Vouchers and the law

Experts argue the constitutionality of the school reform movement's most controversial proposal.

Published March 27, 2000 5:00PM (EST)

School voucher programs have managed to unite conservative politicians with fed-up inner city parents to form a movement to give public education money to families so they can choose whether to patronize private or parochial schools. But even as vouchers have picked up some political steam, they've lately been set back by the courts.

A state judge in Florida ruled earlier this month that Gov. Jeb Bush's voucher plan violated a portion of the state's constitution mandating state-funded public education. Bush's initiative provided vouchers of up to $3,400 for students in failing schools.

But the most important school voucher ruling so far has been in Cleveland, where 3,761 students are participating in a program that provides as much as $2,500 in funding. Federal Court Judge Solomon Oliver Jr. ruled in December that the state voucher program in the city violated the Constitution because it mixed church and state.

A program in Milwaukee, the oldest in the nation, was upheld by the Wisconsin Supreme Court in 1997. The U.S. Supreme Court refused to hear an appeal of that case a year later. But the issue will no doubt be headed back to the high court, and many believe this time it will have to be heard. Dozens of states are considering voucher programs, including California, where the issue may be headed for the November ballot.

First conceived in the 1950s by economist Milton Friedman, school vouchers are the most contentious of the three favorite options of free-market-minded education reformers; the other two are charter schools and privatized public schools such as the Edison Project.

Vouchers, proponents say, hold public schools more strictly accountable for how students perform on standardized tests, which are seen as the educational equivalent of the corporate bottom line. In Florida, where the governor has made school vouchers a centerpiece of his education policy, Tallahassee will pick up the tab for private school if a child's public school fails to meet the minimum acceptable score on the Florida Comprehensive Assessment Test twice in a four-year period.

So far, Florida has only given two schools, both in Pensacola, a failing grade. To date only 53 students have transferred to private schools as a result. But academics expect thousands more to become eligible when next year's school report card is released. University of Florida economics professor David Figlio recently predicted in the Wall Street Journal that 65,000 additional students in 80 schools will be added to the eligibility list this year, when their schools fail to meet the state's standards for the second time. But the Florida ruling seemed to deal a deadly blow to Bush's ambitious voucher policy.

Voucher critics are divided into two camps: those who think vouchers will accelerate the decline of the public school system, and church and state absolutists, who believe voucher programs violate the First Amendment of the Constitution.

In a Salon News debate, Steven Green, general counsel and policy director of Americans United for the Separation of Church and State, and Clint Bolick, litigation director for the Institute for Justice, argue the constitutionality of school voucher programs. Today, Green and Bolick present their opening arguments. Check back tomorrow for the cross-examination.

Clint Bolick is litigation director for the Institute for Justice, a Washington organization that has fought on behalf of school voucher proponents.

The First Amendment reads, "Congress shall make no law respecting an establishment of religion." The notion that allowing individuals to freely choose the schools of their choice -- whether they are public, private or religious -- is an establishment of religion tortures the meaning of those words. The Supreme Court consistently has held -- in accordance with the framers' own beliefs -- that what is required is not a wall between religion and the state, but neutrality. Otherwise, certain cherished institutions, such as tax exemptions for churches, deductions for contributions to religious institutions, religious charities, the G.I. Bill, Pell grants, transportation for parochial school students and the like would all be held unconstitutional.

The most important case with bearing on the school choice debate was Brown vs. the Board of Education, which had nothing to do with religious establishment, but everything to do with the issue we're discussing. In 1954, the Supreme Court issued what is probably the most sacred constitutional promise ever made to American citizens: The promise of equal educational opportunities for all school children, black or white, rich or poor. Since then, we've made significant progress, but it's been painfully uneven, particularly for children of limited economic means in the inner cities.

I don't think we can get radical enough in terms of solving America's educational disparities. That's why large majorities of black and Hispanic citizens support school choice along with a majority of all Americans.

A Constitution that guarantees equal educational opportunities should not be turned on its head to prevent the most promising educational reform in America. Obviously, the defenders of the status quo will reach out to any legal provisions they can find to thwart meaningful reform. Those who stand against school choice have consistently opposed virtually any kind of accommodation of religion. Fortunately, they have lost in most cases, and we predict they will loose on this issue.

The only case that the opponents of school choice can credibly argue is Pearl vs. Nyquist. In the early 1970s, a number of states, including New York and Pennsylvania, were concerned that the expense burden facing families whose kids were in religious schools would force them to remove their children and put them in public schools, which would add to the already high tax burden. New York state set up a number of mechanisms to aid religious schools and their patrons called ParochAid, which included direct grants to the schools themselves and tax credits for parents. The Supreme Court struck down that aid, ruling that the "primary effect" of the programs was to benefit religious schools.

But the court expressly left open the question of indirect aid such as scholarships that would be available to students without regard for the type of school they would be attending. That is a footnote that our adversaries conveniently overlook whenever they are using Nyquist. Since Nyquist, the court has addressed indirect aid cases on five occasions; and it has sustained that aid on each occasion.

The Supreme Court has addressed the issue on two occasions -- once in the Mueller vs. Allen decision and more recently in the Agostini vs. Felton decision. The court ruled that the program's neutrality as it is written determines a program's constitutionality -- not the decision third parties ultimately make in terms of schools determining whether to participate in a program or parents in deciding where to send their kids. What Judge Oliver is saying in the Ohio case is that because the only schools that elected to throw a life preserver to these children are religious, the program is unconstitutional.

The Florida program, in my view, is exceptionally well designed because it is the first program to expressly link private school choice with public school accountability. No scholarships are provided unless there is a failing public school and the state intervenes to bring whatever resources and reforms are necessary to improve the public school's performance. It is unquestionably a bona fide and systemic public school reform program.

In Florida as elsewhere, the initial round of litigation has raised a number of state and federal constitutional issues. The first issue that was decided revolved around the state constitutional guarantee of a high-quality education. And the judge ruled that the education guaranteed by the state constitution can only take place in public schools. The same argument was raised by the plaintiffs in Wisconsin and Ohio and rejected by their Supreme Courts.

The defenders of the status quo have a powerful stake in fighting vouchers because the essence of school choice is a transfer of power from bureaucrats and special interest groups to parents. Our goal in litigation is to demonstrate that the primary effect of these programs is not to expand religion, but to expand educational opportunities. In the end, it will be difficult for the Supreme Court to turn its back on the one program that truly seems to provide equal educational opportunities to children who have been left behind.

When we reach the U.S. Supreme Court, the constitutional cloud will be removed once and for all.

Steven Green is general counsel and director of policy for Americans United for the Separation of Church and State.

Since 1947 and the modern era of church-state jurisprudence, the Supreme Court has never upheld a program that has allowed for the public funding of religious instruction and education. Every type of aid that the court has found permissible has always involved discreet supplemental funding to religious schools to cover programs like nutritional services, nurses, sign-language interpreters, speech pathologists and remedial programs like special-education services. The court has always been very careful to ensure that the government does not fund the core functions of religious education.

Private religious schools account for more than 85 percent of the private schools in the country. These are the types of schools, traditionally, where religion is integrated throughout the curriculum, where religious values and teachings are promoted -- not just in classes on religion, but also in other courses. Most parents are attracted to religious private schools, to a large degree, because of the additional values that are taught and ... incorporated throughout the school day.

It then becomes impossible for the government to fund religious education because there's no way to separate the secular from the religious. When you start funding anything more than the peripheral programs I mentioned, you will inevitably then have the government funding private religious education and values. And that violates the core principles of separation of church and state that our founders decided on over 212 years ago.

In every single case it's faced, the court has always drawn the line to say government cannot pay for religious indoctrination and instruction. Those cases that have been upheld have always involved either discrete programs that have supplemented the education, but have not taken over the core functions, or programs that cannot be converted for religious uses.

The problem with vouchers is that they provide fungible, unrestricted cash that will flow to religious schools and pay for the entire instructional process. The court has never dealt with a case like vouchers, absent a tuition reimbursement case back in 1973, Pearl vs. Nyquist, which was struck down.

Another concern the court expressed was that these programs inevitably favor religious over secular private education and, therefore, create an incentive for children to attend religious schools. This was an important point for the Federal District Court in Ohio when it struck down the Cleveland voucher plan in December. Judge Solomon Oliver looked at the facts and determined that children could only use the vouchers to attend private schools -- no public schools were required to participate and 96 percent of the children attending private schools attended private religious schools. This, he said, didn't offer parents a choice, since there really weren't options available to children other than private religious schools.

If you combine those two themes -- that vouchers create incentive for religious education and that voucher funds are fungible -- you end up with the government funding religious education and training.

Proponents of vouchers say all of that makes no difference because the money is given to parents and it is they who determine where it gets spent. That's a specious argument because in all the voucher programs that have been designed, the money is restricted and can only be spent on private education. Parents are just conduits for the transfer of money from the state to the ultimate beneficiary, which is the private religious school. When the court has talked about the difference between direct aid to religious schools, which is forbidden, and indirect aid to religious schools, it is not concerned about the payment mechanism. The court is concerned about the effect the funds have on the religious schools. As a result, the courts have uniformly -- with only one decision to the contrary -- found that this type of aid violates separation of church and state

Anywhere between 85 to 90 percent of the children attending private schools are attending religious schools, and we know from the experience in Wisconsin that any voucher program will eventually be expanded to include private religious schools.

Out of the two cases currently pending, the most likely to go to the Supreme Court is the Ohio voucher plan because it's already in federal court. State courts are many times inclined to decide on state constitutional grounds, which then denies the [federal] Supreme Court the opportunity to review a state interpretation of a state's constitution. The Cleveland voucher plan doesn't have any other issues except for federal constitutional left for interpretation. And last fall, the Supreme Court issued a stay of Judge Oliver's decision when he enjoined the further application of the Cleveland voucher plan. In our regard, that shows they have some interest in this case. Also, four voucher cases have gone up to the Supreme Court, but the court has so far refused to hear them. You now have a split in the federal courts, and we think there's a good likelihood [they] will take this case.

Key for the Supreme Court will be two factors: The true availability of options under any kind of voucher program, and how the court interprets the definition of "direct aid." Are they going to look solely at the payment formula and does it go through a third person? Or are they going to look at whether the effect of the aid takes over core functions?

Most observers think that the court is split. Pro-voucher advocates can count on three to support them: Chief Justice Rehnquist, Scalia and Thomas would vote for vouchers almost under any circumstance. The four justices pretty sure to vote against vouchers are Souter, Stephens, Ginsberg, Breyer. There are two justices on the fence: Kennedy and O'Connor, who will be the key votes.

By Daryl Lindsey

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

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