In 1999, the Ohio Legislature enacted a voucher program to pay tuition costs for children in Cleveland to attend private schools, including sectarian ones. AU and its allies immediately challenged the new program in federal court, asserting that it violates the federal Establishment Clause.
In December 1999, the federal district court found the program unconstitutional. In December 2000, the Sixth Circuit upheld the lower court decision (2-1), reaffirming that the program violates the Establishment Clause.
After the Sixth Circuit denied the defendants’ petition for rehearing en banc, the defendants filed, and the U.S. Supreme Court granted, a petition for certiorari.
On June 27, 2002, the Supreme Court reversed the Sixth Circuit’s decision, holding in a 5-4 ruling that the breadth of choices beyond the traditional public school systems — namely, the numerous charter and magnet school options — gives parents "true private choice" among a diverse array of schools, such that the inclusion of religious schools in the program passes constitutional muster.
Justices Souter, Breyer, Ginsburg and Stevens dissented.