School Choice Litigation After Zelman and Locke

Abstract

In the past 2 years, the United States Supreme Court has decided two important cases that will bear directly on legislation and litigation involving school choice programs that provide financial aid to parents of children attending religious schools. Those cases are Zelman v. Simmons-Harris (2002) and Locke v. Davey (2004). The reasoning in Zelman, along with the litigation in the lower courts leading up to that decision, provide useful insights that should prove helpful in drafting school choice legislation and successfully defending it in court when challenged. The decision in Locke may have implications for litigation involving challenges to state laws and constitutional provisions limiting aid to religious institutions and to students attending religious schools. Both cases are discussed below.