THE LAW REGARDING VOUCHERS is in the midst of fundamental change. About a year ago, no one knew whether voucher programs could include private religious schools without running afoul of the First Amendment's establishment clause. That clause prohibits "any law respecting an Establishment of Religion" and is popularly understood to create a"wall of separation" between church and state. Today, after the Supreme Court's 2002 decision in Zelman v. Simmons-Harris, not only is it clear that voucher programs may include private religious schools, but it is quite possible that they must.
Indeed, the Supreme Court will decide a case this term, Davey v. Locke, which could resolve this very question. The lawsuit began when Washington State's Higher Education Coordinating Board revoked a state-funded "Promise Scholarship" from Joshua Davey, who was then a student at Northwest College, a private Christian school in Kirkland, Washington. The scholarship was available to students from low- and middle-income families who finished in the top 10 percent of their high-school class and enrolled in one of the state's accredited public or private colleges. However, in October 1999, the fall of Davey's freshman year, the Board notified colleges that students majoring in theology were ineligible for the scholarship, citing a provision in the state constitution that bans public support for religious instruction. Davey, who planned to become a minister and had declared a major in "pastoral studies," lost his scholarship and promptly sued the state.
By a 2-to-1 vote, the Ninth Circuit Court of Appeals overturned the state agency's decision, holding that it "facially discriminates on the basis of religion." The state "may not offer a benefit to all," the Court concluded, "but exclude some on the basis of religion." If the Supreme Court, as many expect, agrees with this reasoning, it would seem to follow that excluding religious schools from voucher programs is also unconstitutional. This would not end all legal challenges to vouchers, but it would constitute an enormous sea change in the law surrounding voucher programs. Describing the origins and direction of that change, as well as marking the legal battles that lie ahead, are the subjects of this essay.
The transformation in the law regarding vouchers began last June with the Supreme Court's historic Zelman decision. By a 5-4 vote, the Court upheld Cleveland's voucher program, which offers a limited number of students the chance to attend private schools, including religious ones, at public expense. The Court determined that Cleveland's program was formally neutral toward religion and that government aid reached religious schools" only as a result of the genuine and independent choices of private individuals." As a result, the Court reasoned, the program did not violate the establishment clause's prohibition on "advancing religion." The Court's decision, fairly read, is a sweeping endorsement of the proposition that voucher programs may include private, religious schools.
The Court essentially established a two-part test for judging voucher programs, and both parts are easy to meet. First, the program must be neutral with regard to religion. Under the Court's interpretation of "neutrality" this simply means that the formal criteria for selecting students and schools to participate in the program cannot be based on religion, nor can a program skew the choice toward religious schools by, say, providing more money for students who select religious schools. Importantly, it is legally irrelevant if most of the voucher students ultimately end up in religious schools, as was the case in Cleveland, where 96 percent of voucher students were attending religious schools. A voucher program, in other words, must be neutral in its design, but not necessarily in its impact.
The second part of the test is only slightly more difficult to meet. …