

III

There is little question in my mind that the Cleveland voucher program is neutral as between religious schools and nonreligious schools. See ante, at 653-654. Justice Souter rejects the Court's notion of neutrality, proposing that the neutrality of a program should be gauged not by the opportunities it presents but rather by its effects. In particular, a "neutrality test . . . [should] focus on a category of aid that may be directed to religious as well as secular schools, and ask whether the scheme favors a religious direction." Post, at 697 (dissenting opinion). Justice Souter doubts that the Cleveland program is neutral under this view. He surmises that the cap on tuition that voucher schools may charge low-income students encourages these students to attend religious rather than nonreligious private voucher schools. See post, at 704-705. But Justice Souter's notion of neutrality is inconsistent with that in our case law. As we put it in Agostini, government aid must be "made available to both religious and secular beneficiaries on a non-discriminatory basis." 521 U. S., at 231.

I do not agree that the nonreligious schools have failed to provide Cleveland parents reasonable alternatives to religious schools in the voucher program. For nonreligious schools to qualify as genuine options for parents, they need not be superior to religious schools in every respect. They need only be adequate substitutes for religious schools in the eyes of parents. The District Court record demonstrates that nonreligious schools were able to compete effectively

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