IPA Public Policy Library

Introduction

A discussion of the constitutional issues of church-state separation relating to vouchers…and other forms of school choice is rather straightforward.  At its core is a simple question: whether the Establishment Clause of the First Amendment of the U.S. Constitution proscribes any government support for religious individuals or institutions whatsoever, or seeks only to ensure that "the state" neither endorses religion over non-religion nor favors a particular religion over another nor coerces religious observance by any citizen.  The Supreme Court's Establishment Clause jurisprudence over the past several decades, clearly indicate that the Establishment Clause should not be read to hamper the abilities of religious individuals or institutions to enjoy the same rights and benefits afforded to other citizens because of their affiliation with a religious faith.  In short, that the Establishment Clause is not intended to penalize religion, but to protect it.

The Prototypical Voucher Program

Before turning to decision rendered by the Court that relate to the issue, it is important to note how voucher programs are structured and what, from the perspective of the government, they are designed to achieve.  The prototypical voucher proposal would work as follows: Suppose the Smithtown Public School District the per pupil allocates $4000 per pupil to the schools in its system.  Parents would be given a voucher in the amount of $4000 per school age child that will "follow each child" to the school the parent selects to sent him/her to.  If the parents choose to send their son to Smithtown High School, S.H.S. get the $4000, if the parents decide to send their son to private Smith Preparatory School for Young Men, it gets the $4000, and if the parents decide to sent their child to the Smithtown Yeshiva, it gets the $4000.   Thus, the determination of whether the government funds "embodied" in the voucher go to a public, private of parochial school is vested in the hands of the parents

The policy goal underlying all voucher proposals is to improve the quality of education that children in the United States receive.  The mechanism that proponents seek to utilize through voucher plans is free market competition.  In short, voucher proponents believe that schools ought to "earn" their funding (derived from citizen paid taxes) by satisfying their "customers" (parents and children).  If public schools do their job well they will retain their students; if a private or parochial school does a better job, the public school[1] must improve or lose its "market share." 

Additional considerations that motivate voucher proponents are providing equal opportunity to lower income families to make the "same choices" to choose among the same schools that well-to-do parents do on an annual basis, and to provide a vehicle for motivating greater parent participation in their child's school experience.

Precedents of the U.S. Supreme Court

While an actual voucher program has not yet reached the U.S. Supreme Court for review, an examination of the Court's decisions in other cases that have challenged various education related programs on Establishment Clause grounds suggests that the Court would, without much difficulty, hold that voucher programs are constitutional.  The most recent precedent that indicates this result is the Court's decision in Agostini v. Felton.[2]  There, the Court was asked to reverse a 1985 decision in which it held that a program that sent public school teachers into parochial schools to provide special education classes was a violation of the Establishment Clause.  The Court did reverse the decision and, relying on earlier precedents, held that the program was constitutional because the benefit afforded to parochial school students were "made available generally without regard to the sectarian nonsectarian or public nonpublic nature of the institution benefited…"

In its Agostini decision the Court approvingly relied on several precedents that, essentially, stand for a simple proposition: the Establishment Clause does not bar religious individuals or institutions from participating in government programs and receiving government benefits so long as the criteria to qualify for the benefit are neutral toward religion and the religious individual or institution meet those criteria.  In short, that religious individuals and institutions should be treated equally with other institutions.[3

The Court has said as much in several education assistance cases.  In 1973, the Court struck down a New York statute that provided tuition tax credits for the parents of parochial school students.  The Court found this to be an Establishment Clause violation because the credit was available only to parents of nonpublic students.[4]  Since that ruling the Court has consistently upheld programs that provide benefits or assistance to parents of all schoolchildren, including those who attend parochial schools, so long as the benefit is equally provided to all families on the basis of neutral criteria.

In 1983, the Court held that a Minnesota statute that permitted parents to deduct from their taxes expenses incurred in providing "tuition, textbooks and transportation" for elementary and secondary schoolchildren was consistent with the Establishment Clause.  The Court stated that "public assistance made available generally without regard to the sectarian-nonsectarian…of the institution benefited {does} not offend the Establishment Clause."  Moreover, the Court noted that "under Minnesota's arrangement, public funds become available [to sectarian schools] only as a result of numerous private choices of individual parents."

This rationale controlled the Court's determination that a program providing tuition assistance to handicapped college students that included parochial schools were constitutional, Witters v. WA Dept. for Blind,[5] and the ability of a deaf student to bring his state provided sign-language interpreter to his parochial school.  Zobrest v. Catalina Foothills Sch. Dist..[6]

It is clear, from this brief review and the above outline of the prototypical voucher program that such plans pass muster under Establishment Clause.  The vouchers are made available on the basis of neutral criteria to the parents of all schoolchildren whose private decisions determine whether public dollars are received by parochial schools.

State Constitutional Consideration

It has long been noted by the supreme courts of various states (and the U.S. Supreme Court as well) that state courts are free to construe state constitutions as providing different or greater constraints upon government action than those founded in the U.S. Constitution.  Thus, state constitutional provisions that are analogs to the Establishment Clause are relevant to this discussion.  Most state constitutions contain provisions that are, frequently, more elaborate and flowery renditions of the Establishment and Free Exercise clauses.  Nonetheless, it is often the case that the state courts have construed the protections afforded by those provisions to be "coextensive" with those found in their federal counterparts.[7]

Thus, in most instances, a state constitutional analysis will tack the above outlined Establishment Clause analysis so long as it is grounded in the state analog to that Clause.

It is the case, however, that some state constitutions have specific provisions that speak to the issues of educational funding, public money and the role of sectarian schools.  Thus, for example, Wisconsin's Constitution states:  "nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."[8]  California's Constitution states:  "No public money shall ever be appropriated for the support of any sectarian or denominational school, or any schools not under the exclusive control of the officers of the public schools…"[9]

The argument that suggests that voucher programs are valid even under these state constitutional provisions relates, again, to the fact that the vouchers are provided to the parents and it is their private choices that determine whether funds are ultimately received by sectarian schools.  Thus, state courts could choose to follow the rationale of the Supreme Court and interpret the above provisions as not applying to voucher programs since the funds are not per se appropriated for the support of sectarian schools but for the support of parents and their children's education.  To date, Wisconsin and Ohio’s supreme courts have upheld their voucher programs as constitutional.

Conclusion

The discussion of the constitutional issues surrounding voucher programs can be (and, no doubt in the context of several litigations now underway around the country, will be) written about extensively.  An examination of the historical evidence surrounding the drafting and ratification of the Constitution's religion clauses and the many years of legal scholarship and Supreme Court opinions with regard to the relationship between religion and state in the United States is relevant, informative and, to some, even interesting.  In the interests of brevity, however, this memorandum has sought to put the central issue before you for consideration - whether the Establishment Clause demands that religion be treated unequally among the many other kinds of "belief systems" that Americans are free to choose or reject.  The clear trend in Supreme Court doctrine is that the Constitution sought to protect religion, but not to disable it.  Thus, properly constructed vouchers programs are constitutional.

Notes

Union of Orthodox Jewish Congregations of America
Institute for Public Affairs

Prof. Richard Stone, Chairman
Nathan Diament, Director
Betty Ehrenberg, Director, International Affairs & Communal Relations

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