All of this is a work in progress. It’s been a good seven or eight months since I’ve had to do any legal research and I’m a little rusty. Not having case books on hand makes the task a bit more daunting as well. However, as I read more on the issue of school choice (including, but not limited to, voucher programs) I’ll keep you posted.

We now come to the most famous of School Choice options, vouchers, which come in a few different forms.

Vouchers, in general, are forms of payment from the government to individuals for the purchase of a good or service. Education vouchers can be used for certain educational goods and/or services such as tuition, books, transportation or for all expenses associated with education. Examples of vouchers include Food Stamps, Medicaid, the GI Bill, and Pell Grants.

Means-tested vouchers are available only to low-income families and direct education funds to parents for use at the school of their choice (be they public, private, secular, or religious).

Failing school vouchers allow parents to accept education funds for use at a school of their choice if their children attend schools considered failing by the government.

Universal vouchers allow parents the option of using education funds to send their children to a school of their choice.

One question that must be answered is, where should the funds be directed -to the parents or the institution? Directing funds to parents to use at an institution of their choice could lead to abuse unless, like Food Stamps and Medicaid, there is a program which would prohibit (or at least limit) where the funds could be used and on what goods/services. On the other hand, there is the possibility that directing funds directly to religions schools could rub some folks the wrong way. However, both Pell Grants and the GI Bill (vouchers used for higher education) offer funds directly to the institution of the student’s choice – be that a public, private, or religious institution – and this has withstood constitutional muster. In my opinion, the best option would be to offer the voucher directly to the parents, as this would eliminate direct involvement of the government in the private schools (thus preventing the government from claiming authority over the private school) and limiting court challenges on the ground that the program violates the Establishment Clause.

There are few Supreme Court decisions that have dealt with vouchers, either directly or indirectly. Here are summaries of two of those cases:

Everson v. Board of Education (1947)
A New Jersey law allowed reimbursements to parents for transportation costs of sending their children to school. This money was given to parents whether their children attended private or parochial schools. Although this case deals with reimbursements (a better option, in my opinion, than vouchers) it deals with the issue of whether or not the government can constitutionally use tax dollars for programs that may or may not be religious in nature.

The question presented to the Court was whether the New Jersey statute violated the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment. The Court said that, no, it did not violate the Establishment Clause. Justice Black argued that programs like bussing and police and fire services provided to parochial schools are a completely separate function (a fireman would not let a Christian school burn to the ground simply because one believes that tax dollars shouldn’t be used for religious organizations). The law did not provide money directly to the schools, nor did it support them directly; it was merely a program enacted to help parents get their children to school.

Again, while this case does not deal with vouchers directly, it does deal with the issue of whether or not it is Constitutional to return government funds to parents that may or may not be used in religious schools.

Zelman v. Simmons-Harris (2002)

Ohio’s Pilot Project Scholarship Program provides tuition aid in the form of vouchers to students in the Cleveland City School District so that students may attend a school of the parent’s choosing. The schools participating in the program are both religious and non-religious in nature, and a slight majority of the students are at or below the poverty line. A group of “concerned taxpayers” sought to enjoin the program, claiming that it violated the Establishment Clause of the First Amendment (as applied to the states through the Fourteenth Amendment.)

The Court ruled that the program did not violate the Establishment Clause because it was part of a vast educational program which sought to provide opportunities to children through various schools and was completely neutral with respect of religion. The funds reached the schools only through the deliberate choice of the parents and the program was open to a wide spectrum of individuals. Rehnquist, who delivered the opinion said, “The program is therefore a program of true private choice.” (Funny how liberals only want “freedom of choice” in one area, eh?)

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