An Argument from Democracy Against School Choice: A Critique of Zelman V. Simmons-Harris

Posted: 1 Apr 2004

See all articles by Moshe Cohen-Eliya

Moshe Cohen-Eliya

College of Law and Business; College of Law and Business - Ramat Gan Law School

Yoav Hammer

College of Law and Business - Ramat Gan Law School


The article is comprised of two parts: a theoretical part and a legal part. The first part addresses two questions: 1. Should a democracy act so as to ensure its continued existence? 2. What should a democracy do so as to ensure it continued existence? In this part we shall claim, firstly, that a democratic state has a right and even a duty to act to conserve the democratic form of government. Next we will argue that the most effective way of ensuring the existence of democracy is not the creation of legal or constitutional prohibitions against anti-democratic associations, but ensuring that amongst citizens there is widespread commitment to the values of equal liberty, tolerance and respect, as well as a capacity for critical thought. The most effective means of obtaining this goal is to develop such commitment and capacity in schools. At the end of the theoretical part we will discuss and refute four objections to our position that the state should educate for democratic values.

In the second, legal part, we will present the Court's ruling in Zelman v. Simmons-Harris and a critique thereof. We will argue that the Court was mistaken in ignoring the detrimental effects which the permit it gave for the adoption of vouchers programs might have on the commitment of future citizens to democratic values. In contrast to the majority ruling, which assumes that the establishment clause permits neutrality between religious and secular outlooks, we argue, with Sullivan, that the establishment clause should be understood as taking a non-neutral stand in favor of the 'establishment' of a civil order for the resolution of public moral disputes. Therefore the state is forbidden to fund the activities of religious institutions even while it funds the activities of non-religious institutions.

In order to illustrate the dangers which the funding of education in religious schools poses for democracy, we shall later describe the Israeli experience in breadth. In Israel funding was granted to religious education and this led to substantial erosion in education for democratic values. At the end of this part we will examine three possible courses of action that might be taken in an attempt to ensure education for democracy after Zelman: non-funding of private schools, funding of private schools conditioned on the fulfillment of a requirement to educate for democratic values, and the positing of a legal obligation requiring private schools to educate for democratic values (with or without a decision to fund such schools). We will evaluate each of these courses of action for its effectiveness in promoting democratic education and with regard to its constitutional merits.

Keywords: School choice, vouchers, militant democracy, intolerant democracy, democracy, education, political liberalism, Zelman v. Simmons-Harris

Suggested Citation

Cohen-Eliya, Moshe and Hammer, Yoav, An Argument from Democracy Against School Choice: A Critique of Zelman V. Simmons-Harris. Loyola Law Review, Vol. 49, p. 859, 2003. Available at SSRN:

Moshe Cohen-Eliya

College of Law and Business ( email )

26 Ben-Gurion St.

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan
972-3-6000800 (Phone)
972-3-6000801 (Fax)

Yoav Hammer (Contact Author)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275

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