Voucher programs prompt debate over meaning of separation of church and state

By Jeremy Leaming
First Amendment Center

Both sides in the debate over whether school voucher programs are constitutional claim to uphold the principle of government neutrality toward religion.

Opponents argue that giving government aid to religious schools diminishes the financing available to public schools and impermissibly favors religion. Voucher supporters, however, claim that the Supreme Court has long given up the idea that government aid to religious schools automatically violates the establishment clause of the First Amendment.

The concept of neutrality in religious-liberty jurisprudence is not terribly old. It was first put forth in the Supreme Court's 1947 ruling in Everson v. Board of Education.

Although the Everson court let stand a New Jersey law that reimbursed parents for the cost of transporting their children to school, even private religious ones, it nonetheless based its concept of neutrality on a strong no-funding principle.

Starting with the Everson decision, the high court set out to define neutrality in establishment-clause cases as demanding a "high and impregnable wall of separation."

Justice Hugo Black, writing for the Everson majority, claimed that the establishment clause barred taxes from being "levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." Moreover, Black wrote that "neither a state nor the federal government can openly, or secretly, participate in the affairs of any religious organizations or groups and vice versa."

In a dissenting opinion in Everson, Justice Wiley Rutledge stated: "We have staked the very existence of our country on the fact that the complete separation between the state and religion is best for the state and best for religion. It is only by observing the prohibition rigidly that the state can maintain its neutrality and avoid partisanship in the dissensions inevitable when sect opposes sect over demands for public moneys."

A year later, the Supreme Court in McCollum v. Board of Education invalidated an Illinois public school "released time" program under which teachers were permitted to offer religious classes in public schools. Following its concept of neutrality in Everson, the justices found that the "First Amendment rests on the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere."

Then the strict no-aid attitude of the Supreme Court began to soften.

Despite the apparent ban on government aid to religious schools delivered by the Everson court, in 1968 the high court in Board of Education v. Allen upheld a state program providing textbooks for secular studies to sectarian school students. The majority of justices in Allen found that the state program did not have a religious purpose, accepting the state's argument that it was implemented to aid the secular education of students.

In 1971, the high court created a three-part test in Lemon v. Kurtzman to decide when government actions subvert the neutrality required by the establishment clause. The court ruled that a given law must have a secular purpose, must have a primary secular effect and must not excessively entangle government with religion.

Between the early 1970s and the 1990s, the Lemon test was used in virtually all establishment-clause cases. The test has been used to invalidate state-sponsored prayer, Bible readings and religious symbols in public schools. And in 1973, the high court used Lemon to invalidate a New York state aid program to religious schools.

According to attorneys for the National Education Association, People for the American Way and an array of other voucher opponents, the high court's ruling in Committee for Public Education v. Nyquist in 1973 is the court's controlling word on the constitutionality of private-school voucher programs similar to the ones now being challenged in places such as Ohio and Wisconsin.

In Nyquist, the high court invalidated a New York state program that provided tuition reimbursements to poor parents whose children attended private schools, 85% of which were religious.

Even though the court found that New York had attempted to ensure the secular effect of the program by making the payments directly to the parents, it ruled that the program had a primary effect of advancing religion.

Justice Lewis Powell, writing for the majority, noted that "it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools."

Those who affirm the constitutionality of voucher programs argue that Nyquist is not the high court's final word on the matter. They say a string of high court cases since Nyquist suggest that the court is ready to embrace voucher programs.

Christopher Eisgruber, a constitutional law scholar and professor at New York University, told freedomforum.org that he believes the Supreme Court "is ready to overrule" Nyquist.

Eisgruber said that Nyquist "cuts strongly against the constitutionality of vouchers."

Those arguing that Nyquist is good law often maintain that "whatever else the establishment clause prohibits, it definitely bars government from funneling public funds into the coffers of church schools," Eisgruber said. "There are others who think the crucial question is about equality or absence of any special preference programs and that government can subsidize education so long as it does not prefer religious schools."

He added that he believes that since Nyquist, the Supreme Court has moved closer to the idea that if set up properly voucher programs can be constitutional.

Eisgruber said that "the Constitution neither prohibits nor compels the government to provide parents with vouchers." Instead, he said the Constitution "permits government to make vouchers available to private and religious schools."

Citing two recent Supreme Court opinions, Eisgruber concluded that "the government is certainly free to make money available for education on a non-preference basis."

First, Eisgruber noted the high court's 1995 ruling in Rosenberger v. University of Virginia as an example of government funding of religion that did not amount to a violation of the separation of church and state.

The Rosenberger court ruled that the University of Virginia could not exclude a Christian publication from receiving student-fee funding made available to other student publications.

In a concurring opinion in Rosenberger, Justice Sandra Day O'Connor wrote: "We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or don't worship. This insistence on government neutrality toward religion explains why we have held that schools may not discriminate against religious groups by denying them equal access to facilities that the school makes available to all."

Also citing a high court decision since Nyquist, Eugene Volokh, a First Amendment scholar and UCLA law school professor, recently wrote in The New Republic that the constitutionality of vouchers "should be clear."

"The best way to read the Establishment Clause is that it requires neutrality with respect to religion, not exclusion of religion from even-handed government benefits, which is in fact a form of discrimination against religion," wrote Volokh.

In 1986, the Supreme Court ruled in Witters v. Washington that a state aid program that provided public funds to a disabled student to attend a Christian college did not violate the establishment clause. According to the court, because the Washington state program was made available to all students, regardless of where they attended school, there was "no financial incentive for students to undertake sectarian education."

Volokh said the Witters court helped create a clear establishment-clause principle.

"If people individually decide to route their tax-supported paychecks, welfare checks, or scholarships to even pervasively religious institutions, there's no constitutional problem — so long as the government distributes the money without regard to religion," Volokh wrote.

Tom McCoy, a constitutional law scholar and professor at Vanderbilt University in Nashville, Tenn., told freedomforum.org that the reasoning in Nyquist was too simplistic and that the Supreme Court had "in recent cases decided that the mindless black-letter law of Nyquist is no good."

"Many of those who oppose vouchers do so with a simple view of the kinds of government actions that the establishment clause prohibits," McCoy said. "Often their position is that any government aid that finds its way into the hands of religious schools is a per se violation of the establishment clause."

Joining Eisgruber and Volokh, McCoy said he believed that because of high court decisions since Nyquist, the "court is far more likely to sustain a well-structured voucher program."

One of the decisions McCoy noted was the Supreme Court's 1983 ruling in Mueller v. Allen. In that case, the court said that a Minnesota law giving tax breaks to parents for educational expenses, even if their children attended a religious school, did not violate the establishment clause.

McCoy also noted that last year, in Agostini v. Felton, O'Connor wrote that government aid to religious schools can be constitutional 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."

Michael McConnell, a constitutional law scholar and professor at the University of Utah in Salt Lake City, also told freedomforum.org that the Supreme Court had altered its understanding of government aid to religious schools.

"The court has not struck down a neutral aid program since 1985," McConnell said. "The fact is there has been government aid going to religious institutions for years that is totally uncontroversial and had been upheld in a number of different ways."

McConnell added that Nyquist was "wrongly decided and a destructive decision." He said that the decision "temporarily prevented states and cities from engaging in the most promising types of educational reform."

A line of Supreme Court decisions following Nyquist has indicated the court is moving away from its reasoning in Nyquist, McConnell said. McConnell, in a brief submitted to the Supreme Court in support of the Milwaukee voucher program, wrote that if the Wisconsin Supreme Court had read Nyquist as demanding an invalidation of the voucher program, then it "would have created a conflict with a long line of [the Supreme Court's] cases recognizing the legitimacy of government programs that aid religious and secular institutions on a neutral and evenhanded basis through the independent choices of private individuals.

"And it would have set the Establishment Clause on a collision course with other clauses of the First Amendment, which not only do not command, but positively forbid, discrimination against individuals or groups on the basis of their religious character or speech," McConnell wrote.