In 2002, the United States Supreme Court agreed to hear a case challenging the constitutionality of Cleveland's school voucher program. Beginning in 1996, the Cleveland public school district had made vouchers, or "scholarships," available to about 2000 students annually to help pay their tuition in private schools. Most voucher recipients came from low-income households with children who had attended public schools in the past. The vast majority had used their vouchers to transfer to religious schools. The program had been introduced to the public as an experiment aimed at increasing the educational options for poor children attending Cleveland’s underachieving schools, but it quickly came under attack for being a potential threat—not a remedy—to Cleveland’s struggling school system. Moreover, critics charged, the program ran roughshod over the separation of church and state; public money was being funneled to church-affiliated schools teaching specific religious doctrines.
Interest in the case extended far beyond Cleveland. In virtually every state, parents of private school students and some educational reformers had rallied to promote vouchers. And a handful of other states had already implemented various forms of state assistance to private school parents. A few experimented with vouchers; others offered parents tax deductions or credits for the expenses incurred in sending their children to private schools, both religious and secular. The Cleveland case, however, was the first time that a voucher program had been considered by the Court, and the implications for the future of this movement were huge.
While the question before the Court in 2002 was whether Cleveland’s voucher program violated the establishment clause of the Constitution, the debate surrounding vouchers has ranged far beyond its First Amendment implications. Supporters of vouchers argue that they provide much needed assistance to parents seeking alternatives to underperforming public school systems. Low-income students, in particular, need vouchers so that they can have access to the educational choices more affluent families already enjoy. Supporters also argue that vouchers will introduce a more competitive educational market, encouraging all schools—both public and private—to innovate and improve.
But voucher opponents counter that vouchers will only make private education more affordable to middle- and upper-income families. The vouchers that have been proposed ($2250 annually in Cleveland, for example) are not large enough to cover all tuition and expenses, and therefore poorer children still will be unable to afford private schools. In addition, the increased flight of wealthier students to private schools will rob the public system of crucial support from upper- and middle-class families. Public schools will become isolated institutions serving only the poor and politically impotent.
For the most part, the church-state question has been lost in this policy discussion. Voucher supporters, in particular, tend to deemphasize it. Recognizing that the separation of church and state is a fundamental tenet within American ideology, they tend to talk more about choice—a less contentious American value. And in supporting vouchers, they usually talk more about academic standards, school safety, and classroom discipline than about religious instruction. In fact, the religious courses taught in these schools' curricula are often acknowledged only through shielded references to "values-based" education. Supporters speak less about courses in scripture and doctrine than about the "normatively enriched education" that public schools are supposedly unable to provide.13
Opponents of vouchers are generally more willing to play the religion card. But if voucher supporters are disingenuous in the ways they talk about religion, their opponents can be flat-out inflammatory in their rhetorical choices. For example, the Anti-Defamation League ignores all the arguments about academics, safety, and choice and notes instead that vouchers would force American taxpayers to support the "religious indoctrination of school children at schools with narrow parochial agendas." (Italics added.) If the ADL is to be believed, students at religious schools are subjected to relentless "religious training. . . . [R]eligion permeates the classroom, the lunchroom, even the football practice field." Pushing the argument even further, the ADL argues that "some private schools promote agendas antithetical to American ideals. Under a system of vouchers, it may be difficult to prevent schools run by extremist groups like the Nation of Islam or the Ku Klux Klan from receiving public funds to subsidize their racist and anti-Semitic agendas."14
Hyperbole has always been a part of American political debate—but as always, it doesn’t help us very much in resolving the real questions. Do vouchers threaten the wall of separation between church and state? Are they incompatible with the establishment clause of the Constitution?
On 27 June 2002, the Supreme Court offered its answer. In Zelman v. Simmons-Harris, the Court held that since the purpose of Cleveland’s voucher program was to advance a legitimate secular objective, educational opportunity, and since ultimately individual parents exercised the choice of where to spend their vouchers, the city’s program did not violate the establishment clause. Some observers were shocked, but most Court-watchers recognized that the ruling was consistent with previous decisions. For example, in 1983's Mueller v. Allen, the Court held that a Minnesota law allowing parents of both public and private school students to take a tax deduction for tuition, transportation, books, and supplies was permissible because the benefits were not exclusively received by religious school parents. The Court acknowledged in Mueller that tuition-paying parents of religious school students reaped larger benefits, but perhaps signaling a sympathy with religious schools that would culminate in Zelman, the Court held that "whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools."15 Even more broadly, the Zelman decision was consistent with a much longer trend with the Court toward permitting more extensive forms of assistance to religious schools. In 1947, the Court permitted—but only with considerable reluctance—religious school students to ride public buses at the public expense. But more recent rulings have allowed states to provide religious schools with textbooks, televisions, and lab equipment, as well as numerous educational services such as speech therapy and psychological counseling.
So, according to the Supreme Court, vouchers don’t necessarily violate the First Amendment. The Court added some qualifiers to its ruling: to remain Constitutional a voucher system must be completely neutral in its structure; that is, it must not be designed to steer children toward religious schools. Parents must control where the voucher is actually spent, and there must be secular options available to voucher-wielding parents and students. But if a particular program meets these criteria, it will not violate the establishment clause of the First Amendment.
So did the Court get it right? The broader policy debate aside, was the Court correct in ruling that states may provide public dollars to pay educational expenses of students attending religious schools without violating the First Amendment?
Voucher supporters will say yes. They will point out that the Bill of Rights was expressly designed to prevent the federal government, not the state governments, from encroaching upon individuals’ liberties. Thomas Jefferson, who first used the phrase "wall of separation" to describe the goal of the First Amendment, carefully limited his remarks to the federal government. Even this most ardent of civil libertarians acknowledged (no doubt reluctantly) that the states were free to make their own rules regarding church-state relations.
Supporters will further argue that when the First Amendment was ratified, the vast majority of Americans believed that government retained certain responsibilities to support religion. While they disagreed on whether governments should collect taxes to support one church, all churches, or no church, people on all sides in this debate believed that the government should take steps to ensure a godly, moral citizenry. In 1790, virtually no one challenged the use of the Bible in public schools or the enforcement of Sabbath laws.
But voucher opponents will argue that in 1940, in Cantwell v. Connecticut, the Supreme Court applied the First Amendment restrictions to the states as well as to the federal government. Through what has been labeled the doctrine of incorporation, the Court ruled that neither the federal nor state governments could make laws "respecting an establishment of religion, or prohibiting the free exercise thereof."
Moreover, they might add that the Court has historically insisted that all forms of public aid to religious schools must avoid excessive entanglement between church and state; when the state buys a religious school student a math book, the effect of the state aid is observable and limited. But when it provides tuition assistance to a religious school student, there is no way of easily ensuring that public dollars are not flowing ultimately toward the support of a religious objective.
Vouchers are not likely to go away—nor will the First Amendment. For the time being, the two have been found compatible. And this decision is consistent with the Court’s recent willingness to find more varied forms of state assistance to religious schools permissible under the First Amendment. But given the intense feeling that both sides in this debate bring to both of these issues—the education of our children and the nation's historic commitment to the separation of church and stateseparation of church and state—it is unlikely that this most recent ruling will be the last word on the subject.