The Grand Finale is Just the Beginning: School Choice and the Coming Battle over Blaine Amendments

By Eric W. Treene
March 29, 2002

The oral arguments in the Cleveland school choice case, Zelman v. Simmons-Harris, held on February 20, left choice supporters publicly encouraged and privately ebullient. After years of nudging the Supreme Court toward acceptance of the idea that the genuine and independent choices of parents to direct public aid toward private education do not “establish” religion, and years of being tempted by coquettish signals from the Court in Rosenberger, Agostini, and most recently in both the plurality and the concurring opinions in Mitchell v. Helms, school choice activists now can barely contain themselves. While none yet dares declare victory, the bench appeared so skeptical of NEA General Counsel Robert Chanin’s insistence that the program was jury-rigged to aid religion, and there was such a general sense in the air of the passing of an old order and the ascendancy of an idea whose time has come, that there is now more talk of whether the decision will be 5-4 or 6-3, and how fact-specific the Court’s decision will be, than there is of whether school choice will be upheld.