The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or non-religious provider, the Establishment Clause is not offended.

If taken to its logical limits, the rule of law announced in Zelman appears competent to sustain any of a number of public programs in which the government joins with private organizations, both secular and non-secular, to provide secular services. For example, in accordance with Zelman, the government might be able to make available to needy recipients vouchers for "substance abuse group therapy," which could be directed toward both public and private programs, including such religiously based programs as Alcoholics Anonymous. To say that such programs would continue to implicate the Establishment Clause would be to understate the case, but Zelman appears to impose a burden upon persons challenging such programs that they have not historically been called upon to bear.

Arguably, this is all for the good, because several of the animating purposes behind the Speech, Press, and Exercise Clauses of the First Amendment support the constitutionality of educational and charitable choice plans. Most importantly, such plans facilitate a plurality of approaches to thinking, learning, and individual maturation.

Document Type


Publication Date

Fall 2002


Notes/Citation Information

Paul E. Salamanca, Choice Programs and Market-Based Separationism, 50 Buff. L. Rev. 931 (2002).



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