Voucher Revival: Thanks to a Misguided Supreme Court Decision and Wealthy Right-Wing Foundations, the School Voucher Movement Is under Way Again

Article excerpt

A few years ago the school voucher movement appeared to be heading toward demise.

With rare exceptions, the courts looked unfavorably on government plans that paid for tuition at religious and other private schools. The few programs that were operating did so under a cloud of constitutional uncertainty. Numerous federal and state courts had invalidated voucher schemes on First Amendment grounds, citing the principle of separation of church and state.

In addition, voters in a raft of states, including California, Michigan, Colorado, Oregon and Washington, had turned away initiatives to implement voucher proposals, usually decisively. In Michigan and California, voters in the 2000 general election rejected voucher initiatives overwhelmingly, with 71 percent of Californians and 69 percent of Michiganders just saying "no."

That scenario changed overnight with the Supreme Court's 2002 summer ruling in Zelman v. Simmons-Harris that upheld an Ohio voucher law. The justices' 5-4 decision re-ignited a well-funded provoucher drive in the states and Congress. A select group of wealthy right-wing foundations and individuals is ratcheting up its financial support of the political and religious organizations that have been leading the voucher movement for many years.

The president and the Republican-controlled Congress, moreover, are likely to push "educational choice" legislation including voucher schemes. In fact, shortly after the Zelman decision, Bush went before an adoring crowd in Cleveland, the city where the Ohio voucher program got its start, to laud the Supreme Court for handing down a decision "just as historic" as Brown v. Board of Education, the landmark 1954 ruling that outlawed segregation in the public schools. Bush also declared Ohio's voucher law a "constructive approach to improving public education," The New York Times reported.

With the national scene dramatically changed, advocates of public education and church-state separation are gearing up for major battles.

"Just as we suspected, the high court's deplorable ruling on vouchers has breathed new life into the pro-voucher movement," said Barry W. Lynn, executive director of Americans United for Separation of Church and State. "We expect to find this a very challenging year."

Lynn said voucher advocates will be waging their campaign on several fronts--the state courts, the state legislatures and Congress.

Proponents of tax aid to religious schools must still overcome legal hurdles before they see their movement flourish in the states. The Zelman case dealt only with the question of whether the Ohio voucher law violated the U.S. Constitution's First Amendment, which mandates church-state separation. States also have their own constitutions, and the vast majority of them include "no establishment" clauses, which are much stricter in barring public funding of religious institutions than the federal Constitution.

In fact, a Florida judge in August invalidated the nation's only statewide voucher program because it "ran afoul" of the state constitution's provision that forbids tax dollars from flowing to religious institutions. Section 3 states, in part, that "No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution."

The Institute for Justice (IJ), a Washington, D.C.-based libertarian organization, is leading the charge to invalidate the no-establishment clauses found in state constitutions, according to a Boston Globe article from July. IJ's website, www.ij.org, indeed describes its strategy and denounces the states' no-establishment provisions as "remnants of anti-Catholic and anti-immigrant hysteria in the late 1800s."

"So the Institute for Justice is taking the battle for parental liberty to the states, launching a wave of lawsuits challenging the discriminatory state constitutional provisions," IJ declares on its website. …