Over the past decade, several states have begun programs to give parents expense vouchers to help pay tuition at private schools, including religious schools. Do such payments constitute direct state aid to religion in violation of the establishment clause of the First Amendment? This question is at the heart of one of the longest-running church-state debates in U.S. history.

Both opponents and proponents of voucher programs have worked diligently to express their views. Below are common arguments raised by participants in this culture-war battle.

Arguments against vouchers
Voucher opponents contend vouchers are both unconstitutional and poor policy. Their arguments include:

• Vouchers will harm public schools by taking the best students, with the most involved parents, out of public schools. This exodus will leave only the most difficult-to-educate children, including special-education students and students with discipline problems. Opponents note that because private schools are not required to take all students, as public schools are, only top students have any real choice. Thus public schools are left with the most-expensive-to-educate children — whom they must now educate with fewer resources.

• Pulling money from public schools will retard “real” school reform, such as smaller class sizes and better resources. Opponents argue that most American youths attend public schools, and school reform should therefore focus on making the public schools better.
• The community will become “Balkanized,” as students and families segregate themselves into homogeneous enclaves. A divided and suspicious society will result, as students will not have the opportunity to interact with others who are different in a safe and educational environment.
• Providing funding to religious schools violates the principles of the First Amendment’s establishment clause as set out in historical documents of the Founding Fathers and Supreme Court jurisprudence, such as Everson v. Board of Education (1947).
• While most voucher proposals are based on claims that vouchers allow students trapped in underperforming schools a choice at a better education, the reality is that vouchers don’t cover full tuition at most private schools.
• Studies reportedly demonstrate that private school students perform no better than their public school counterparts.

Arguments for vouchers
Voucher proponents are motivated by a variety of interests, though they are generally united in their criticism of and displeasure with the state of public education.

Some argue that vouchers are an acceptable, and needed, type of educational reform. Their arguments include:

• Vouchers encourage free-market pressures in education, just as in the business sector. These pressures force public schools to perform more efficiently and effectively in order to compete with private schools.
• Vouchers allow parents the freedom to decide where their children can receive the best education, and enable parents to choose schools where their values and ideals are taught and exemplified.
• With vouchers, parents who are concerned about the safety and quality of public schools have other options for educating their children.
• To restrict religious schools from voucher programs amounts to discrimination against religious points of view and limits the free exercise of religion. This argument is based on the idea that excluding religiously affiliated organizations from government programs that are open to anyone else is discriminatory.

These arguments, from both sides of the debate, focus chiefly on questions that are primarily policy issues to be debated in communities through the political process. But before that process can begin, a more foundational First Amendment question must be answered: May parents use publicly funded vouchers for tuition at religious schools without violating the establishment clause?

First Amendment concerns
In the 1947 case of Everson v. Board of Education, Justice Black penned one of the foundational standards for future establishment-clause jurisprudence. “The ‘establishment of religion’ clause of the First Amendment means at least this… . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” On its face, the language in this case set the wall separating religion and government very high, forbidding direct government funding to religious institutions, including religious schools. It should be noted that while the majority opinion in Everson set a stringent standard, five justices found that the facts in the case did not violate this principle. They held the program in question provided transportation assistance to the children, not the school. Since the benefit flowed to the individual instead of the religious institution, no establishment-clause violation occurred.

In the decades that followed, language from this decision became ubiquitous in establishment-clause cases over public funding for religious schools. Courts held closely to the idea that government money or aid cannot flow directly to religious schools. This early understanding of establishment clause restrictions relied heavily on the writings of Thomas Jefferson and James Madison.

As the makeup of the Supreme Court and social situations changed, establishment-clause jurisprudence evolved. Deviating from the “no direct aid” construct of the Court in the 1950s through the 1970s, opinions began to focus not on the religious character of the recipient, but on what criteria regulated participation in a government program. By the 1990s, four members of the Court were focused primarily on whether a government program provided neutral, even-handed criteria in determining who gets aid.

Current controversy
With these two seemingly opposing views of the establishment clause in place, the battle over vouchers was set. In the fall of 2001, the debate came to a head when the Supreme Court took the case of Zelman v. Simmons-Harris, a dispute over a voucher program in Cleveland.

Zelman v. Simmons-Harris
In the 1990s, the Cleveland public schools reached such a state of disrepair and dysfunction that a federal judge required the state of Ohio to assume administration of the district. In 1995, the state proposed several initiatives for Cleveland schools. Among these proposals was the idea of providing students with a voucher for use at any participating private or public school. The following year, lawsuits were filed over allowing religious schools to take part in this program. After working its way through the appeals system, this controversy was granted review by the Supreme Court in 2001.

The case brought together a bevy of strange bedfellows, and the resulting 34 briefs filed showed the range of ideological differences among the organizations involved. As pro-voucher scholars Nicole and Richard Garnett aptly observed of the new alliances, “The politics of education reform are a mystery. Millionaire businessmen and conservative activists invoke civil rights ideals to demand equality, freedom, and diversity in education — while liberals join union bosses and anti-religious activists in support of a government monopoly. Strange days indeed, when the NAACP’s and ACLU’s opponents are black schoolchildren singing ‘We Shall Overcome’ on the courthouse steps.”

Zelman also managed to highlight the clash of paradigms over the appropriate relationship between government and religious bodies, and the establishment clause’s role in defining this relationship.

The resulting opinion found a divided Supreme Court ruling 5-4 that the Cleveland voucher program was constitutional. Five members of the Court, led by Chief Justice William Rehnquist, observed that the vouchers were given to parents — not schools — who were able to use the voucher at any school participating in the program. Coupling that fact with the religion-neutral criteria both parents and participating schools met, the majority found the voucher program constitutional. Rehnquist summed up the analysis, this way:

“[T]he Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”

Justice Sandra Day O’Connor wrote a concurring opinion emphasizing the importance of neutral criteria and that the choice of aid recipient was made by parents. Justice Clarence Thomas’s concurrence took a different turn, focusing on civil rights issues involved in allowing poor and minority students the same choice in private education that is available to wealthier students.

The other four members of the Court held to more traditional concepts, arguing that government must not aid religious bodies, as described in the Everson decision, and that neutrality and free choice must be examined within the context of how the program manifests itself. They were unpersuaded by the appearance of neutrality in the program, finding that the overwhelming number of religious schools taking part in the program created both the perception and the reality of a government preference for religious schools. Justice David Souter concluded by pointing out how the majority’s approach violated the principles of the establishment clause, as well as precedent: “It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme, but something has to be said about the enormity of the violation.”

Coming up: state actions
While the Supreme Court’s majority opinion provided the blueprint for creating voucher programs that are acceptable under the federal Constitution, state courts must now examine voucher programs in light of their own state constitutions.

Many states, especially those in the West, have Blaine Amendment-style provisions in their constitutions that require strict separation on matters of public funding for religious groups.¹ Often, these provisions are holdovers from the 19th century that were inspired by anti-Catholic and anti-immigrant sentiments.

Many state constitutions also include much older funding restrictions know as “compelled-support” provisions, which arose in the late 18th century in response to the Colonial-era practice of mandatory church attendance and required support for a colony’s established church. The provisions generally state that no one shall be compelled to attend or support a religious ministry without his or her consent.

In total, 29 states have compelled-support language, and 37 state constitutions mirror the language of the Blaine Amendment. While some constitutions contain elements of both, only three states, Louisiana, Maine and North Carolina, have constitutions that include neither.

School-voucher advocates have advanced three methods for circumventing these obstacles: state constitutional amendments, federal lawsuits and narrow interpretations of state constitutional provisions.

In 2000, voucher ballot proposals in Michigan and California were defeated by huge margins. According to a report by the People For the American Way Foundation, there were 12 attempts to pass voucher or tuition-tax credit ballot initiatives from 1970 to 2000 in eight states. Voters in each state rejected the measures by wide margins, according to the report. These defeats demonstrate the difficulty voucher proponents face in amending state constitutions.

Turning from state constitutional amendments, voucher advocates believed federal challenges were more likely to be successful. However, that outlook changed after the Supreme Court’s ruling in Locke v. Davey.

Locke v. Davey was seen by voucher supporters as the case that would remove the last remaining obstacles to school-choice programs around the country. While Zelman made school vouchers acceptable under the establishment clause, Davey had the potential to go a step further by requiring that religious groups be funded any time a state or local government made funds available for private secular groups. In addition, a single federal decision would eliminate the sting of Blaine Amendments or compelled-support provisions in every state constitution.

Davey involved a scholarship program offered by the state of Washington. The program offered financial assistance to underprivileged, academically gifted students pursuing degrees at eligible post-secondary institutions, including religious schools. However, the scholarship excluded any student seeking a degree in devotional theology. The plaintiff in the case sued, arguing that exclusion of devotional theology majors violated his free-exercise rights. The Supreme Court, however, ruled in favor of the state. In doing so, the Court sidestepped principles of equal protection and neutrality between religion and nonreligion that voucher proponents were hoping would provide a victory in the case.

The holding in Davey was limited to the scholarship program in question, and there certainly are differences between post-secondary scholarships and school vouchers. However, it seems challenging Blaine Amendments on federal constitutional grounds is less likely to be successful after the Court’s ruling. This decision widened the gap where states could define limits of religious freedoms without offending the establishment or free-exercise clauses. This stretching of the “play in the joints” between the clauses allows states greater leeway to define for themselves how to treat religious questions without federal interference. In 2007, for example, a Colorado federal district court relied primarily on Davey in upholding the exclusion of “pervasively sectarian institutions” from its tuition-assistance programs for low-income students attending colleges and universities in the state.

The Court post-Davey seems less likely to overturn a state provision that does not show direct animus toward religion. While it is possible that Blaine Amendments originally showed animus, it is unlikely the Court would find such hostility in the amendments today, as their meaning has likely changed. Moreover, to avoid this difficult determination altogether, courts might simply refuse to read state provisions as Blaine Amendments, as the Court did in Davey.

Conversely, while state courts might not strike down Blaine Amendments based on discriminatory history, past animus may be enough to encourage a narrow interpretation of the provisions. The Arizona Supreme Court cited such animus as a factor that undermined the validity of its state’s Blaine Amendment.

Another approach voucher proponents could use to limit the effect of Blaine Amendments is to argue that the provisions were created as nothing more than state establishment clauses and, as such, should be interpreted identically to the federal establishment clause. In demonstrating this point, scholars have noted that the 44th Congress, which was in session when the federal Blaine Amendment was introduced, did not believe that the federal establishment clause applied to the states.

Encouraging narrow rulings of constitutional provisions by state courts has been the most successful strategy for voucher advocates. This method is the most painstaking of the three methods because each state’s Blaine Amendment must be attacked individually. This means not every state will interpret its constitution the same, and there most likely will not be conformity among the states.

On the other hand, this strategy has already proved successful in a number of states. In 1999, the Ohio Supreme Court ruled in a case involving that the state’s Blaine Amendment, which states that “no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.” In that case, Simmons-Harris v. Goff (which involved one of the Zelman plaintiffs), the justices ruled that a Cleveland voucher program did not violate the Blaine Amendment because funds would only reach religious “sects” through parents’ independent choice. Similarly, the Wisconsin Supreme Court in 1998 in Jackson v. Benson strictly construed the following constitutional provision: “nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.” The court found that the phrase “for the benefit of” was not violated by a Milwaukee voucher program because it produced only incidental, not direct, benefits.

By one count, there are currently 13 states that, in accordance with the Supreme Court’s analysis of the First Amendment in Zelman, have interpreted their constitutions’ religion clauses to be permissive toward voucher programs. Of the 37 other states, 19 interpret their constitutions to be more restrictive than the First Amendment, and the interpretation of 18 state constitutions remains uncertain.

Despite the difficulties they face, voucher proponents are now taking the debate to state legislatures. In 2007, Utah passed perhaps the most sweeping voucher program. While it provides a modest $500 to $3,000 for current public school students to attend private schools, the voucher program will be available to all kindergartners. So by 2020 every private school student in Utah will be eligible for voucher support. However, the Utah Supreme Court recently ruled that a referendum was necessary to give the universal voucher program legal effect.

Updated July 2007.

Notes