Mitchell v. Helms: Giving the Cleveland School Voucher Program a Fighting Chance

Abstract

This Comment argues that school voucher programs, and specifically the program implemented in Cleveland, are constitutional under the Establishment Clause as it was historically fashioned and interpreted,' and especially in light of the Supreme Court's most recent addition to Establishment Clause jurisprudence in Mitchell v. Helms. History reveals that strict separation of church and state was not the intent of the framers, nor has it been the goal of modem jurists. Therefore, "voucher programs involving religious institutions should not be written off as inherently unconstitutional."

Part II of this Comment discusses the history and policy behind the school voucher movement, and looks closely at the two most notable modem examples, the Cleveland and Milwaukee programs. Part III examines the First Amendment's Establishment Clause in depth; analyzing its origins, development, and most notably the Supreme Court's curious and rather convoluted treatment of the Clause throughout history. Part IV introduces Mitchell v. Helms and each of its three opinions: the plurality written by Justice Thomas, the concurring opinion by Justice O'Connor, and the dissent by Justice Souter. Part V applies the framework in Mitchell v. Helms to the Cleveland Program, reasoning toward the conclusion that it does not violate the Establishment Clause. Part VI concludes the Comment, and offers a proscription for future school voucher jurisprudence and debate.