Vouchers remain contentious issue in debate over government aid to religion

By Jeremy Leaming
First Amendment Center

School voucher programs give public funds to parents to send their children to private schools, including religious ones. Vouchers have been touted as providing greater educational opportunities to students.

A number of states have enacted the programs. Polls show popular support for them.

Yet programs enacted in Ohio, Maine, Arizona, Pennsylvania, New York and Vermont have either ceased operation or are functioning under a constitutional cloud of uncertainty. Moreover, a voucher program passed by Congress earlier this year for the District of Columbia was quickly vetoed by President Clinton. Only one voucher plan so far — in Wisconsin —has been found constitutionally permissible. In all states, the programs have been challenged by civil rights groups, taxpayers and parents as violations of the First Amendment's requirement of separation of church and state.

Many legal experts argue that government financing of religious schools violates the establishment clause of the amendment. The clause says: "Congress shall make no law respecting an establishment of religion." James Madison, one of the authors of the Bill of Rights, once wrote that "religion and government will both exist in greater purity the less they are mixed together."

Does the establishment clause, however, mean that state and federal lawmakers are barred from enacting laws allowing government funding of secondary education, even at religious schools?

Proponents of voucher programs argue that the First Amendment is not so stringent as to bar government funding of education simply because of where the education takes place. And they have a judicial decision to support their argument.

In June, the Supreme Court of Wisconsin ruled in Jackson v. Benson that the Milwaukee Parental Choice Program could be expanded to use public funds for religious schools without violating the state constitution or the establishment clause of the First Amendment.

"We conclude that the [voucher program] does not violate the Establishment Clause because it has a secular purpose, it will not have the primary effect of advancing religion, and it will not lead to excessive entanglement between the state and participating sectarian private schools," Judge Donald Steinmetz wrote for the majority.

Regardless of the Wisconsin case, which has been appealed to the U.S. Supreme Court, the simple fact is that establishment-clause jurisprudence remains muddled nearly 30 years after the high court devised a three-part test to determine when a government action or law runs afoul of the separation of church and state.

In 1992, Mary Ann Glendon, a constitutional scholar and professor at Harvard University, wrote that "the Supreme Court's religion-clause case law has now reached the state where it is described on all sides, and even by the justices themselves, as hopelessly confused, inconsistent, and incoherent."

Glendon, however, noted that "one can comprehend a good deal about court decisions by examining what judges do as well as what they say, and by comparing patterns of fact and outcomes in a line of related cases."

It is indisputable that eroding public educational standards, as well as the physical deterioration of many of the nation's public schools, have helped prompt an overwhelming majority of Americans to support voucher programs. The assumption is that private schools — religious or secular — are better than public schools because they must answer to their customers' checkbooks.

Nina H. Shokraii, education policy analyst for the conservative Heritage Foundation, noted earlier this year in a voucher progress report for the group that research had revealed a "continued decline in public school test scores, level of safety, availability of teaching supplies, and overall lack of accountability, especially in prominent cities like the District of Columbia."

Shokraii also cited a poll conducted by the Center for Education Reform that found 82% of the public favored voucher programs.

It is doubtful, however, that when the high court does review a challenge to a government voucher program, the justices will devote much of their opinions to educational policy. Supporters and opponents alike hope the Supreme Court will agree to review the Wisconsin Supreme Court decision upholding Milwaukee's voucher program.

Nonetheless, Glendon wrote in 1992, vouchers do more than give students a chance to escape inadequate public schools. In fact, Glendon maintained, vouchers offer parents and children greater freedom to practice religion.

Glendon said that the Supreme Court has required public schools "to be rigorously secular," while striking down "most forms of public assistance to parents who desire to protect their children from an educational system that is often actively promoting values that are profoundly at odds with the family's religious convictions. The net result has been that a crucial aspect of religious freedom can be exercised only by families wealthy enough to afford private education after paying taxes to support public schools.

"It is unfortunate, I believe, that so much attention and energy have been expended for and against prayer in public schools, when the real issue is the current state of the public schools themselves, and the growing sense of many parents that they are losing the struggle for the hearts and minds of their children," she concluded.

Joseph Bast and David Harmer of the Cato Institute, a libertarian think tank, echoed Glendon's concerns in a 1997 policy analysis.

"The public schools' near monopoly of education in America poses, to the true conservative or libertarian, a genuine threat to all our other liberties, including those of religion, association, and speech," they wrote.

According to Bast and Harmer, "most of the parents who choose private schools do so out of a religious conviction: they oppose the secular humanism taught in government schools and want their children to learn their values and religious beliefs. It is a well-established legal principle that no one should be required to pay a tax penalty to exercise a constitutionally guaranteed right."

Opponents of voucher programs, such as the American Civil Liberties Union, Americans United for Separation of Church and State, People for the American Way and National Education Association, however, argue that the First Amendment's religious-liberty clauses mandate that government be neutral on matters of religion.

According to voucher opponents, government neutrality toward religion does not permit government funding of sectarian schools.

"The establishment clause not only guarantees against a national religion, or preferential treatment of one or more religions, but also against funding of religious education," Marc Stern, an attorney for the American Jewish Congress, stated in a friend-of-the-court brief submitted last month to the U.S. Supreme Court.