The Ohio Pilot Project Scholarship allowed low-income students in failing schools to qualify for a scholarship of up to $2,250 that could be used for local private schools. The scholarships were awarded based on financial need, and—because the number of students applying was much greater than the number of scholarships made available—they were awarded by lottery. Even though the $2,250 scholarship was substantially less than the per student funding for public schools, fifty-six private schools in Cleveland agreed to participate in the program.
Parents chose which schools their children attended. But because forty-six of the fifty-six participating schools were religious, plaintiffs argued that the Constitution prohibited the scholarships from going to them. The federal district court agreed and struck down the scholarship program. The Sixth Circuit Court of Appeals did as well.
The Supreme Court reversed that decision, 5–4, in Zelman v. Simmons-Harris. Chief Justice Rehnquist wrote the majority opinion, upholding the Ohio scholarship program. The Court described the crisis facing the schoolchildren in Ohio in no uncertain terms, pointing to the failure of Cleveland public schools to meet the most basic educational standards. The few students who managed to graduate were often barely literate, while two thirds of students didn’t even make it to their senior year.
The Ohio scholarship program was designed to give a lifeline to those students and to help save the public schools. More than 3700 students participated in the scholarship program, and 60 percent were from families at or below the poverty line.
Nevertheless, the litigation onslaught the Ohio school-choice program faced was based on the notion that the Constitution prohibits even a penny of public money from ever going to a religious school. It’s an odd notion, given the long legacy of scholarship programs allowing university students to choose religious institutions. Pell grants are federal student-aid awards given to low income students to be used at the college of their choice. Nobody seriously contends that students cannot use Pell grants to attend the University of Notre Dame or Brigham Young University, even though those are religious institutions.
Yet somehow, the argument goes, a scholarship that is entirely permissible for an eighteen-year-old college student is suddenly unconstitutional for a seventeen-year-old high-school senior. That’s what the federal district court held, as well as the federal court of appeals. The majority in Zelman rejected that claim, ruling that the Ohio statute was “neutral in all respects towards religion” and “part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district.”
As a matter of constitutional law, an individual parent or student making the choice to attend a religious school and to use scholarship funds to do so is not the government establishing a religion. It is a neutral program allowing individual choice. The Zelman Court concluded that “the program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.”
Justice Clarence Thomas joined the majority opinion in full, but he separately wrote a soaring concurrence. He opened by quoting abolitionist hero Frederick Douglass:
Frederick Douglass once said that “[e]ducation… means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.” Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court’s observation nearly 50 years ago in Brown v. Board of Education, that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” urban children have been forced into a system that continually fails them.
Justice Thomas, having grown up in abject poverty in Pin Point, Georgia, understands firsthand the urgency of school choice as a civil-rights issue. Raised by his grandparents, and against extraordinary obstacles, Justice Thomas poured himself into his academic studies and graduated from Holy Cross University and then Yale Law School.
He is a brilliant jurist and the leading conservative on the Supreme Court today. Few people attract more contempt and derision from the left than do African-American conservatives, and Justice Thomas has faced decades of belittling insults from the press, law school professors, and other hardened “liberals.” Hollywood director Spike Lee was shamefully quoted as saying that Malcolm X would call Justice Thomas “a handkerchief-head, a chicken-and-biscuit-eating Uncle Tom.”
That venom, it seems, is never directed at liberals and rarely even at white conservatives. Justice Scalia, somehow, never had his brilliance questioned; for decades, leftists have wrongly ridiculed Justice Thomas’s intellect. And yet, every term on the Court, he will pick one or two opinions to fundamentally reassess a line of jurisprudence, laying out careful analyses about the extent to which the recent (or not so recent) precedents comport with the text of the Constitution, the original understanding of its meaning, and first principles.
As a person, Justice Thomas is extraordinary. No member of the Court is more beloved by the Court’s janitors, electricians, guards, and support staff with whom he connects on a genuine, personal level. He’s down to earth and real, with a deep, booming laugh—imagine Santa Claus bellowing “ho, ho, ho!”
Two vignettes capture Justice Thomas in person. First, when I was clerking, I brought my college and law school roommate, David Panton, by the Court to meet him. For thirty years, David has been (other than Heidi) my closest friend in the world. He was the best man at our wedding. He’s from Jamaica, was a Rhodes Scholar, and has a doctorate from Oxford. Barack Obama, famously, was the first black president of the Harvard Law Review; David was the second. (Obama, then an unknown community organizer who had graduated a few years earlier, called David to congratulate him after he was elected.) I told Justice Thomas about David, and he wanted to
