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Are school vouchers constitutional?
by Frank R. Kemerer , Kimi Lynn King The authors identify emerging judicial perspectives regarding the constitutionality of school vouchers under both federal and state laws and discuss the factors that predispose a court to look with favor on a voucher program. "I'd rather go to jail!" cries Joanne Curran, a divorced mother of four. "This is the Armageddon!" shouts another angry advocate.(1) Is this impassioned rhetoric about the latest controversy surrounding abortion or gun control? No, these are battle cries over school vouchers, funded by the state, that parents may "cash in" at public or private schools of their choice. Growing popular support for the use of school vouchers has polarized views about whether such programs are valid policy options and hardened the lines on both sides of the debate. The clamor peaked last August when the Wisconsin Supreme Court issued a temporary injunction against the expansion to religious schools of the only public voucher program that has come into full operation. It was that court's action that triggered the angry outcry of parents favoring vouchers in Milwaukee. Voucher initiatives have been proposed in the District of Columbia and in such states as California, Colorado, Illinois, Minnesota, Pennsylvania, and Texas. Measures have been passed in Wisconsin, Puerto Rico, and Ohio. In March 1995, Sens. Dan Coats (R-Ind.) and Joseph Lieberman (D-Conn.) introduced the Low-Income School Choice Demonstration Act (S. 618), which would allocate $30 million in federal funding to pay for 10 to 20 voucher projects enabling low-income families in inner-city school districts to send their children to private schools, including those that are sectarian. Proponents believe that, if parents are free to choose the schools their children attend, then schools will be more competitive, students' academic capabilities will increase, and parents will be more active in their children's development. Critics question whether parent involvement or student achievement will increase and contend that a market-based education system will undermine the public schools, promote social stratification, and violate the separation of church and state. Regardless of the merits of publicly funded vouchers, the constitutionality of such a system is a central concern, because approximately 85% of private schools are religiously affiliated. In this article we will identify emerging judicial perspectives regarding the constitutionality of school vouchers under both federal and state laws and discuss the factors that predispose a court to look with favor on a voucher program.(2) The controversy over voucher programs is more complicated than the question of governmental establishment of religion. It involves many other issues that we hold dear - parental rights, freedom of religious exercise, and the role of the state in fostering an educated citizenry. Constitutionality Under Federal Law In 1925 the U.S. Supreme Court ruled that parents have the right to send their children to a private school in lieu of a public school.(3) The Court did not, however, address the issue - which has been a problem ever since - of whether public funding could be used to help parents exercise that right. Without the funding to pay tuition at private schools, which are becoming increasingly expensive, the right to send one's children to them is really an empty promise for many parents. Tension over how to balance the private rights of religious freedom and educational choice without at the same time establishing religion is really nothing new.(4) The issue first surfaced for the Supreme Court as it considered a state program that allowed school districts to reimburse parents whose children rode public transportation to religious schools. The 5-to-4 Everson v. Board of Education decision (1947) held that New Jersey could expend the funds because the program also reimbursed pupils attending public school and thus was really a neutral state effort to enable students to get to and from schools safely.(5) In the two decades that followed, the Supreme Court was faced with multiple challenges to state efforts to aid private religious schools or to incorporate religious activities into public schools. In a series of cases the Court erected a high wall separating church and state. Ultimately, the Lemon v. Kurtzman decision (1971) established a three-part test for determining whether government actions violated the establishment clause.(6) The Lemon guide fines require government action affecting religion to have: 1) a secular legislative purpose, 2) a primary effect that neither advances nor inhibits religion, and 3) no excessive entanglement between the state and religion. If a program violates any one of the tests, it must fail. In recent years, the justices have debated the value of Lemon and have resolved establishment clause cases without using the test at all.(7) A voucher plan may give the Court the opportunity to announce whether the Lemon guidelines have any continuing force. In 1973 the Court invalidated a voucher-like tuition reimbursement program that enabled children from low-income families in New York to attend private schools, most of them Catholic. However, in an often overlooked footnote in Committee for Public Instruction v. Nyquist, the majority commented that aid to private religious schools might be permissible if monies were "made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted" (emphasis added).(8) In other words, if state funding were available for a whole range of public and private schooling, the constitutional outcome would be different. This commentary foreshadowed the Court's seminal ruling in Mueller v. Allen a decade later. In Mueller v. Allen (1983), the Court upheld, by a 5-to-4 margin, a Minnesota law that allowed parents to claim tax deductions for tuition, textbook, and transportation expenses for children in both public and private schools. Justice Rehnquist's majority opinion noted that the strictures of the establishment clause did not encompass this kind of "attenuated financial benefit, ultimately controlled by the private choice of individual parents, that eventually flows to parochial schools."(9) The justices voting with the majority were not troubled that most of the benefits accrued to parents of children in parochial schools. Two more recent cases have built on the Mueller reasoning. In Witters v. Washington Department of Services (1986), a unanimous Court held that a state could provide funds for vocational rehabilitation services to a blind student pursuing studies at a Christian college to become a minister.(10) The Court emphasized that, if aid is given to the student, who then chooses to spend it at a public or private sectarian school, the money is not an impermissible state endorsement of religion. It is uncertain whether this reasoning could be applied to school voucher programs, because the Court has distinguished higher education from primary and secondary schools.(11) Nonetheless, the Court relied on this "choose to use" reasoning in a case that signals Supreme Court support for parochial aid. While the program passed muster under the federal Constitution, the Court returned the case to the Washington State Supreme Court for a determination of its constitutionality under the state constitution. As noted below, the Washington high court later declared the aid program unconstitutional. Zobrest v. Catalina Foothills School District (1993) addressed whether a school district is barred from providing a sign-language interpreter, under the Individuals with Disabilities Education Act (IDEA), to a deaf student attending classes at a Roman Catholic high school.(12) The 5-to-4 ruling noted that such "pupil benefit" services do not violate the establishment clause. For the Zobrest Court, handicapped children, not sectarian schools, were the primary beneficiaries of the program. In keeping with the Mueller reasoning, the majority pointed out that there would be no constitutional issue at all "if the IDEA funds instead went directly to [the student's] parents, who, in turn, hired the interpreter themselves." While the dissenters were concerned about state provision of the sign-language interpreter, they too acknowledged that public monies used to finance private choices do not create an inference that the government endorses religion. Part of the tension for the Supreme Court has been balancing the establishment clause's prohibition on government support with the free exercise clause's affirmation of religious freedom. Legislators must walk a thin line between the dual mandates of the First Amendment, and some scholars and judges have asserted that, when there is a conflict between the two clauses, the free exercise clause should be given priority.(13) A review of the key cases suggests that a publicly funded voucher program encompassing private religious schools is more likely to be upheld in federal court if the money is in the form of a scholarship going directly to parents, if parents have a wide choice of public and private schools, and if no preference is given to private religious schools. Plans that channel money to schools rather than to parents are particularly susceptible to attack on constitutional grounds. Speculating on how the U.S. Supreme Court might rule in such a case is risky. However, as already noted, the Court has shown increasing support for an ideological perspective that is more accommodating toward religion. Prior rulings suggest that five and perhaps as many as seven members of the Court have expressed at least some support for government funding that meets the conditions described.(14) Constitutionality Under State Law Courts in five states (Massachusetts, New Hampshire, Vermont, Washington, and Wisconsin) and the Commonwealth of Puerto Rico have considered challenges to primary and secondary school voucher plans. While the prevailing pattern has been to declare them unconstitutional, there are two exceptions. This inconsistency can be attributed to differences in the wording of constitutional provisions, variations in the design of voucher programs, and distinct judicial perspectives. Thus in some states voucher plans may be unconstitutional - but not in others. The following review illustrates the point. In 1970 and again in 1987, the Supreme Judicial Court of Massachusetts unanimously advised the state legislature that voucher plans then under consideration would violate the state constitutional provision providing that no grant, appropriation, or use of public money or property or loan of public credit shall be made or authorized by the commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding ... any ... school ... or educational ... undertaking which is not publicly owned and under the exclusive control, order and superintendence of public officers or public agents authorized by the commonwealth or federal authority or both.(15) The 1987 measure was a tax deduction plan similar to the one upheld by the U.S. Supreme Court in Mueller v. Allen. In 1973 the Washington State Supreme Court unanimously ruled that a state program that gave individual grants to disadvantaged students seeking matriculation at public or private schools of their choice violated a state constitutional provision stating, "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."(16) More than 90% of the grant funds had been designated for Catholic schools. The court noted that the state constitutional stricture is more rigorous than the establishment clause of the First Amendment. When the U.S. Supreme Court remanded Witters to the Washington State Supreme Court in 1986, it indicated that the state court could apply its own constitutional limitations. The Washington high court did so and in 1989 declared the aid program (under which the blind seminary student had received state funds) unconstitutional, a decision the U.S. Supreme Court later refused to review.(17) The 5-to-4 state decision found no intrusion on the free exercise of religion because denial of aid did not pressure students to violate their religious beliefs. "We hold," the majority wrote, "that when a person 'is getting a religious education,' to use the words of his attorney, that person comes squarely within the express prohibition contained in the Constitution of Washington that '[no] public money ... shall be appropriated for or applied to any religious ... instruction.'" The dissent noted that the funds went to individuals, not to private schools, and that religious freedom should be supported. The difference of views illustrates disagreement among judges about how to strike the balance between separating church and state and protecting religious freedom. Tension between federal and state constitutional law is reflected in two other state court decisions. A New Hampshire Supreme Court advisory opinion issued in 1992 indicated that proposed legislation to require public payment of up to 75% of tuition for students attending private schools would violate the state constitution because there were no safeguards to prevent the flow of public funds to sectarian institutions.(18) However, in 1994 the Vermont Supreme Court reached the opposite conclusion with regard to a similar program in that state.(19) The Vermont case was argued on the basis of the federal, not the state, Constitution because prior case law held that the state provision was weaker than the First Amendment establishment clause. The Vermont decision is instructive because the court noted several program characteristics that diminished the church/state concern: 1) reimbursement went to the parent, not to the school; 2) the program did not distinguish between private and public school students; 3) sectarian reasons did not motivate the awarding of vouchers; 4) no substantial number of students were sent to private sectarian schools under the program; 5) state regulation of sectarian schools was minimal; and 6) the scheme did not operate to promote sectarian education. Citing the U.S. Supreme Court's precedents in Mueller and Witters, the Vermont Supreme Court upheld the plan. Whether giving publicly funded vouchers to parents rather than directly to schools attenuates the relationship between government and religion sufficiently to withstand constitutional challenge was the concern of the Supreme Court of the Commonwealth of Puerto Rico in a closely watched 1994 ruling.(20) The plan in question gave low-income parents a certificate to present to a private school. The school then took the certificate to the department of education for the reimbursement of educational costs up to $1,500. The court majority struck the plan down because it violated a section of the Puerto Rican constitution prohibiting use of public funds to support schools other than those operated by the commonwealth. While a private school is entitled to police and fire protection, wrote Justice Denton, it is "prohibited from receiving public services or assistance that support its educational mission." The dissenters accused the majority of ignoring the interests of poor people and of misreading the commonwealth's constitution. One dissenting justice pointed out that, because the benefits accrued directly to parents and their children, not directly to the schools, there was no unconstitutional "support" of private schools. It is clear from the different judicial opinions in these cases that the ideological positions of judges play an important role in the fate of school vouchers. This is especially true when judges opt not to follow U.S. Supreme Court precedent and have no prior state judicial precedent to rely on in interpreting relevant state constitutional provisions. The experience in Wisconsin exemplifies the struggle over implementing voucher programs. Initially, the voucher program provided monies for low-income families in Milwaukee seeking to send their children to nonsectarian private schools.(21) Thus in 1992, when the Wisconsin Supreme Court upheld the program by a 4-to-3 vote in Davis v. Grover,(22) religion was not an issue because only nonsectarian private schools were eligible to participate. The majority of justices observed that the program had been extensively debated as an experiment to address inadequate educational opportunities for disadvantaged children, and it had not been surreptitiously "smuggled through the legislature" in violation of the state constitution. Similarly, the court ruled that the program did not violate the uniform public school provision of the Wisconsin constitution because the private schools were not operated by public officials and because participants could always return to the Milwaukee public schools if they were dissatisfied. Nor was there such insufficient governmental supervision of the program as to amount to a violation of the "public purpose doctrine," a judicially created concept to ensure that public interests are served when money flows to private actors. Making sure that private schools participating in voucher programs are accountable to the public presents policy makers with a dilemma: too little regulation will not provide adequate accountability for the expenditure of taxpayer money; too much regulation threatens to make private schools quasi-public and to undermine the purpose of fostering alternatives to the public education system.(23) The majority on the Wisconsin high court also noted that the total amount to fund the program was inconsequential in comparison with overall state expenditures on public schools. That statement led dissenting Justice Shirley Abrahamson to conclude that any expansion of the program could fall victim to a successful constitutional attack. In July 1995 Wisconsin expanded the program to include about 80 private religious schools and increased the number of children who could participate from 1,000 to 7,000. Whether the expansion will prove Abrahamson right remains to be seen. This excursion through the case law suggests that voucher plans encompassing private religious schools are most likely to survive state constitutional challenges under the following conditions: * The state constitution does not prohibit expenditure of public monies for any form of private schooling. * The provision against establishment of religion in the state constitution does not foreclose the expenditure of public money on private sectarian schooling. * Funding is given to students' parents rather than to the schools. * The voucher program gives parents a wide range of public and private schools from which to choose. * The public purpose of the program - to improve educational opportunities for families - is clearly delineated. * Sufficient accountability measures are included to ensure that the public purpose is being served. * The state is not promoting sectarian interests. It is questionable whether the give-and-take of state politics will allow all the features to be met in most programs. Thus the constitutionality of voucher programs before state courts is much less certain than it is before federal courts. The Intersection Between Federal and State Law The intersection of federal and state law complicates the issue of constitutionality. First, a state plan may be upheld in federal court on a challenge issued under the First Amendment but then be returned to the state court for additional consideration of the plan's constitutionality under state law. If a state constitution is explicit in its restriction of any direct or indirect public expenditures for private schooling, then a voucher program will be struck down. If, however, a state constitution prohibits only direct expenditures but not incidental benefits that accrue as a result of parental choice, it may be possible for the voucher program to be upheld. Much will depend on how the judges interpret these state constitutional provisions, as the Puerto Rican decision demonstrates. The Wisconsin constitution, for example, prohibits drawing funds "from the treasury for the benefit of religious societies, or religious or theological seminaries."(24) Later this winter, it is anticipated that the Wisconsin Supreme Court will consider whether a proposed voucher system violates this provision. Under the proposed system, the state superintendent would allocate funds to a parent, and then the state department of education would send a check to a private school after the parent had restrictively endorsed it. The court is also likely to address whether confining parents to choosing only private schools and not out-of-district public schools constitutes impermissible advancement of religion. Any decision the court reaches is likely to be appealed to the U.S. Supreme Court. A federally funded voucher program would most likely be treated differently in state court. Even if a state's constitution prohibits the expenditure of funds for sectarian education, as Washington's constitution does, a federal plan may take precedence. This is because federal law is superior to both state statutory and constitutional frameworks, as required by the supremacy clause in Article VI of the U.S. Constitution. Under these circumstances, federal law would preempt state law unless Congress decided otherwise.(25) Another important factor to consider is the Religious Freedom Restoration Act (RFRA), passed by Congress in 1993 to increase support for the free exercise of religion.(26) RFRA provides that, if government substantially interferes with religion, it must demonstrate a "compelling governmental interest" and show that its interference with religion is "the least restrictive means" for achieving the state's goals. RFRA affects state school voucher schemes because it requires such a heavy justification for the government to interfere with the exercise of religion. The act could limit a state's ability to impose restrictions on parents who want to use a voucher to send their child to a private religious school or on religious schools that wish to participate in a publicly funded voucher program. RFRA's support of free exercise rights, coupled with the supremacy of federal law, might convince a court to uphold the free exercise rights of children seeking to use vouchers over a state constitutional prohibition on such spending. This depends, of course, on whether RFRA itself is constitutional and whether it applies in free exercise cases.(27) Given the lack of judicial guidance in interpreting the act, the ideological makeup of judges, and the questionable status of the Lemon test, it would be premature to predict an outcome. The controversy over publicly funded school vouchers is shifting from whether such programs will reform the existing school system to whether such programs are constitutional. As federal and state governments explore the voucher option, policy makers need to consider a plan's design features. Voucher programs that take the form of direct scholarships to children that are to be used for educational services at a wide range of out-of-district public schools, charter schools, and secular and sectarian private schools have the best chance of withstanding establishment clause challenges in federal court. The constitutionality of vouchers in state courts is more problematic. To date, state courts for the most part have not been supportive. However, some judges have indicated a willingness to "give choice a chance."(28) Even those judges who support vouchers acknowledge the need to ensure that private schools serve the public interest. It seems safe to say that at this point the legal road ahead for publicly funded vouchers is by no means smooth. 1. Peter Applebome, "Milwaukee Forces Debate on Vouchers," New York Times, 1 September 1995, p. A-12; and Tony Mauro, "In Wisconsin, School Choice Tested," USA Today, 26 August 1995, p. 3-A. 2. For a detailed discussion, see Frank R. Kemerer, "The Constitutionality of School Vouchers," West's Education Law Reporter, vol. 101, 1995, pp. 17-36. 3. Pierce v. Society of Sisters, 268 U.S. 510 (1925). 4. The First Amendment states, "Congress shall make no law respecting an establishment of religion" (the establishment clause), "nor prohibiting the free exercise thereof" (the free exercise clause). The two clauses are in a state of tension, since too strict a reading of one would violate the other. The First Amendment is applicable to the states through the terms of the 14th Amendment. 5. Everson v. Board of Education, 330 U.S. 1 (1947). 6. Lemon v. Kurtzman, 403 U.S. 602 (1971). 7. Lamb's Chapel v. Center Moriches School District, 113 S.Ct. 2141 (1993); and Lee v. Weisman, 505 U.S. 577 (1992). Many commentators believe that the Lemon test will be eliminated or altered in a future decision in order to allow greater accommodation of religion. See Michael McConnell, "Accommodation of Religion: An Update and a Response to the Critics," George Washington Law Review, vol. 60, 1992, pp. 685-742; and David Schimmel, "Kiryas Joel Village School District v. Grumet: The Establishment Clause Controversy Continues," West's Education Law Reporter, vol. 94, 1994, pp. 685-97. 8. Committee for Public Instruction v. Nyquist, 413 U.S. 756 (1973). 9. Mueller v. Allen, 463 U.S. 388 (1983), p. 400. 10. Witters v. Washington Department of Services, 474 U.S. 481 (1986). 11. See Widmar v. Vincent, 454 U.S. 263 (1981); and Tilton v. Richardson, 403 U.S. 672 (1971). 12. Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993). 13. Laurence Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1988), p. 1204. See Justice Dolliver's dissent in Witters v. State Commission for the Blind, 771 P.2d 1119 (Wash.), p. 1136. 14. The only justices still on the Court who voted with the majority in Mueller are Chief Justice William Rehnquist and Justice Sandra Day O'Connor; Justice John Paul Stevens dissented. The Court was unanimous in the Witters decision. The justices who remain on the court who voted with the majority in Zobrest include Chief Justice Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Justices O'Connor and Stevens dissented on procedural grounds. Justice David Souter joined Justice Harry Blackmun's dissent, but both acknowledged that, when aid flows to individuals who then use it to finance private choices, "it is difficult to argue that government is actually endorsing religion." Justice Stephen Breyer, who replaced Justice Blackmun, and Justice Ruth Bader Ginsburg, who replaced Justice Byron White, did not participate in any of the cases. 15. Opinion of the Justices to the House of Representatives, 259 N.E.2d 564 (Mass. 1970); and Opinion of the Justices to the Senate, 514 N.E.2d 353 (Mass. 1987). 16. Weiss v. Bruno, 509 P.2d 973 (1973). 17. Witters v. State Commission for the Blind, 771 P.2d 1119 (Wash.) (en banc), cert. denied, 493 U.S. 850 (1989). 18. Opinion of the Justices, 616 A.2d 478 (N.H. 1992). 19. Campbell v. Manchester Board of School Directors, 641 A.2d 352 (Vt. 1994). 20. Asociacion de Maestros de Puerto Rico v. Torres [Teachers Association of Puerto Rico v. Torres], Dkt. No. KAC-93-1268 (1003) (30 November 1994). 21. Wis. Stat. Ann. at 119.23 (West 1991 and Supp. 1994) (enacted in 1990 and amended in 1993 and 1995). 22. Davis v. Grover, 480 N.W.2d 460 (1992). 23. Frank R. Kemerer, Joe B. Hairston, and Keith Lauerman, "Vouchers and Private School Autonomy," Journal of Law and Education, Fall 1992, pp. 601-28. 24. Wis. Const. Art. I, Sec. 18 (West 1995). 25. This is the teaching of a recent decision from the Ninth Circuit involving the federal Equal Access Act. The appeals court observed that, while state constitutions can be more protective of individual rights than the federal Constitution, they cannot abridge rights granted by federal law. Thus a Washington State constitutional provision used to bar non-school-sponsored religious groups from meeting on school property during noninstructional time had to yield to the Equal Access Act, which accords such a right if the school has a limited open forum. Garnett v. Renton School District No. 403, 987 F. 2d 641 (9th Cir.), cert. denied, 114 S.Ct. 72 (1993). 26. Religious Freedom Restoration Act, 42 U.S.C., Secs. 2000bb et seq. (1994). 27. At this writing, only two federal courts have considered the constitutionality of the act, and they reached opposite conclusions. See Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995) (RFRA is an unconstitutional usurpation of judicial authority); and Belgard v. State of Hawaii, 883 F. Supp. 510 (D. Haw. 1995) (RFRA is constitutional pursuant to Congress' enforcement power under section 5 of the 14th Amendment). 28. Davis v. Grover, 480 N.W.2d 460 (Wis. 1992) (Justice Ceci concurring). FRANK R. KEMERER is Regents Professor of Education Law and Administration at the University of North Texas, Denton, where KIMI LYNN KING is an assistant professor of political science.
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