Are School Vouchers Constitutional?

Article excerpt

The authors identify emerging judicial perspectives regarding the constitutionality of school vouchers under both federal and state laws and discuss the factors that predispose a court to look with favor on a voucher program.

"I'd rather go to jail!" cries Joanne Curran, a divorced mother of four.

"This is the Armageddon!" shouts another angry advocate.(1)

Is this impassioned rhetoric about the latest controversy surrounding abortion or gun control? No, these are battle cries over school vouchers, funded by the state, that parents may "cash in" at public or private schools of their choice. Growing popular support for the use of school vouchers has polarized views about whether such programs are valid policy options and hardened the lines on both sides of the debate. The clamor peaked last August when the Wisconsin Supreme Court issued a temporary injunction against the expansion to religious schools of the only public voucher program that has come into full operation. It was that court's action that triggered the angry outcry of parents favoring vouchers in Milwaukee.

Voucher initiatives have been proposed in the District of Columbia and in such states as California, Colorado, Illinois, Minnesota, Pennsylvania, and Texas. Measures have been passed in Wisconsin, Puerto Rico, and Ohio. In March 1995, Sens. Dan Coats (R-Ind.) and Joseph Lieberman (D-Conn.) introduced the Low-Income School Choice Demonstration Act (S. 618), which would allocate $30 million in federal funding to pay for 10 to 20 voucher projects enabling low-income families in inner-city school districts to send their children to private schools, including those that are sectarian.

Proponents believe that, if parents are free to choose the schools their children attend, then schools will be more competitive, students' academic capabilities will increase, and parents will be more active in their children's development. Critics question whether parent involvement or student achievement will increase and contend that a market-based education system will undermine the public schools, promote social stratification, and violate the separation of church and state.

Regardless of the merits of publicly funded vouchers, the constitutionality of such a system is a central concern, because approximately 85% of private schools are religiously affiliated. In this article we will identify emerging judicial perspectives regarding the constitutionality of school vouchers under both federal and state laws and discuss the factors that predispose a court to look with favor on a voucher program.(2) The controversy over voucher programs is more complicated than the question of governmental establishment of religion. It involves many other issues that we hold dear - parental rights, freedom of religious exercise, and the role of the state in fostering an educated citizenry.

Constitutionality Under Federal Law

In 1925 the U.S. Supreme Court ruled that parents have the right to send their children to a private school in lieu of a public school.(3) The Court did not, however, address the issue - which has been a problem ever since - of whether public funding could be used to help parents exercise that right. Without the funding to pay tuition at private schools, which are becoming increasingly expensive, the right to send one's children to them is really an empty promise for many parents.

Tension over how to balance the private rights of religious freedom and educational choice without at the same time establishing religion is really nothing new.(4) The issue first surfaced for the Supreme Court as it considered a state program that allowed school districts to reimburse parents whose children rode public transportation to religious schools. The 5-to-4 Everson v. Board of Education decision (1947) held that New Jersey could expend the funds because the program also reimbursed pupils attending public school and thus was really a neutral state effort to enable students to get to and from schools safely. …