Although events in several states seem to indicate that vouchers in their various forms have no future, the U.S. Supreme Court still remains to be heard (“Has the Tide Turned Against Vouchers?” National Education Policy Center, Feb. 21). The closest it came in that regard was in 2002 in Zelman v. Simmons-Harris, when the high court held that Cleveland’s vouchers did not violate the Establishment Clause of the First Amendment even though parents were permitted to use them for religious schools.
As readers of this column know, I support parental choice. But I’ve also stressed time and again that public money should not be used for religious schools. SCOTUS disagrees. I still don’t understand the rationale for the Zelman ruling. Late last year, the Montana Supreme Court agreed in part, when it struck down the state’s three-year old neovoucher program because it funded private and religious education.
I don’t believe that voters are willing to completely give up on traditional public schools. The closest they are can be seen in the popularity of charter schools, which are publicly funded. But even charter schools are facing pushback by a cap placed on their growth by some school districts. As things stand, charter, private and religious schools play by a completely different set of rules than traditional public schools. As a result, comparing outcomes is totally unfair.
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Vouchers are bad public policy but probably not unconstitutional.
There is no analytically clean way to reconcile the free-exercise and no-establishment clauses in the religious-school/voucher context. If a voucher program gives tax $ to a religious school, that sure looks like an establishment of the religion. But, if religious schools cannot receive tax $ when other private schools can receive tax $, that sure looks like interference with the free exercise of religion.
The SCt, in trying to reconcile these arguably irreconcilable constitutional commands, usually ends up with some kind of split-the-baby analysis — which, of course, is pragmatic but intellectually weak.
If I were on the SCt, I’d hold that vouchers for religious schools do not violate the establishment clause unless the primary purpose of the voucher program was to benefit religious schools rather than to offer parents a choice of where to send their children. If, for example, the vouchers could only be used at religious schools (and not at private non-religious schools) or if it was obvious that the overwhelming percentage of the voucher $ would be spent at schools run by a particular religion that was also politically dominant (i.e., the orthodox Jewish communities north of NYC where the orthodox Jews took over the school board and tried to gut spending for the public schools), then the primary purpose would be to establish religion and the voucher program would be unconstitutional. But, such voucher programs would be the exception. Most voucher programs are primarily intended to give parents a tax-payer-assisted option to leave the neighborhood public schools and would be constitutional under this proposed test.
Of course, as I’ve argued in earlier comments, I strongly opposed charters and vouchers on policy grounds; but that’s a separate issue.
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Labor Lawyer: You make an excellent point about the U.S. Supreme Court. Yet I still don’t understand the Zelman decision. Religious schools will always benefit from vouchers regardless of their intent (i.e. giving parents a choice). That’s probably because the term “establishment” is subject to different interpretations.
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It’s not so much a question of whether the religious schools will benefit — obviously, they will. The analytical problem — as I see it — is that denying voucher $ to religious private schools while giving voucher $ to non-religious private schools would be discriminating against the religious private schools because they are religious schools. That would violate the Free Exercise clause. So, the SCt tries to split the baby by saying, in effect, it’s OK to give a little voucher $ to religious schools so long as the religious schools use the $ for non-religious purposes. Of course, $ is fungible. If the religious school gets voucher $ for algebra text books, that frees up $ that the school would otherwise have spent on the algebra text books to spend on religious matters.
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Labor Lawyer: You make an important distinction. I expect to see further decisions by the high court allowing public funds to be used at religious schools, albeit with certain restrictions.
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