Over the past decade, several states have begun programs to give parents expense vouchers to help pay tuition at private schools, including religious schools. Do such payments constitute direct state aid to religion in violation of the establishment clause of the First Amendment? This question is at the heart of one of the longest-running church-state debates in U.S. history.

Both opponents and proponents of voucher programs have worked diligently to express their views. Below are common arguments raised by participants in this culture-war battle.

Arguments against vouchers
Voucher opponents contend vouchers are both unconstitutional and poor policy. Their arguments include:

• Vouchers will harm public schools by taking the best students, with the most involved parents, out of public schools. This exodus will leave only the most difficult-to-educate children, including special-education students and students with discipline problems. Opponents note that because private schools are not required to take all students, as public schools are, only top students have any real choice. Thus public schools are left with the most-expensive-to-educate children — whom they must now educate with fewer resources.

• Pulling money from public schools will retard “real” school reform, such as smaller class sizes and better resources. Opponents argue that most American youths attend public schools, and school reform should therefore focus on making the public schools better.
• The community will become “Balkanized,” as students and families segregate themselves into homogeneous enclaves. A divided and suspicious society will result, as students will not have the opportunity to interact with others who are different in a safe and educational environment.
• Providing funding to religious schools violates the principles of the First Amendment’s establishment clause as set out in historical documents of the Founding Fathers and Supreme Court jurisprudence, such as Everson v. Board of Education (1947).
• While most voucher proposals are based on claims that vouchers allow students trapped in underperforming schools a choice at a better education, the reality is that vouchers don’t cover full tuition at most private schools.
• Studies reportedly demonstrate that private school students perform no better than their public school counterparts.

Arguments for vouchers
Voucher proponents are motivated by a variety of interests, though they are generally united in their criticism of and displeasure with the state of public education.

Some argue that vouchers are an acceptable, and needed, type of educational reform. Their arguments include:

• Vouchers encourage free-market pressures in education, just as in the business sector. These pressures force public schools to perform more efficiently and effectively in order to compete with private schools.
• Vouchers allow parents the freedom to decide where their children can receive the best education, and enable parents to choose schools where their values and ideals are taught and exemplified.
• With vouchers, parents who are concerned about the safety and quality of public schools have other options for educating their children.
• To restrict religious schools from voucher programs amounts to discrimination against religious points of view and limits the free exercise of religion. This argument is based on the idea that excluding religiously affiliated organizations from government programs that are open to anyone else is discriminatory.

These arguments, from both sides of the debate, focus chiefly on questions that are primarily policy issues to be debated in communities through the political process. But before that process can begin, a more foundational First Amendment question must be answered: May parents use publicly funded vouchers for tuition at religious schools without violating the establishment clause?

First Amendment concerns
In the 1947 case of Everson v. Board of Education, Justice Black penned one of the foundational standards for future establishment-clause jurisprudence. “The ‘establishment of religion’ clause of the First Amendment means at least this… . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” On its face, the language in this case set the wall separating religion and government very high, forbidding direct government funding to religious institutions, including religious schools. It should be noted that while the majority opinion in Everson set a stringent standard, five justices found that the facts in the case did not violate this principle. They held the program in question provided transportation assistance to the children, not the school. Since the benefit flowed to the individual instead of the religious institution, no establishment-clause violation occurred.

In the decades that followed, language from this decision became ubiquitous in establishment-clause cases over public funding for religious schools. Courts held closely to the idea that government money or aid cannot flow directly to religious schools. This early understanding of establishment clause restrictions relied heavily on the writings of Thomas Jefferson and James Madison.

As the makeup of the Supreme Court and social situations changed, establishment-clause jurisprudence evolved. Deviating from the “no direct aid” construct of the Court in the 1950s through the 1970s, opinions began to focus not on the religious character of the recipient, but on what criteria regulated participation in a government program. By the 1990s, four members of the Court were focused primarily on whether a government program provided neutral, even-handed criteria in determining who gets aid.

Current controversy
With these two seemingly opposing views of the establishment clause in place, the battle over vouchers was set. In the fall of 2001, the debate came to a head when the Supreme Court took the case of Zelman v. Simmons-Harris, a dispute over a voucher program in Cleveland.

Zelman v. Simmons-Harris
In the 1990s, the Cleveland public schools reached such a state of disrepair and dysfunction that a federal judge required the state of Ohio to assume administration of the district. In 1995, the state proposed several initiatives for Cleveland schools. Among these proposals was the idea of providing students with a voucher for use at any participating private or public school. The following year, lawsuits were filed over allowing religious schools to take part in this program. After working its way through the appeals system, this controversy was granted review by the Supreme Court in 2001.

The case brought together a bevy of strange bedfellows, and the resulting 34 briefs filed showed the range of ideological differences among the organizations involved. As pro-voucher scholars Nicole and Richard Garnett aptly observed of the new alliances, “The politics of education reform are a mystery. Millionaire businessmen and conservative activists invoke civil rights ideals to demand equality, freedom, and diversity in education — while liberals join union bosses and anti-religious activists in support of a government monopoly. Strange days indeed, when the NAACP’s and ACLU’s opponents are black schoolchildren singing ‘We Shall Overcome’ on the courthouse steps.”

Zelman also managed to highlight the clash of paradigms over the appropriate relationship between government and religious bodies, and the establishment clause’s role in defining this relationship.

The resulting opinion found a divided Supreme Court ruling 5-4 that the Cleveland voucher program was constitutional. Five members of the Court, led by Chief Justice William Rehnquist, observed that the vouchers were given to parents — not schools — who were able to use the voucher at any school participating in the program. Coupling that fact with the religion-neutral criteria both parents and participating schools met, the majority found the voucher program constitutional. Rehnquist summed up the analysis, this way:

“[T]he Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”

Justice Sandra Day O’Connor wrote a concurring opinion emphasizing the importance of neutral criteria and that the choice of aid recipient was made by parents. Justice Clarence Thomas’s concurrence took a different turn, focusing on civil rights issues involved in allowing poor and minority students the same choice in private education that is available to wealthier students.

The other four members of the Court held to more traditional concepts, arguing that government must not aid religious bodies, as described in the Everson decision, and that neutrality and free choice must be examined within the context of how the program manifests itself. They were unpersuaded by the appearance of neutrality in the program, finding that the overwhelming number of religious schools taking part in the program created both the perception and the reality of a government preference for religious schools. Justice David Souter concluded by pointing out how the majority’s approach violated the principles of the establishment clause, as well as precedent: “It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme, but something has to be said about the enormity of the violation.”

Coming up: state actions
While the Supreme Court’s majority opinion provided the blueprint for creating voucher programs that are acceptable under the federal Constitution, state courts must now examine voucher programs in light of their own state constitutions.

Many states, especially those in the West, have Blaine Amendment-style provisions in their constitutions that require strict separation on matters of public funding for religious groups.¹ Often, these provisions are holdovers from the 19th century that were inspired by anti-Catholic and anti-immigrant sentiments. Voucher proponents will face the difficult task of pushing the states to remove these amendments or declare them unconstitutional.

Despite the difficulties they face, voucher proponents are now taking the debate to state legislatures. In one recent example, Colorado passed a school-voucher pilot program in one school district. Many legislatures, some in larger states like Texas and California, are also examining possible voucher initiatives.

Notes