For several decades, local, state, and national governments have considered the enactment of school voucher plans for elementary and secondary school students. The central idea that unites these plans is that government money—that would otherwise be given to public schools—is given to students and their parents, who can use this money to pay for attendance at the schools of their choice.
Eligible schools under school voucher plans may include public, private nonreligious, and private religious schools. If the participating schools are all public in nature, with students and their parents simply empowered to choose among them in disregard of usual attendance boundaries, there are usually few serious civil liberties issues involved. Under such plans, parents are simply given more public choices than they otherwise would have.
If the criteria for participating schools are broadened to include private nonreligious schools, more objections arise. For instance, concerns have been expressed that private voucher-funded schools may engage in discrimination in admissions on the basis of race, ethnicity, gender, or ability, or that the unique role of public schools in fostering a common civic culture will be lost. If a voucher-funded school engages in discrimination on the basis of race, ethnicity, gender, or other protected category, the guarantees of the equal protection clause of the Constitution may be implicated. Otherwise, the civil liberties and educational policy issues that are raised by the school’s operation are weighed against the interests of students and parents in public funding for the schools of their choice.
The most difficult civil liberties questions arise when voucher plans permit the participation of religious or ‘‘sectarian’’ private schools. The central tension here is between the claim of religious-school students and their parents that they are entitled to public funding for religious education on a par with that afforded for secular education, on the one hand, and the claim of taxpayers to be free of coercion by government to fund the religions of others, on the other.
In its embodiment of this tension, the school voucher debate is part of a larger, historical struggle over taxpayer funding of religious schools. During the sixty years that the Supreme Court has wrestled with this issue, several background principles have emerged. First, the giving of substantial, unrestricted, cash grants to taxpayer funds to religious elementary and secondary schools has been consistently held to violate the Establishment Clause of the First Amendment. Such funding of religious schools has been treated as the equivalent of funding of churches, synagogues, mosques, and other religious institutions.
When public aid to religious schools is ‘‘in kind’’ or otherwise restricted, its constitutionality has traditionally depended on whether the aid was secular in nature and whether it could be ‘‘diverted’’ by the school to religious purposes or functions. For instance, in Mitchell v. Helms, 530 U.S. 793 (2000), the Court upheld a federal program in which computers and other technical materials and services were purchased with federal money by local school districts and distributed as ‘‘loans’’ to public, private nonreligious, and private religious schools. The plurality opinion cited as important the facts that the program provided aid that was ‘‘secular, neutral, and nonideological,’’ in nature, and that was used in public schools.
In cases involving ‘‘indirect aid’’ to religious schools—that is, aid given not to the schools themselves, but to attending children and their parents— different principles emerged. In early cases, such as Board of Education v. Allen, 392 U.S. 236 (1968), the Court upheld these programs if the aid was secular in nature and conferred only incidental benefit on religious schools. This approach remained prominent in ‘‘indirect aid’’ cases until the mid-1980s, when a new theory emerged. Under this new theory, ‘‘indirect aid’’ created no Establishment Clause problem because it was religious-school children and their parents— not government—who funded religious schools. As Justice Thomas stated in Mitchell v. Helms, ‘‘[i]f aid to schools . . . is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided [support to religious schools].’’ Critics responded that this view failed to consider that these individual parental decisions are in fact anticipated and authorized by the government program, and that they accomplish the goal—the public funding of (private and public) education—which the government has previously identified.
How vouchers would be treated under these conflicting rules was determined in Zelman v. Simmons- Harris, 536 U.S. 639 (2002). In this five-to-four decision, the Court held that a voucher plan that included religious schools among eligible institutions did not violate the Establishment Clause. In reaching this decision, the Court did not remove the general constitutional prohibition on the payment of cash grants to religious institutions. Rather, it held that the passage of voucher money through the hands of parents removes the government from the transaction, for the purposes of the Establishment Clause. Since (in this view) it is parents (not government) who choose to fund religious schools, there is no establishment of religion by government.
The Court’s decision in Zelman answers one constitutional question about voucher programs, but leaves others. After Zelman, the federal Establishment Clause presumably presents no barrier to a voucher plan’s inclusion of religious elementary and secondary schools. However, beyond the removal of this obstacle, significant questions remain. For instance, many voucher programs purport to exclude schools that discriminate in admissions or hiring on religious grounds, or that advocate intolerance of the religion, race, or ethnicity of others. If a religious group wishes to discriminate in favor of coreligionists in staffing or admissions, can a voucher plan exclude that school without offending the free exercise clause of the First Amendment? Can a religious group whose beliefs are deeply offensive to others—indeed, whose beliefs deny the civil rights of others—be excluded from a public voucher program, without violating free exercise guarantees, free speech guarantees, and the guarantee of equal treatment of all religious groups?
In addition, many state constitutions prohibit public funding of religious institutions, including schools. These provisions, which may stand in the way of religious-school voucher funding, have been attacked as violative of federal constitutional equal treatment guarantees, as rooted in antireligious bias, and as otherwise illegal or unwise. In Locke v. Davey, 540 U.S. 712 (2004), the Court upheld the ability of states to recognize antiestablishment interests in the religious- school funding context that are broader than those recognized under the federal Constitution’s Establishment Clause. In Locke, the Court held that although a state could (under Zelman and other cases) give scholarship funds to college students for religious studies, it was not required by federal free exercise, antiestablishment, or equal protection guarantees to do so. Although Locke did not deal with an elementary or secondary school voucher program, its general principles seem to foreclose effective federal constitutional challenge of state no-funding provisions, absent additional evidence of particular, antireligious bias in the enactment or enforcement of particular state laws.
LAURA S. UNDERKUFFLER
References and Further Reading
- Dwyer, James G. Vouchers within Reason: A Child-Centered Approach to Education Reform. Ithaca: Cornell University Press, 2002.
- Jeffries, John C., and James E. Ryan, A Political History of the Establishment Clause, Michigan Law Review 100 (2001): 279–370.
- Lupu, Ira C., and Robert W. Tuttle, Zelman’s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, Notre Dame Law Review 78 (2003): 917–993.
- Shiffrin, Steven H., The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers, Cornell Journal of Law and Public Policy 11 (2002): 503–551.
- Underkuffler, Laura S. ‘‘Public Funding for Religious Schools: Difficulties and Dangers in a Pluralistic Society.’’ Oxford Review of Education 27 (2001): 577–592.
- ———, Vouchers and Beyond: The Individual as Causative Agent in First Amendment Jurisprudence, Indiana Law Journal 75 (2000): 167–191.
- Viteritti, Joseph P, Reading Zelman: The Triumph of Pluralism, and Its Effects on Liberty, Equality, and Choice, Southern California Law Review 76 (2003): 1105–1187.
Cases and Statutes Cited
- Board of Education v. Allen, 392 U.S. 236 (1968)
- Locke v. Davey, 540 U.S. 712 (2004)
- Mitchell v. Helms, 530 U.S. 793 (2000)
- Zelman v. Simmons-Harris, 536 U.S. 639 (2002)