Voucher ruling a serious setback for separation of church and state

By K. Hollyn Hollman

Church-State Intersection
July 10, 2002

The Supreme Court answered one very important question in the Zelman case — whether the U.S. Constitution's Establishment Clause bars the use of tax-funded tuition vouchers at religious schools. In programs like the one in Cleveland, where vouchers may also be used at nonreligious private schools (however few), where there are other educational options available (regardless of quality), and where the money is first paid to parents (however superficially), a majority of the Court held that the answer is no.

Despite the pervasively religious character of the participating schools, the lack of any limits on the religious use of public funds and the fact that 96 percent of the voucher program funding went to religious schools, a five-justice majority found the Cleveland program constitutional.

Does this mean that vouchers will be coming soon to your school district? Not necessarily. Such programs face other significant hurdles. First, many state constitutions provide greater protection against state sponsorship of religion than the federal Constitution. The U.S. Constitution sets a floor, not a ceiling. It would not be surprising to find that a voucher program that meets the federal test under Zelman fails to pass muster under a state constitution. The 1986 Witters case is a prime example. Larry Witters, a blind student, sought state vocational rehabilitation funds for use at a Bible college where he was preparing to be a pastor. He was successful at the U.S. Supreme Court, but on remand the Washington Supreme Court found that the state's constitution prohibited the funding.

Second, in addition to state constitutional claims, the Zelman case leaves room for other legal challenges. While the Cleveland program required participating schools to admit students without regard to race, national origin or religion, it did not address other civil rights and regulatory issues. Does government funding change the nature of certain exemptions the schools enjoy as religious institutions? As in "charitable choice," for example, there will be litigation if the government funds employment discrimination.

Finally, passing a voucher program is not easy politically. Vouchers have always caused controversy in debates about public education. There is certainly no national consensus that they lead to higher academic achievement or are more cost-effective than public schools. In Congress and in recent state referenda, voucher proposals were soundly defeated.

Whatever the consequences for public education, the decision delivers a blow to the separation of church and state. Most significantly, the swing voter has firmly taken a side. Justice O'Connor argues that her opinion — albeit an "important step" — is in line with earlier cases. She acknowledges, however, that a significant portion of program funds reach religious schools without restriction, something the Court has never before approved.

Although alarming, the Zelman decision is not an unmitigated disaster. The majority opinion does not make it constitutional for the government to fund religious schools with direct grants. Nor does it allow funding in the absence of other nonreligious choices, and the government must not steer vouchers toward religious schools.

As the voucher debate moves to state courts and legislatures, church-state concerns will continue to be important. Government regulation of religious schools will increase, changing the way in which they provide education. Political demands for accountability in performance will reach those schools previously unencumbered by such standards. Most importantly, as the dissenting justices noted, the religious teachings of participating schools will come under public scrutiny, increasing the risk of sectarian strife.

In short, our mission to defend and extend religious liberty — already a challenge — just became more difficult.