Ms. McCarthy discusses recent litigation pertaining to voucher programs, changes in the Supreme Court's posture toward government aid to religious schools, the legal rationale to defend voucher plans that include parochial schools, and the implications of a judicial stance that is favorable toward voucher systems.
NO TOPIC is generating more volatile debate in legislative, judicial, and educational forums than voucher systems to fund schooling. Discussions elicit strong emotions, positions are entrenched, and few people are objective about or neutral toward this issue.1 The only point on which advocates and critics of school voucher plans agree is that if such systems are implemented on a broad scale, they will dramatically change public education in our nation. Although statewide voucher initiatives have consistently been defeated when subjected to a vote of the citizenry, in recent years various proposals to fund education through vouchers have been introduced in Congress and in about half of the state legislatures. Under a basic voucher system, parents can use state-funded vouchers of a designated amount to pay for their children to attend a public or private school of their choice. Plans vary as to the amount of government regulation involved and whether participating private schools can charge more for tuition than the basic voucher amount. The most controversial current issue, which has generated much of the legal activity, focuses on the inclusion of sectarian schools in state-supported voucher programs. Voucher proponents contend that parents do not truly have educational choice if sectarian schools are excluded from the voucher program, as about four-fifths of all private schools nationally have religious ties. The central federal question is whether the participation of sectarian schools violates the First Amendment's establishment clause, which prohibits governmental action respecting an establishment of religion. Thus the U.S. Supreme Court, through its interpretations of the federal Constitution, may have the final word in determining whether voucher proposals are widely adopted. If the Court concludes that such plans unconstitutionally advance religion, the school voucher movement will be severely curtailed. But if the Court gives a green light to voucher plans that include sectarian schools, this will encourage states to experiment with various types of voucher systems. Public educators need to be prepared for the latter possibility to become a reality.
It is risky to speculate as to what direction the Supreme Court will take on any issue, but there have been signs in the past decade that the Court is relaxing its interpretation of the establishment clause and is willing to allow more state aid to flow to sectarian schools than in the past. What follows is a brief discussion of recent litigation pertaining to voucher programs, changes in the Supreme Court's posture toward government aid to religious schools, the legal rationale to defend voucher plans that include parochial schools, and the implications of a judicial stance that is favorable toward voucher systems.
Recent Legal Activity Involving Voucher Plans
Although a number of voucher proposals with varying degrees of governmental regulation have been discussed for several decades,2 it was not until the 1990s that state-funded plans involving private schools were adopted. And there has been more legal activity pertaining to vouchers since 1998 than ever before. Indeed, only in 1999 did Florida become the first state to adopt a statewide voucher plan that allows public funds to flow to private schools.3 Under the Florida program, students attending public schools that are rated as deficient (based on test scores, attendance, graduation rates, and other factors) are entitled to government vouchers that can be used in qualified public or private schools of their choice. State-funded voucher programs have also been established for disadvantaged youth ths in Milwaukee and Cleveland, and privately funded scholarships are available for students to attend private schools in more than 30 major cities nationally. …