The U.S. Supreme Court and Society in Gerald Rosenberg's The Hollow Hope

In his book The Hollow Hope, Gerald Rosenberg mentions that it is difficult for the Supreme Court to exert any significant influence on the process of social reform in the U.S. More often than not, a certain ruling by the Supreme Court has little effect or even a detrimental effect on a social movement by weakening its supporters who think that they have achieved significant victory and strengthening its opponents who feel the urgency to rally to defeat it or to defend against it. Without the influence of the political establishment and aggressive participation on the part of social activists, the best the highest national court can achieve is to provide stronger legislative grounds for an already existing social trend.

This function of the Supreme Court is reflected in the June 2002 ruling in the case of Zelman v. Simmons-Harris, involving the state school vouchers program in Cleveland, Ohio. Under the Pilot Project Scholarship Program, parents were issued tuition assistance vouchers that they could use to take their children out of failing public schools and place them with participating private schools or public schools run under the supervision of separate private school boards. As a result, 96 percent of all students who took advantage of the voucher program had been placed in religiously oriented private schools, creating an outcry about the violation of the Establishment Clause in the Constitution aimed at separating church and state.

U.S. Court of Appeals for the Sixth Circuit ruled the program unconstitutional, but the Supreme Court overruled it by a 5-4 decision that emphasized the private nature of the choice of schools. In other words, the program itself did not single out or showed preferential treatment toward religiously oriented schools; it was the parents who made a private, constitutionally defended choice of a school with which to place their children. Furthermore, those religiously oriented private schools wishing to participate in the voucher program were required to admit all qualifying applicants regardless of their race, gender, or religious affiliation, ensuring that there would be no segregation by religion in such schools, which would in fact violate the Establishment Clause by providing governmental funding to foster a certain religious belief.

While the Supreme Court's decision provides strong legal precedent for future cases of similar nature, it in fact simply reaffirms the existing trend of parents seeking better education for their children in private, tuition-financed schools. Having more funds on their hands, private schools have the ability to hire better teachers, administrators, and security personnel, which, along with better equipment and educational aids, provides a better learning environment for students. Considering the generally dismal state of public education throughout the nation-and especially in Cleveland, as the examined case states-it is not surprising that parents prefer private schools as educational means for their children. In this respect, the state-sponsored tuition assistance voucher program does the same thing as the privately supported scholarship funds. Unlike the latter, however, the state-sponsored program extends the benefits of choice of a school for one's children to parents of all racial, ethnic, and religious affiliations, so it is clear that such program would find strong public support. This means that had the Supreme Court upheld the ruling by the lower court, the public trend of choosing private schools over public ones would continue, and public pressure would eventually result in legislative or other measures that would still effectively initiate an initiative similar to the Pilot Project Scholarship Program.