Legal Dimensions of Educational Vouchers
Salomone, Rosemary C., St. John's Law Review
In recent years, the concept of school choice has come to the forefront of public debate. Once considered a heresy against the creed of the common school, family choice proposals are slowly gaining increased support from across the political spectrum and promise to change the face of educational governance in America.
There are a number of permutations on the choice theme, including magnet schools within school districts, charter schools which essentially are public schools freed from many regulatory constraints and operated by outside groups, and school vouchers awarded to parents for payment of tuition at private schools. The voucher concept has proven the most problematic from both the legal and policy perspectives. The inclusion of religiously affiliated schools in these proposals forms the main point of contention. In recent years, publicly funded voucher programs have generated litigation in Florida, Ohio, and Wisconsin1, while voters in California, Colorado, Michigan, Oregon, and Washington have overwhelmingly rejected direct ballot initiatives for private school choice. The voucher question played a role, to some degree, in the presidential campaign of 2000 and marked a clear difference in policy perspective between the two leading candidates.
A number of organized groups have rallied together in opposition to the voucher concept. The most prominent among these are People for the American Way, the National Education Association, the American Federation of Teachers, the American Civil Liberties Union, Americans United for Separation of
Church and State, and the National Association for the Advancement of Colored People. Opponents perceive vouchers as a threat to the public school system and a diversion of tax dollars to private, and most significantly, religious schools. They raise the specter of the First Amendment's Establishment Clause and various state constitutional prohibitions against public funding of religious institutions.
The voucher concept has undergone a dramatic transformation since economist Milton Friedman introduced his free market proposal almost four decades ago. Friedman's idea of a pure voucher scheme would have granted a government subsidy to every elementary and secondary school student equal to average per pupil expenditures. His system would have been unregulated; the school could have been able to charge whatever the market would bear. Inefficiently run schools would have lost out in the competition of the marketplace.2 The market theory now appears to have given way to an equality model originally advanced by John Coons and Stephen Sugarman, law professors at the University of California at Berkeley, who looked to vouchers as a means to advance education for the poor.3 Unlike Friedman, who believed that family choice would equalize the social and private costs of child-rearing, Coons and Sugarman grounded their model in the belief that the family has a special knowledge and understanding of the child and therefore can make the most informed decision concerning the child's education.4
Within this context, the voucher concept is seen as a vehicle to promote equal educational opportunity and to bridge the widening achievement gap between the rich and the poor and particularly among minorities in urban areas. Fueled by the failures of court-ordered desegregation, federally funded remedial programs, and efforts to reform state financing systems to equalize educational opportunities across the economic and racial divide, it took almost two decades for their theory to take hold. …