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What Is the Verdict On School Vouchers?
by Martha M. McCarthy Ms. McCarthy discusses recent litigation pertaining to voucher programs, changes in the Supreme Court's posture toward government aid to religious schools, the legal rationale to defend voucher plans that include parochial schools, and the implications of a judicial stance that is favorable toward voucher systems. NO TOPIC is generating more volatile debate in legislative, judicial, and educational forums than voucher systems to fund schooling. Discussions elicit strong emotions, positions are entrenched, and few people are objective about or neutral toward this issue.1 The only point on which advocates and critics of school voucher plans agree is that if such systems are implemented on a broad scale, they will dramatically change public education in our nation. Although statewide voucher initiatives have consistently been defeated when subjected to a vote of the citizenry, in recent years various proposals to fund education through vouchers have been introduced in Congress and in about half of the state legislatures. Under a basic voucher system, parents can use state-funded vouchers of a designated amount to pay for their children to attend a public or private school of their choice. Plans vary as to the amount of government regulation involved and whether participating private schools can charge more for tuition than the basic voucher amount. The most controversial current issue, which has generated much of the legal activity, focuses on the inclusion of sectarian schools in state-supported voucher programs. Voucher proponents contend that parents do not truly have educational choice if sectarian schools are excluded from the voucher program, as about four-fifths of all private schools nationally have religious ties. The central federal question is whether the participation of sectarian schools violates the First Amendment's establishment clause, which prohibits governmental action respecting an establishment of religion. Thus the U.S. Supreme Court, through its interpretations of the federal Constitution, may have the final word in determining whether voucher proposals are widely adopted. If the Court concludes that such plans unconstitutionally advance religion, the school voucher movement will be severely curtailed. But if the Court gives a green light to voucher plans that include sectarian schools, this will encourage states to experiment with various types of voucher systems. Public educators need to be prepared for the latter possibility to become a reality. It is risky to speculate as to what direction the Supreme Court will take on any issue, but there have been signs in the past decade that the Court is relaxing its interpretation of the establishment clause and is willing to allow more state aid to flow to sectarian schools than in the past. What follows is a brief discussion of recent litigation pertaining to voucher programs, changes in the Supreme Court's posture toward government aid to religious schools, the legal rationale to defend voucher plans that include parochial schools, and the implications of a judicial stance that is favorable toward voucher systems. Recent Legal Activity Involving Voucher Plans Although a number of voucher proposals with varying degrees of governmental regulation have been discussed for several decades,2 it was not until the 1990s that state-funded plans involving private schools were adopted. And there has been more legal activity pertaining to vouchers since 1998 than ever before. Indeed, only in 1999 did Florida become the first state to adopt a statewide voucher plan that allows public funds to flow to private schools.3 Under the Florida program, students attending public schools that are rated as deficient (based on test scores, attendance, graduation rates, and other factors) are entitled to government vouchers that can be used in qualified public or private schools of their choice. State-funded voucher programs have also been established for disadvantaged youth ths in Milwaukee and Cleveland, and privately funded scholarships are available for students to attend private schools in more than 30 major cities nationally. The few operational voucher plans that allow government-funded vouchers to be redeemed in religious schools have generated a number of recent judicial rulings. In fact, every plan adopted thus far has been challenged in at least one lawsuit, and most have generated state as well as federal litigation. The judicial scoreboard is mixed, and there is no identifiable trend across lower courts to date. Given the volatile activity, judicial pronouncements are probably being rendered as this article goes to press. Litigation involving Milwaukee's voucher program is illustrative of the zigzag pattern in cases and the lack of judicial consensus among lower courts. Milwaukee boasts the longest tenure for a publicly funded voucher plan, which was initially enacted in 1989 to provide state vouchers for disadvantaged students to attend nonsectarian private schools. In 1992 the Wisconsin Supreme Court upheld this legislation as satisfying state constitutional requirements.4 After the legislature expanded the program to allow voucher students to enroll in religious schools, the Wisconsin Supreme Court in 1996 deadlocked regarding the constitutionality of the expansion, returning the case to the lower courts.5 Subsequently, a state appeals court affirmed the lower court's ruling that the amended plan violated the state constitution's prohibition on using state funds to benefit religious institutions. When the case was appealed to the Wisconsin Supreme Court for a second time, however, the state high court reversed the courts below and upheld the inclusion of parochial schools in the publicly funded voucher program. Finding no impairment of the establishment clause or the Wisconsin Constitution, the court reasoned that the state assistance program was lawful as it provided aid to both secular and sectarian institutions based on neutral criteria and only as a result of private choices. The U.S. Supreme Court declined to review this decision in 1998, which was a disappointment to both sides, who were hoping that the High Court would clarify the legal status of school voucher plans.6 In the absence of a uniform, national standard, diverse opinions continue to be rendered across lower courts. A Cleveland, Ohio, pilot program allowing state-funded vouchers (scholarships) to be redeemed at registered private schools or public schools in adjacent districts was enacted in 1995 and has already generated considerable legal activity. In 1997 an Ohio appellate court struck down the program as having a primary effect that advances religion in violation of the establishment clause. The court noted that no public schools participate in the scholarship program and thus its major impact is to provide aid to religious schools, since most of the private schools involved have religious ties. On appeal, the Ohio Supreme Court invalidated the program because it was attached to the state appropriations bill instead of enacted as a single-issue provision.7 But the state high court rejected the lower court's conclusion that the program provides direct and substantial government aid to sectarian schools in violation of the establishment clause. The court declared that, even though most beneficiaries of the program attend sectarian schools, this alone does not make the voucher program unconstitutional if the scholarships are allocated on the basis of religiously neutral criteria.8 This ruling was applauded by voucher advocates because the crucial church/state issues were resolved in their favor, and the technical problems in how the program was enacted could be fixed by the legislature. A few months after the Ohio Supreme Court's ruling, a bill was signed into law reinstating the Cleveland voucher program, but this time it was included in the education budget (instead of the budget package covering all state functions) in an effort to remedy the technical defect of the earlier provision.9 Yet the ink was hardly dry on this provision when a coalition of education and civil rights organizations filed a federal suit asserting that the involvement of religious schools in the Cleveland program violates the establishment clause. Shortly before the fall school term began, the federal district court enjoined implementation of the program, noting the likelihood of finding an establishment clause violation when the case is reviewed on its merits. But three days later, the court lifted the injunction for one semester for students already enrolled in the pilot program, and the Supreme Court subsequently stayed the injunction until the Sixth Circuit Court of Appeals reviews the case.10 It is difficult to keep up to date on the legal status of the Cleveland program, which has been referred to as a "voucher merry-go-round."11 Despite pronouncements of two state supreme courts that school voucher plans in which religious schools participate satisfy the establishment clause, other courts have not condoned various voucher proposals challenged on federal or state constitutional grounds. For example, the Puerto Rico Supreme Court in 1994 invalidated a voucher program allowing government funds to flow to religious schools. The plan gave low-income parents certificates of up to $1,500 that could be redeemed at private - primarily sectarian - schools. The court reasoned that the program conflicted with Puerto Rico's constitutional ban on the use of public funds to support private education.12 More recently, a Maine voucher program generated both state and federal rulings in which the courts supported the state's efforts to exclude religious schools from participating in the program. About half of the school districts in Maine pay tuition for some or all secondary students to attend public schools or approved private schools outside their home districts. The tuition is paid directly to the schools that parents select. Prior to the 1980s parents were allowed to choose religious secondary schools for their children to attend, but in response to an opinion of the Maine attorney general, the legislature amended the law in 1981 to exclude sectarian schools. The federal district court initially upheld the Maine legislation that excluded religious schools from the tuition reimbursement program, recognizing that, although parents "certainly are free to send their children to a sectarian school . . . they do not have the right to require taxpayers to subsidize that choice."13 But the court emphasized that it was not addressing the question of whether Maine could change its law to allow the participation of sectarian schools in the voucher program, noting that a decision on the constitutionality of such reimbursement to religious schools would have to wait for another day. On appeal, however, the First Circuit Court of Appeals did address this issue, concluding that the state would run afoul of the establishment clause if it supported sectarian education by including religious schools in the voucher program. This is the highest federal court to date to deliver an opinion on voucher programs and the strongest ruling against including parochial schools in such plans. The appeals court rejected the assertion of parents that parochial and nonsectarian private schools should be treated the same, concluding that the differential treatment of sectarian schools does not impair parents' rights to freely exercise their religious beliefs in terms of choosing parochial education for their children. Furthermore, the court found no violation of equal protection rights in the exclusion of sectarian schools from the program and held that the establishment clause demands such a distinction. In state litigation, the Maine Supreme Court similarly rejected challenges under the federal Constitution's free exercise, establishment, and equal protection clauses to the exclusion of sectarian schools from the tuition reimbursement program. As did the First Circuit Court of Appeals, the state high court found that, if religious schools were included, they would receive a direct government benefit in violation of the establishment clause.14 Recognizing that there had been changes in establishment clause jurisprudence since the 1981 legislation, the court nonetheless rejected the parents' contention that such doctrinal changes eliminated the necessity to exclude religious schools from the voucher system. In October 1999 the U.S. Supreme Court declined to review both Maine cases. Vermont is similar to Maine and several other New England states in that informal voucher programs have operated for years in Vermont towns that cannot support their own high schools. The town provides funds equal to tuition at a public high school for students to attend a public or private school of their choice outside the town. Since the early 1960s, conflicting opinions have been rendered regarding the legality of including religious schools in the reimbursement program. In 1961, the Vermont Supreme Court held that it was unconstitutional for a public school district to pay tuition for its students to attend sectarian schools, and the U.S. Supreme Court declined to review this decision.15 The state high court reached an opposite conclusion in 1994, reasoning that the establishment clause allows reimbursement for tuition paid to a sectarian school because the town simply reimburses parents, and no funds flow directly to religious institutions.16 But in 1999 the Vermont Supreme Court used state grounds to strike down a school district's policy allowing tuition payments for parents to send their children to sectarian high schools. Whereas the lower court in this new case had found an establishment clause violation, the state high court avoided the First Amendment issue by holding that the practice violated the state constitutional prohibition against compelling citizens to support religious worship.17 In addition to litigation directly addressing voucher programs, some recent cases have focused on programs that provide tax benefits for parents who send their children to nonpublic schools. In 1999, the Arizona Supreme Court rendered a decision receptive to the expansion of governmental aid in the form of such tax relief, which indirectly benefits sectarian schools. The court upheld a law authorizing a state tax credit of up to $500 for donations to school tuition organizations that grant scholarships to enable students to attend private schools, and the U.S. Supreme Court declined to review this decision. The Arizona Supreme Court reasoned that the program is intended to relieve tax burdens and to increase parents' educational choices and that religious schools "are at best only incidental beneficiaries of this tax credit."18 Rejecting claims under both the establishment clause and state constitutional provisions, the court held that the program does not advance religion, since any funds flowing to religious schools do so only because of private decisions. More recently, the Illinois affiliate of the American Federation of Teachers has joined a public school teacher with children attending public schools in a suit seeking to invalidate Illinois legislation authorizing an education tax credit of up to $500 per family that parents can apply t oward private school tuition. The challenge in state court focuses on the legality of allowing benefits to flow indirectly to religious schools, and the union has noted that the credit will "divert at least $50 million annually from spending on public education.''19 The mixed scoreboard in the state courts and the lower federal courts has stimulated legislative action to test the boundaries of what will be considered permissible in terms of government assistance to private - primarily sectarian - schools. And each new plan adopted generates more litigation. For example, two suits have already been filed challenging the recently enacted program in Florida described above. Although the Supreme Court has declined to review conflicting state and federal rulings to date, it is likely that the Court will ultimately have to settle the differences among lower courts regarding application of the establishment clause to voucher plans that include sectarian schools. A Receptive Supreme Court? As alluded to previously, it is precarious to venture an opinion as to how the current Supreme Court will rule on the constitutionality of school voucher plans, given that the justices have not spoken with a single voice in recent church/state decisions. The Fifth Circuit Court of Appeals recently observed that, "when we view the deceptively simple words of the Establishment Clause through the prism of the Supreme Court cases interpreting them, the view is not crystal clear."20 Nonetheless, there is some evidence that the Court is more amenable to governmental accommodations toward religion than it was 25 years ago.21 The "wall of separation between church and state" metaphor that was prevalent in establishment clause cases from World War II until the mid-1970s has disappeared from recent Supreme Court decisions. The major doctrinal changes occurred in the 1990s, but in several rulings in the 1980s the Court reflected a more accommodationist posture than it had a decade earlier. In 1983, for example, the Supreme Court upheld a Minnesota tax-benefit program allowing parents of students in public or private schools to claim a limited state income tax deduction for educational expenses incurred for each dependent who attended an elementary or secondary school.22 The Court majority reasoned that such state assistance to public and nonpublic schools alike flows to religious institutions indirectly through parents and differs significantly from the direct transmission of public funds to parochial schools. The Court also condoned indirect government aid to sectarian institutions in 1986 when it upheld the use of vocational rehabilitation funds for a visually impaired person to receive ministerial education.23 The Court ruled that, since the aid went to the individual, who then transmitted the funds to the educational institution of his choice, there was no advancement of sectarian education. The Court drew a distinction between government action and private action - a distinction that has become increasingly authoritative in justifying devotional activities in public schools and state aid to parochial schools. Subsequently, the Court seemed inclined to support governmental aid to sectarian institutions when it upheld the Adolescent Family Life Act in 1988.24 This federal law provides grants to public and nonprofit organizations, including some with ties to religious organizations, for services and research in the area of adolescent premarital sexual relations and pregnancy, but grantees cannot promote abortions. The two decisions offering the strongest indication that voucher plans could withstand an establishment clause challenge have been rendered within the past decade. In a significant 1993 decision, Zobrest v. Catalina Foothills School District, the Supreme Court rejected a First Amendment challenge to the use of public funds to provide a sign-language interpreter for a hearing-impaired parochial school student.25 The Court concluded that the child is the primary beneficiary and the school receives only an incidental benefit because the aid reaches the child as part of a general government program that distributes support neutrally to qualifying students. The Court disavowed its prior position that the establishment clause lays down an "absolute bar to the placing of a public employee in a sectarian school"26 and forged a new direction in interpreting establishment clause restrictions on governmental aid to sectarian schools.27 The most recent Supreme Court ruling that supports government aid to sectarian schools was rendered in 1997. In Agostini v. Felton, the Court overruled a decision it had rendered 12 years earlier, Aguilar v. Felton, in which it had barred public school personnel from providing remedial services on parochial school premises.28 At issue in these cases was implementation of Title I of the Elementary and Secondary Education Act, which provides funds for compensatory education programs in school districts with high concentrations of low-income families.29 To receive Title I funds, local education agencies must meet certain requirements, including the provision of comparable services for eligible students in private schools. In Aguilar the Court had ruled that the establishment clause prohibited school districts from sending public school teachers into parochial schools to meet the comparability mandate. Reversing itself 12 years later in Agostini, the Court removed the permanent injunction in New York City that prohibited public school teachers from providing remedial education to disadvantaged children on parochial school premises. The Supreme Court majority in Agostini reasoned that the significant changes since 1985 in the judicial understanding of criteria to assess whether government aid has the impermissible effect of advancing religion entitled petitioners to relief from the injunction they had been operating under for 12 years.30 The Court rejected its prior stance that placing public employees in parochial schools would create a symbolic union between government and religion, reasoning that the use of government funds to aid the educational function of parochial schools is not always invalid. The Court recognized that Title I funds are allocated on a neutral basis and available to all children who meet the law's criteria, regardless of their religion or which school they attend. The majority also found the preoccupation with "locale" to be neither "sensible nor sound" and declared that an absolute bar to placing public employees in sectarian schools smacks of "antiquated notions" that public school personnel would be tainted by entering a religious environment and tempted to undertake religious indoctrination.31 Furthermore, the Court recognized that government aid for remedial services at parochial schools does not provide an incentive for parents to choose religious schools, define recipients by reference to religion, create excessive government entanglement with religion, or foster the perception that the government endorses religion. The Agostini decision appeared to be a major departure from prior establishment clause rulings, but the Supreme Court majority emphasized that "fresh law" was actually created by the Zobrest decision rendered four years earlier. Taken together, these two Supreme Court opinions have changed the judicial assessment of establishment clause claims in connection with state aid to religious schools, making it easier for such aid to survive a First Amendment challenge. Voucher advocates have been encouraged by the Court's willingness to condone aid that indirectly benefits parochial education through parents' choices regarding where their children go to school. A Louisiana case, Helms v. Picard, which the Supreme Court has agreed to review, may provide the vehicle for the Court to shed some light on how it will rule regarding school voucher plans.32 In this case the Fifth Circuit Court of Appeals upheld the use of teachers paid with public funds to provide special education services in sectarian schools under a state law requiring school districts to provide an appropriate education to every exceptional child in residence, including those attending parochial schools. However, in the same ruling, the appellate court struck down direct state aid to sectarian schools in the form of instructional materials and equipment under Title VI (formerly Chapter 2) of the Elementary and Secondary Education Act and under a comparable state law.33 The court rejected the contention that criteria to assess establishment clause claims had changed in recent years, reasoning that the Supreme Court decisions invalidating such direct aid to parochial schools in the 1970s were still good law.34 But this conclusion conflicts with the holding of another appellate court regarding the constitutionality of the federal provision in question, which may be one reason that the Supreme Court has agreed to review the Helms case. The Ninth Circuit Court of Appeals ruled in 1995 that the state's "loaning of neutral, secular equipment and instructional materials to parochial schools does not have the primary or principal effect of advancing religion" and concluded that the prior Supreme Court opinions disallowing such aid had been undermined by subsequent decisions.35 The Supreme Court is expected to resolve the conflict between these federal appellate courts when it renders a decision in Helms. Considerable attention is focused on this case because the Court's holding and rationale could have significant implications for other types of state aid to parochial schools as well as for the legal status of voucher systems to fund education. Legal Justifications For Voucher Systems The central rationale that voucher proponents use to defend the legality of voucher plans is the private nature of the decisions that ultimately result in government funds' flowing to religious institutions. The parents, not the state, decide where to send their children to school, and the funds simply follow the child. In short, these independent decisions of parents break the link between the government and the religious entity, thus eliminating any establishment clause infraction. The Supreme Court has distinguished government aid that is an impermissible direct subsidy to churches from a permissible "transfer" of funds by individuals to sectarian institutions, concluding that the latter is similar to a situation in which state employees donate part of their salaries to the church.36 The distinction between legitimate private action and prohibited government action to advance religion is asserted not only to justify various types of state aid to religious schools; this rationale has also been used to defend student-initiated devotional activities in public education.37 A second rationale used to condone government assistance to parochial schools is that religious and secular groups should be treated in an evenhanded manner. The Supreme Court observed in 1997 that governmental aid is not likely to have the effect of advancing religion if it is "allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis."38 Under this nondiscrimination model, the establishment clause allows programs of general application that provide benefits to broad classes without reference to religion.39 This rationale arguably could be extended to justify state-supported voucher systems, as long as students attending rel igious and nonreligious schools are treated in an evenhanded manner. And it is not a huge leap from permitting evenhanded treatment of sectarian and secular enterprises to requiring such nondiscrimination, so that religious organizations would receive the same government benefits as secular entities. In 1995, the Supreme Court noted that "we have held that the guarantee of neutrality is respected, not offended, when government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse."40 If the Supreme Court concludes that nondiscrimination toward religion is required under most circumstances, then the establishment clause may lose much of its vitality as an independent constitutional guarantee. Whereas in the 1960s and 1970s the establishment clause was interpreted as demanding differential treatment of religious and secular concerns, and some lower courts continue to adhere to this position,41 the current Supreme Court seems more receptive to equal treatment of religious and secular expression and groups. And in the final analysis, the establishment clause means what the Supreme Court concludes that it means. A revitalized child-benefit doctrine (that children, rather than the parochial schools they attend, are the primary beneficiaries of the government aid) seems to be gaining favor. Traditionally, this doctrine was used to justify the use of state aid for transporting parochial school students and for loaning them textbooks in secular subjects.42 In Zobrest and Agostini the Court expanded the child-benefit rationale to encompass situations in which public school personnel provide secular remedial and related services to children in sectarian schools. It remains to be seen whether this rationale will be further extended to cover the provision of other types of secular instructional activities, such as laboratory and other costly courses, but we can be sure that those championing state aid to parochial schools will attempt to stretch the child-benefit justification as far as possible. The nondiscrimination and child-benefit doctrines, coupled with the legitimacy of aid flowing to religious entities based on private choices, ensure greater government assistance to religious schools in the future. Indeed, it would appear that these rationales could be used to justify most types of government aid to parochial schools. Although clearly established that the government cannot condition benefits on the relinquishing of constitutional rights, the Supreme Court has never ruled that the government must subsidize the exercise of such rights. Nonetheless, parents continue to assert that, because their decision to select parochial education is constitutionally protected, their children attending sectarian schools should be entitled to the same services as provided by the government for public school students. By withholding such benefits, according to this argument, the government impairs parents' rights to freely exercise their religious beliefs. Given recent legal developments, it is not beyond the realm of possibility that such assertions will encounter a more responsive judiciary in the future. Implications of Voucher Programs' Being Upheld Educators have traditionally tended toward complacency regarding the future of public schooling, embracing the view that the American common school is so ingrained in our heritage that it is invulnerable. Granted, we have the most mature public education system of any nation, but it is experiencing unprecedented pressures, the most significant of which is the school privatization movement. And voucher proposals hold center stage among privatization initiatives. Speculating for the moment that the Supreme Court upholds voucher programs in which religious schools participate and that a number of states adopt such programs to fund education, we can see that the fiscal implications would be significant. Under a basic voucher system, the students who are currently supported by their parents or by scholarships to attend private schools or home education programs (about 12% of all students nationally) would be eligible for state support. Perhaps because of this fiscal impact, states may be reluctant to adopt large-scale voucher plans. Similar caution has been evident in connection with costly proposals for state tax deductions or credits that parents can claim for educational expenses incurred at public or private schools. Instead of adopting systems under which vouchers are available to all students, states initially may focus on targeted programs that make vouchers available for disadvantaged children or students assigned to particular categories of public schools, as in the Florida program. The ramifications of adopting voucher systems to fund education extend far beyond fiscal concerns. Advocates and critics of school voucher plans hold different world views regarding the purposes and desired outcomes of education. There is a tension between concern for personal empowerment and concern for the collective good. Voucher advocates emphasize the benefits to individuals that result from providing more education options and argue that voucher systems will provide poor families with educational choices that only the wealthy historically have enjoyed. If the market (instead of the government) should become the primary regulatory mechanism for schools, then parents would have more discretion to ensure that their children's education is consistent with their personal beliefs and values. Under marketplace models to fund education, social homogeneity within schools increases, because each school is designed to attract those with similar backgrounds and beliefs. As Frank Murray recently observed, each private school promotes "its own idiosyncratic view of what it means to be an American."43 Voucher critics are concerned that, in addition to creating unconstitutional government entanglement with religious institutions, the widespread adoption of voucher systems will have negative consequences for the democratizing function of public schools. They assert that the focus on individual enhancement through school choice will exacerbate economic, ideological, and racial segregation across schools.44 The push for educational choice and vouchers has been called "the strongest educational reform movement of the 1990s" and characterized as being "grounded entirely within the consumer-is-king perspective."45 The government's regulatory role in education is also viewed very differently by voucher proponents and critics. Advocates assert that large government bureaucracies are inefficient in running schools and should be dismantled; they prefer accountability through market forces rather than extensive state regulations.46 In short, through a consumer approach to education, the competition among schools will force inferior schools simply to go out of business because they will not attract students. Critics counter that under marketplace models of schooling the state abdicates its obligation to protect the welfare of children and to ensure an educated citizenry. The President's Commission on Privatization cautioned a decade ago that where public institutions have assumed important democratic functions, the shift toward market alternatives may jeopardize core values of our society.47 Difficult questions are being raised about the state's duty to make certain that children are exposed to academic content and democratic values that we embrace as a nation. For example, can we protect the common good in a democracy if children are not exposed to diversity and encouraged to respect those with different backgrounds and viewpoints? One commentator has cautioned that, "by laundering public money through 'private choice,' we destroy the reach of constitutional protections and undermine the idea that we, as a society, retain a stake in the education of all of our children."48 These ideological and value clashes pertaining to the privatization of education have not yet been fully explored. Now is the time to address these complex issues - not after voucher plans are widely adopted and a trend is established that cannot easily be reversed. If the Supreme Court determines that the establishment clause does not bar voucher programs that include sectarian schools, this will provide an incentive for such proposals to be enacted. Although these plans could still be invalidated as conflicting with state law, this is not likely to happen if the Supreme Court concludes that there is no establishment clause bar to the participation of sectarian schools in voucher programs.49 We have a tendency in education to move quickly when a reform effort catches the attention of policy makers. Lessons can be learned from the rapid adoption of charter school laws, which have been enacted by three-fourths of the states since 1991 and are viewed by some as a backdoor approach to vouchers. Most charter schools receive state aid but operate outside the requirements of the traditional public education bureaucracy and can be proposed by existing public or private schools or entities starting new schools.50 Charter schools, voucher plans, and other school privatization initiatives are generating substantial interest among for-profit companies that want to tap into the more than three billion dollars spent annually on K-12 education in the United States. Before voucher systems spread across states as have charter school laws and other education reforms (e.g., student proficiency testing), we should at least gather data supporting the efficacy of such plans51 and be certain that they do not compromise cherished national values. Policy makers must be deliberate and thoughtful in exploring the implications of decisions pertaining to voucher programs, because the school privatization movement has tremendous potential to alter the nature and role of public education in the United States. 1. However, the new Center for the Study of Privatization in Education at Columbia University, directed by Henry Levin, hopes to be perceived as unbiased and objective in its work on voucher systems. See Erik Fatemi, "Privatization Center to Seek Balanced View of Vouchers," Education Week, 21 April 1999, p. 11. 2. Milton Friedman, the Nobel Prize-winning economist, championed school vouchers as early as the 1950s as a vehicle to make school systems more responsive to consumers. See Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), chap. 6. 3. Jessica Sandham, "Florida OKs 1st Statewide Voucher Plan," Education Week, 5 May 1999, pp. 1, 21. Only a small number of students (under 60) from the two Florida public schools that received failing scores in 1999 are enrolled in private schools at public expense for the 1999-2000 academic year. 4. Davis v. Grover, 464 N.W.2d 220 (Wis. Ct. App. 1990), rev'd, 480 N.W.2d 460 (Wis. 1992). For a detailed discussion of the issues and holding in this case, see Frank Kemerer and Kimi Lynn King, "Are School Vouchers Constitutional?," Phi Delta Kappan, December 1995, pp. 307-11. 5. State v. Jackson, 546 N.W.2d 140 (Wis. 1996). 6. Jackson v. Benson, 570 N.W.2d 407 (Wis. App. 1997), rev'd, 578 N.W.2d 602 (1998), cert. denied, 119 S. Ct. 466 (1998). 7. Simmons-Harris v. Goff, 684 N.E.2d 705 (Ohio App. 1997), rev'd, 86 Ohio St. 3d 1 (1999). 8. 86 Ohio St. 3d at 6-9. 9. See Jessica Sandham, "Ohio Lawmakers Reinstate Voucher Program," Education Week, 14 July 1999, p. 17. 10. Simmons-Harris v. Zelman, 54 F. Supp.2d 725 (N.D. Ohio 1999), injunction stayed, 1999 U.S. LEXIS 7480 (5 November 1999). 11. "Antagonists Renew Spat Over Cleveland Vouchers," School Law News, 9 July 1999, p. 4. 12. Asociacin de Maestros de P.R. v. Torres, No. 94-371, WL 780744 (P.R. 1994). 13. Strout v. Albanese, 13 F. Supp.2d 112, 114 (D. Me. 1998), aff'd, 178 F.3d 57 (1st Cir. 1999), cert. denied, 1999 U.S. LEXIS 6618 (12 October 1999). 14. Bagley v. Raymond Sch. Dep't, 728 A.2d 127 (Me. 1999), cert. denied, 1999 U.S. LEXIS 6845 (12 October 1999). 15. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177 (1961), cert. denied, 366 U.S. 925 (1961). 16. Campbell v. Manchester Bd. of Sch. Directors, 641 A.2d 352 (Vt. 1994). 17. Chittenden Town Sch. Dist. v. Vermont Dep't of Educ., So478-96 (Vt. Super. 1997), aff'd on other grounds, 1999 Vt. LEXIS 98 (Vt. 1999). 18. Kotterman v. Killian, 972 P.2d 606, 616 (Ariz. 1999), cert. denied, 1999 U.S. LEXIS 6553 (4 October 1999). 19. Walsh, op. cit. 20. Helms v. Picard, 151 F.3d 347, 355 (5th Cir. 1998). 21. For a more detailed treatment of the evolution of establishment clause litigation since the mid-20th century, see Martha M. McCarthy, "Religion and Education: Whither the Establishment Clause?," Indiana Law Journal, vol. 75 (in press). 22. Mueller v. Allen, 463 U.S. 388, 395 (1983), contrasting Committee for Public Educ. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), in which the Supreme Court invalidated such benefits made available only to private school patrons. 23. Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481 (1986). However, on remand, the state supreme court held that the Washington Constitution prohibited such aid that flows to religious institutions: Witters v. Washington Comm'n for the Blind, 771 P.2d 1119 (Wash. 1989). 24. Bowen v. Kendrick, 487 U.S. 589 (1988), interpreting 42 U.S.C. [currency] 3002 et seq. 25. 509 U.S. 1 (1993). But the next year the Court rendered a decision, Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994), in which it used the establishment clause to strike down a New York law creating a separate school district to serve special-need Satmar Hasidic children whose orthodox form of Judaism forbids them from associating with those outside the faith. The Court concluded that the creation of a school district for religious reasons crossed the line from permissible accommodation to impermissible establishment of religion. 26. 509 U.S. at 13. While holding that the establishment clause does not prohibit the provision of special education services in parochial schools, the Supreme Court has not ruled that school districts must provide such services in sectarian schools to respect parents' First Amendment right to freely exercise their religious beliefs by selecting sectarian education for their children. 27. The Court subsequently espoused a relaxed interpretation of the establishment clause in a higher education decision, in which the Court majority rejected the University of Virginia's effort to bar a student religious group from using student activity fees to pay a vendor to print and distribute proselytizing literature. The Court reasoned that it would not violate the establishment clause for a state-funded university to support printing services for religious and secular student publications alike and that the free speech clause demands such equal treatment to avoid viewpoint discrimination. Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995). 28. 521 U.S. 203 (1997), overturning Aguilar v. Felton, 473 U.S. 402 (1985) and School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985). 29. 20 U.S.C. [currency] 6301 (1998). 30. 521 U.S. at 234-235. The lower courts had concluded that Aguilar was still good law, thus precluding a decision on the merits of the claim, but the Supreme Court majority disagreed. Basing its decision on changes in establishment clause law, the Court did not justify the relief based on modifications in the factual conditions of the case, recognizing that the substantial costs associated with providing the Title I services at neutral sites were anticipated in 1985. 31. 521 U.S. at 223-224, 228. For a discussion of why the focus on locale is misplaced and obscures the more important issue of the law's primary effect, see Martha M. McCarthy, "The Road to Agostini and Beyond," Education Law Reporter, vol. 124, 1998, p. 771. The Court no longer seemed concerned about the distinction drawn in Zobrest between an interpreter, who serves only as a conduit for instruction, and a teacher, who delivers the content. See Zobrest, 509 U.S. at 12-13 (1993). 32. Helms v. Picard, 151 F.3d 347 (5th Cir. 1998), cert. granted sub nom. Mitchell v. Helms, 119 S. Ct. 2336 (1999). See Mark Walsh, "High Court to Hear Case on Title VI: A Ruling Could Affect Debate over Vouchers," Education Week, 23 June 1999, pp. 1, 14. 33. Subchapter VI of the Elementary and Secondary Education Act of 1965, 20 U.S.C. [currency] 7301 7373 (1998) and La. R. S. [currency] 17:351-352 (1998). 34. See Wolman v. Walter, 433 U.S. 229 (1977); and Meek v. Pittenger, 421 U.S. 349 (1975). 35. Walker v. San Francisco Unified Sch. Dist., 46 F.3d 1449, 1465 (9th Cir. 1995). 36. Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 486-487 (1986). 37. See, for example, Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (4th Cir. 1998) (finding a religious sect's distribution of Bibles in public schools, in accordance with regulations applied to other outside groups, to be private action that did not bear the public school's stamp of approval); and Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993) (holding that students' deciding by election to include student-led devotionals in the graduation ceremony is private expression and does not represent the school). 38. Agostini v. Felton, 521 U.S. 203, 231 (1997). 39. This nondiscrimination rationale is particularly potent in connection with religious speech, such as student-initiated devotional activities in public schools. See Ralph Mawdsley, "Agostini v. Felton: Is Establishment of Religion Moving Toward a Nondiscrimination Model?," Education Law Reporter, vol. 127, 1998, p. 13. 40. Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 839 (1995). 41. See Strout v. Albanese, 178 F.3d 57 (lst Cir. 1999). 42. Board of Educ. v. Allen, 392 U.S. 236 (1968) (textbooks); and Everson v. Board of Educ., 330 U.S. 1 (1947) (transportation). 43. Frank Murray, "What's So Good About Choice?," Education Week, 27 January 1999, p. 52. 44. See Kevin B. Smith and Kenneth Meier, "School Choice: Panacea or Pandora's Box?," Phi Delta Kappan, December 1995, pp. 312-16; Francis Fowler, "The Shocking Ideological Integrity of Chubb and Moe," Journal of Education, vol. 173, 1992, pp. 119-29; and Albert Shanker and Bella Rosenberg, Politics, Markets, and Schools: The Fallacies of Private School Choice (Washington, D.C.: American Federation of Teachers, 1991). 45. David F. Labaree, "Are Students 'Consumers'? The Rise of Public Education as a Private Good," Education Week, 17 September 1997, p. 38. 46. See John E. Chubb and Terry M. Moe, Politics, Markets, and America's Schools (Washington, D.C.: Brookings Institution, 1990); and Joseph Nathan, "Progress, Problems, and Prospects with State Choice Plans," in idem, ed., Public Schools by Choice (St. Paul, Minn.: Institute for Learning and Teaching, 1989). 47. President's Commission on Privatization, Privatization: Toward More Effective Government (Washington, D.C.: U.S. Government Printing Office, 1988). 48. Laura Underkuffler, "Vouchers and Beyond: The Individual as Causative Agent in Establishment Clause Jurisprudence," Indiana Law Journal, vol. 75 (in press). 49. For a discussion of state law issues involved in an assessment of the legality of voucher plans, see Frank Kemerer, "The Constitutionality of School Vouchers," Education Law Reporter, vol. 101, 1995, pp. 17-36. 50. See School Administrator, August 1999 (entire issue); "Charters: Laws Passed as Unionization Plan Defeated," School Law News, 11 June 1999, p. 4; and Priscilla Wohlstetter and Lesley Anderson, "What Can U.S. Charter Schools Learn from England's Grant-Maintained Schools?," Phi Delta Kappan, February 1994, pp. 486-91. 51. Since adoption of voucher programs is in its infancy, evaluative data remain inconclusive. See Jay Greene, Paul Peterson, and Jiangtao Du, "The Effectiveness of School Choice: The Milwaukee Experiment," Education Policy and Governance Occasional Paper No. 97-1, Harvard University, 1997; Kim K. Metcalf et al., Evaluation of the Cleveland Scholarship Program: Second-Year Report (Bloomington: Indiana Center for Evaluation, Indiana University, 1998); and John F. Witte, Troy D. Sterr, and Christopher A. Thorn, Fifth-Year Report: Milwaukee Parental Choice Program (Madison: Robert M. La Follette Institute of Public Affairs, University of Wisconsin, 1995). MARTHA M. McCARTHY is Chancellor Professor, Indiana University, Bloomington.
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