What happens if voucher plans are upheld?

By Jeremy Leaming
First Amendment Center

If the U.S. Supreme Court decided that school voucher programs were constitutional, then would government neutrality toward religion be served or undermined?

Opponents of voucher programs, such as the National Education Association, the American Federation of Teachers, and a flock of civil rights groups, argue that they essentially coerce taxpayers into supporting religion, thereby eroding the establishment clause of the First Amendment.

Rob Boston, assistant communications director for Americans United for Separation of Church and State, recently suggested that a high court ruling in favor of vouchers would destroy not only the public schools but also the establishment clause.

"Public school bashers hope to turn enough Americans against public schools so that ideas like vouchers and privatization become more palatable," Boston wrote in the latest issue of the group's magazine Church & State. "If they are successful, the first casualties will be the constitutional concept of church-state separation and the more than 45 million American children who attend public schools."

According to Boston, voucher proponents "would like nothing better than to get rid of public schools and replace them with a network of private sectarian schools, including fundamentalist Christian academies and home schooling."

Marc Stern, an attorney with the American Jewish Congress, echoed Boston's concern about a devalued establishment clause.

"I think a lot of us believe that a voucher program would be detrimental to the establishment clause," Stern told freedomforum.org "If the Supreme Court upholds a voucher program, such as Milwaukee's, it seems to me the court would have to engage in a whole-sale evaluation of the establishment clause."

Attorneys for taxpayers ch allenging the Wisconsin voucher program asserted in their brief submitted last month to the U.S. Supreme Court that if the program were allowed to stand, the separation of church and state principle of the First Amendment would be greatly weakened — merely because of an appearance that government favored religion.

"These voucher programs implicate all of the core concerns of the Establishment Clause: by offering publicly funded sectarian private education as the principal alternative to public schooling, they can only be regarded as advancing religion and creating a symbolic union between church and state," they wrote.

The high court has not announced whether it will review the Wisconsin voucher case.

Last year, a state appellate court in Ohio invalidated a Cleveland voucher program, practically identical to Milwaukee's, concluding the program gave the appearance of a government endorsement of sectarian schools.

"As a result of the lack of public school participation in the [Cleveland voucher plan], benefits in the programs are limited, in large part, to parents who are willing to send their children to sectarian schools," Judge John C. Young wrote in Behr v. Goff. "Parents of scholarship recipients do not have a full opportunity to expend aid to a wholly secular education.

"The lack of opportunity to apply scholarship aid toward a secular education, when coupled with the well-documented failings of the Cleveland City School System, creates a strong incentive for students to undertake sectarian education," Young continued. "In short, the lack of public school participation in the scholarship program skews the program toward religion."

Michael McConnell, constitutional law scholar and professor at the University of Utah, dismissed arguments that a pro-voucher high court ruling would amount to a re-writing of establishment-clause jurisprudence or an erosion of the separation of church and state.

In fact, McConnell said that voucher programs support the "spirit of the First Amendment" by creating diversity among schools.

"Yes, voucher programs may spur more private education," McConnell told freedomforum.org "But that's not a bad thing, any more than it is a bad thing we have private religious universities. Voucher programs will enhance our education systems, for they will be less centered on majoritarian concerns. Today the secular elite have the schools they like and everyone else has to pay twice."

Vanderbilt University professor Tom McCoy said it was disingenuous for voucher opponents to argue that the separation of church and state would be harmed if vouchers were found constitutional.

"The 'wall of separation of church and state' analogy has never been sound," McCoy told freedomforum.org "The state has always provided fire and police protection to the churches. There has never been a wall of separation of church and state.

"The question really is whether the state has moved from a position of neutrality to a position where it favors the churches or other religious institutions over nonreligion," McCoy said. "The government is barred from giving preferences to religion. As long as government is aiding religion and nonreligion alike, then I don't see an establishment-clause problem. Such problems arise when government provides preferential treatment or competitive assistance to religion."

Also, the fact that more parents might use their vouchers to send their children to religious schools — therefore diminishing enrollment in the public schools — does not mean voucher programs favor religion, McCoy said.

"We must remember that the creation of the public school system unintentionally rewarded students for going to public schools instead of religious ones," McCoy said. "In essence, the government offered a free education on condition the student give up the right to go to a parochial school, which is a classic reward to forgo a First Amendment freedom.

"The only way you can argue that voucher programs aid private religious schools is to ignore the fact that for years the government disadvantaged the sectarian schools by paying students to go to public schools," McCoy said. "The government was first screwing the parochial schools and now it wants to unscrew them."

McCoy said he hoped the high court would "belly up to the bar" and offer a "clear set of rules and guidelines" on the constitutionality of vouchers. Then, he said, the country could move on to the more-important policy debates surrounding vouchers.

"We need to be discussing whether vouchers are good for education," McCoy said. "Are vouchers conducive to our history as a melting-pot society? Would vouchers create cultural balkanization?"