President Bush’s formal presentation of a detailed school voucher plan during his first week in office renewed the hopes of voucher advocates, who suffered major setbacks when California and Michigan voters overwhelmingly rejected voucher programs in November and a federal appeals court invalidated an Ohio voucher plan in December. Bush’s initial proposal to provide $1,500 vouchers for parents of children who attend substandard schools is a watershed because it is the first federal voucher measure to carry any real political clout. Like other voucher plans, however, the Bush proposal faces major political and constitutional obstacles.
As indicated by the defeat of the recent California and Michigan referenda by margins of more than two to one, there is substantial public opposition to voucher plans. Voters in 22 other state referenda since 1967 have likewise defeated vouchers, usually by similarly decisive margins. Although Bush’s proposal may generate more support because half of the $1,500 would come from the federal government rather than from the states, the intensity of opposition to vouchers indicates that objections to vouchers are based on far more than fiscal fears.
Court Misgivings
Courts likewise have expressed significant misgivings about vouchers. In particular, vouchers may breach the “wall of separation” between church and state by violating the First Amendment’s prohibition against an establishment of religion.
In its decision last December, the United States District Court for the Sixth Circuit held that Ohio’s voucher program violated the First Amendment’s establishment clause.1 The court found that the program unconstitutionally promoted religion because it encouraged direct government funding of parochial school tuition. Although the statute permitted the use of vouchers for public and nonsectarian private schools, most of the schools that received vouchers were sectarian because participation in the program was limited to schools in which tuition was no more than $2,500. As a result, 96 percent of the students who received vouchers attended parochial schools. While a handful of private nonsectarian schools participated in the program, no public schools participated.
“Practically speaking,” the court explained, “the tuition restrictions mandated by the statute limit the ability of nonsectarian schools to participate in the program, as religious schools often have lower overhead costs, supplemental income from private donations, and consequently lower tuition needs.”2 The court found that approval of the program would result in “the actual diversion of government aid to religious institutions in endorsement of religious education,” since “it is unquestioned that these institutions incorporate religious concepts, motives, and themes into all facets of their educational planning.”3
The Ohio court’s ruling is consistent with a recent decision of the Supreme Court of Maine that upheld Maine’s exclusion of religious schools from a voucher program on the ground that their inclusion would violate the federal establishment clause.4 Similarly, the Supreme Court of Vermont has held that a state voucher program violated the state’s establishment clause.5 The Supreme Court of Wisconsin, however, has held that Milwaukee’s voucher program did not violate the First Amendment’s establishment clause.6
Although the U.S. Supreme Court declined to hear appeals of the Maine, Vermont, and Wisconsin decisions, the festering controversy over the constitutionality of school vouchers has led to widespread speculation that the Court will hear an appeal from the Ohio ruling. The Court’s growing solicitude for government aid to parochial schools in recent decisions makes the outcome of such a decision uncertain. In particular, the Court has allowed state and federal governments to provide material and equipment to parochial schools,7 has upheld a federal program under which public school teachers provided remedial education to parochial school students,8 and has permitted a public school district to provide a sign-language interpreter to a deaf student in a parochial school.9
Each of these decisions was decided by margins of five-to-four, indicating that the Court’s decision in a voucher case might be very narrow. The outcome hinges in part upon the particular manner in which the voucher plan is framed, since this could determine whether the Court would regard the vouchers as a form of direct aid to parochial schools or as indirect aid, insofar as parents had the discretion to decide whether to use the voucher for a sectarian or a nonsectarian school.
Constitutional Challenges
The election of President Bush has increased the possibility that a voucher program would survive a challenge in the U.S. Supreme Court—since Bush is more likely to nominate justices who favor vouchers. In particular, Bush may have an opportunity to appoint a successor to 81-year-old John Paul Stevens, who has been one of the Court’s most ardent opponents of aid to parochial education. Vouchers are therefore likely to emerge for the first time as an issue in the Senate confirmation process when the next Justice is nominated.
Even if vouchers survived a federal constitutional challenge, however, vouchers in many states would face state constitutional obstacles. Other states might join Vermont in finding that vouchers violate state establishment clauses, particularly since many states enforce their establishment clauses more rigidly than do the federal courts. Moreover, many state constitutions contain significant prohibitions against public funding of sectarian schools. Other state constitutional provisions might create similar legal impediments. For example, a Florida court last year held that Florida’s voucher plan violated a state constitutional provision that requires the state to provide “a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.”10 A three-judge appellate court later reversed this ruling,11 and the issue presently is on appeal before the Florida Supreme Court.
In addition to denying that vouchers violate the state or federal constitutions, many proponents of vouchers argue that vouchers help parents exercise their constitutional right to direct the upbringing of their children, and some argue that vouchers remove an impediment to the free exercise of religion guaranteed by the First Amendment. Voucher advocates base these arguments upon the Supreme Court’s 1925 decision in Pierce v. Society of Sisters, in which the Court nullified an Oregon statute that required all children to attend public elementary schools.12
In striking down the statute, the Court declared that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional responsibilities.” This right is meaningless, some voucher advocates argue, unless parents are provided with the economic means to send their children to private schools, including religious schools.
Such reliance upon Pierce is misplaced.
Although Pierce permits parents to send their children to a properly accredited non-public school, the Constitution does not compel the state to pay for any form of private education, and as we have seen, it actually might prohibit the state from paying for parochial education. While the Supreme Court in several instances has removed financial impediments to the exercise of fundamental rights, the Court has held that the government has no obligation to provide funding to facilitate the exercise of a fundamental right. Similarly, the Court has made clear that the government’s failure to subsidize a fundamental right does not constitute a penalty to direct their children’s education, because the Court has denied (unfortunately, in my opinion) that education is a fundamental right.13
Moreover, vouchers have only a remote connection to the parental rights and interests that Pierce protects.
Although the Pierce decision did not address the religious dimensions of Oregon’s compulsory public education law, freedom of religion was at the heart of the Pierce case. Oregon’s compulsory public education statute, which would have had the effect of destroying private education, was opposed by a broad range of religious groups that operated parochial schools, including Episcopalians, Lutherans, Roman Catholics, and Seventh-day Adventists.
Likewise, the Oregon statute threatened the cultural identity of ethnic Oregonians since religion and culture were closely linked in many parochial schools. The Court’s ruling that parents had a fundamental right to choose the schools their children attended therefore constituted a critical landmark in judicial respect for religious freedom and cultural pluralism.
Parental Choice?
In contrast, the parental autonomy that proponents of vouchers claim that vouchers would promote bears no direct relation to the protection of religious beliefs or the preservation of cultural identity. Instead, the voucher movement seems motivated primarily by economics, insofar as its original goal is to enable parents whose children attend substandard schools to obtain a better education for their children by giving them money to transfer to a private school.
While some parents may wish to remove their children from the violence and lewdness that pervades some inner city schools, economics remains the driving force of the voucher movement. Although school vouchers may help to promote the type of parental autonomy that Pierce envisioned, there is a critical constitutional difference between forcing parents to send their children to public school and denying parents public assistance to send their children to private schools, particularly when such assistance would provide what several courts could have regarded as an unconstitutional benefit to religious institutions. It is sadly ironic that voucher proponents are trying to use Pierce, which did so much to promote the free exercise of religion, to facilitate a policy that could violate the establishment clause.
Indeed, vouchers could actually interfere with free exercise of religion, insofar as they could enable government to exercise greater control over parochial education.14 The availability of public funds also might diminish the willingness of parents to support private and parochial schools. Parochial schools should not permit vouchers to interfere with the spiritual integrity of the institutions that parents and churches of the 1920s fought so valiantly to protect from destruction when they opposed compulsory public education.
Vouchers also seem to contravene Pierce insofar as they interfere with the delicate balance between public and private education that lies at the core of that decision. Although the Court in Pierce implicitly rejected the absurd contention of proponents of compulsory public education that private schools threatened the existence of public schools, the Court emphasized that the states could regulate private schools in order to ensure that they were pedagogically and politically sound.
Today, some proponents of vouchers seem as hostile to the very concept of public education as advocates of compulsory public education during the 1920s were toward private education. Rather than seeking to improve public education, the voucher movement seems premised on the theory that many public schools are hopelessly underfunded and debauched. Ironically, vouchers could exacerbate the deterioration of such schools insofar as vouchers could drain funds from already impoverished schools. Students for whom vouchers were unavailable or whose parents chose not to use vouchers would find themselves trapped in schools that truly would have become hopeless.
Another Alteration
Since there is little doubt that most proponents of vouchers are sincere in their desire to promote educational opportunity for disadvantaged children, voucher advocates could more constructively pursue this goal by attempting to improve the quality of public schools. Bush’s educational reform proposal, of which vouchers are only a small part, would make major strides toward this end, insofar as it includes many constructive features, including increased use of standardized testing, greater latitude for states in spending federal funds, and increased funding for reading programs, and after-school care. There is some speculation that Bush’s voucher program is merely a negotiating chip that Republicans might sacrifice in exchange for Democratic support for these other educational reforms. Indeed, within weeks the new administration was downplaying vouchers by using other terminology and even avoiding the issue. But the voucher concept remains so integral to the overall Bush plan that it is doubtful that it will vanish. In fact, after continuing criticism of the new White House Office of Faith-Based Initiatives there was even talk of voucherising aid to church social programs.
Although the demise of Bush’s federal voucher proposal would not end the movement for state support of vouchers, opponents of vouchers have reason to remain hopeful that courts would maintain the integrity of the First Amendment’s establishment clause by barring the use of vouchers for tuition at religiously sponsored schools.
FOOTNOTES
1 Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000).
2 Ibid., p. 959.
3 Ibid., pp. 960, 961.
4 Bagley v. Raymond School Department, 728 A.2d 127 (Me. 1999), cert. denied, 120 S. Ct. 364 (1999).
#5 Chittenden Town School District v. Department of Education, 738 A.2d 539 (Vt. 1999), cert. denied sub nom. Andrews v. Vermont Department of Education, 120 S.Ct. 626 (1999).
#6 Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), cert. denied, 525 U.S. 997 (1998).
7 Mitchell v. Helms, 120 S.Ct.2530 (2000).
8 Agostini v. Felton, 521 U.S. 203(1997).
9 Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).
10 Holmes v. Bush, 2000 WL 526364 (Fla. Cir. Ct.), reversed, 767 So. 2d 668 (Fla. App. 1 Dist. 2000).
11 767 So. 2d 668 (Fla. App. 1 Dist. 2000).
12 268 U.S. 510 (1925).
13 See Plyler v. Doe, 457 U.S. 202 (1982); San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973).
14 See Barry W. Lynn, “The Poisoned Chalice,” Liberty, September/October 2000, pp. 16-22.
William G. Ross is a professor of law at the Cumberland School of Law at Samford University in Birmingham, Alabama.
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