Schools and School Districts

The specifics of school tuition voucher systems vary from program to program, but generally such systems offer parents of schoolchildren a taxfunded voucher that is redeemable at the educational institution of their choice. The vouchers are issued yearly or at some other regular interval, and they pay for a certain amount of tuition fees each year at nonpublic and alternative charter schools. The most controversial programs allow parents to use the publicly funded vouchers to pay tuition at a sectarian, or religious, school.

Private school vouchers implicate at least two provisions in the U.S. Constitution: the Establishment and Free Exercise of Religion Clauses in the FIRST AMENDMENT. According to the U.S. Supreme Court, the Establishment Clause prohibits the federal government and the states from setting up a religious place of worship, passing laws that aid religion, and giving preference to one religion or forcing belief or disbelief in any religion (Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 [1947]). Private school vouchers have been challenged under the Establishment Clause because they involve a form of governmental support that may be used for religious-oriented activities.

Critics of private school vouchers have charged that taxpayer support for religious schools is a patent violation of the Establishment Clause. Critics also note that because vouchers do not cover the entire amount of tuition at a private school, the option of private school remains out of reach for the lowest-income students. Opponents of private school vouchers further claim that vouchers rob public schools of funds because funding is based in part on student enrollment. Finally, critics maintain that vouchers implicate other constitutional provisions, such as the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT, because they provide taxpayer funds to institutions that may discriminate on the basis of race, religion, disability, or socioeconomic status.

Supporters of private school vouchers have argued that voucher systems are actually protected by the First Amendment. According to advocates, the First Amendment, with its guarantee of the free exercise of religion, protects vouchers because they give devoutly religious parents the same rights as less devout parents: public funding for the education of their children. In this view, educational systems without private school vouchers violate the First Amendment by discouraging religion and placing devout parents at a disadvantage. Supporters contend that vouchers merely provide some balance of rights between devoutly religious parents and less devout or nonreligious parents.

Other supporters of private school vouchers focus on the aspect of choice. Whereas public schools are increasingly perceived as inadequate and dangerous, private schools are viewed by many as offering safe, high-quality education. In response to these perceptions, legislators have offered private school vouchers as a means of escape from public schools. Supporters of private school vouchers assert that they offer potential benefits for impoverished children. Under some proposals, private school vouchers would give a limited number of low-income families another choice for their children's schooling.

Proponents of private school vouchers cite such intellectual stalwarts as JOHN STUART MILL, THOMAS PAINE, and Adam Smith as early advocates of school vouchers. Mill, Paine, and Smith did in fact argue that the fairest and most efficient way to fund public education would be to give parents money that they could spend on tuition at a school of their choice. Detractors counter that these views received no attention until 1955, the year after the Supreme Court outlawed racial SEGREGATION in public schools in BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). According to many voucher opponents, the real driving force behind private school vouchers is an effort to facilitate the flight of white persons from city schools that have large nonwhite student populations.

Proposals for private school voucher systems have been rejected by courts and defeated at the polls, but voucher advocates have been unrelenting. In 1998, in an 8–1 ruling, the U.S. Supreme Court refused to hear a challenge to the Wisconsin school voucher system, which was upheld as constitutional by the Wisconsin Supreme Court in Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998). While the Court's action set no national legal precedent, it signaled a willingness by the Court to permit vouchers.

Wisconsin had been using a voucher system since 1989, but, in 1995, the Wisconsin legislature amended the law. The original voucher plan allowed up to 1.5 percent of Milwaukee public school students to attend any private nonsectarian school of their choice. The new program allowed use of the vouchers for enrollment in sectarian private schools, and it increased allowable student enrollment to 15 percent. But most significant was the mandate that monies would no longer be paid directly to the chosen schools. Instead, a state check would be paid to the student's parent or guardian, who would endorse the check and forward it to the school of choice. Opponents challenged the new law, claiming that it violated the Establishment Clause. The Wisconsin Supreme Court disagreed. It concluded that the statute did not promote religion, but rather provided parents with a "religious-neutral benefit."

The U.S. Supreme Court took up vouchers again in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). The Court, in a 5–4 decision, upheld the constitutionality of a voucher program established for Cleveland, Ohio. The voucher program pays scholarships based on family income, with a maximum annual payment of $2,250 per child. The parents are sent a check which may be used to pay tuition at private and parochial schools. For the 1999–2000 school year, approximately 3,700 children enrolled in the program, with 60 percent of the children from families at or below the poverty level. Of the 56 schools that participated, 46 were church-affiliated and actively taught Christian doctrines; 96 percent of the scholarship students attended the religious schools. The curriculum of these schools intertwined religious beliefs and secular topics.

After a parent filed suit in federal court challenging the law, the district court ruled the voucher program unconstitutional. The Sixth Circuit Court of Appeals upheld this decision, basing its ruling on a 1973 Supreme Court decision, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). The Court in Nyquist struck down a New York tuition reimbursement plan that provided low-income parents with partial reimbursement for sending their children to private elementary and secondary schools only.

The Supreme Court overturned the Sixth Circuit decision. Chief Justice WILLIAM REHNQUIST, in his majority opinion, ruled that the program did not violate the Establishment Clause. Rehnquist stated that the "program is entirely neutral with respect to religion" because "it provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district." The law "permits such individuals to exercise genuine choice among options, public and private, secular and religious."

Proponents of vouchers saw Zelman as a major victory. They believed that the decision cleared the way for similar voucher programs throughout the United States. Opponents reiterated their concerns that voucher programs would take away public education dollars from school systems and divert them to private schools. As of 2003, only a handful of states had enacted some type of school voucher program. A number of states, however, including Louisiana, Texas, and Colorado, had legislation in the pipeline.