A decades-old fight: Public tax dollars for private religious education

By Stephen K. Reeves

Reeves Report
May 2006

Many things have changed in the 70 years of the BJC's existence. One thing that has not changed, however, is the BJC's opposition to school vouchers that use tax dollars to fund religious education. Among the reasons for our opposition: government aid jeopardizes the autonomy of parochial schools, bringing regulations that threaten their essential religious characteristics; and such programs tend to violate the freedom of conscience of taxpayers that oppose government funded religion. While we affirm the right of parents to choose a private religious education for their children, we oppose using public funds to support private religious goals.

The decades-old controversy over vouchers is as intense now as ever, as illustrated by recent events. The intensity increased following the June 2002 Supreme Court decision in Zelman v. Simmons-Harris, which narrowly upheld a federal constitutional challenge to a voucher program. The BJC filed a brief in that case asking the court to rule the scheme unconstitutional. The program was created as a specific response to an asserted crisis in the Cleveland public school system and contained conditions that will not be met in every case. Of course, that ruling was not the last word on vouchers. Voucher schemes are impermissible under some state constitutions, many of which contain religious liberty protections stronger than in the federal Constitution. Since Zelman, these "no-aid" provisions have been the basis of litigation.

In January the Supreme Court of Florida ruled against one of its state voucher programs. Florida's strict no-aid provision was one basis for the challenge. The court's decision, however, relied on a provision requiring "a uniform, efficient, safe, secure and high-quality system of free public schools," finding the program improperly diverted public dollars into a separate private system that competed with the constitutionally required public schools.

Opponents of parochial school vouchers scored another recent victory when the Maine Supreme Court upheld a voucher program that specifically excluded religious schools from participation. The court held that while Zelman permits authorization of some form of tuition payments to religious schools, more recent decisions including Locke v. Davey hold that a state is not compelled to do so. The court held the Maine program falls within the "play in the joints" in the two religion clauses—neither improperly infringing on the Free Exercise Clause nor violating the Establishment Clause.

Voucher advocates in Georgia have instituted a different strategy. Rather than creating a voucher program that might be ruled unconstitutional under the state's no-aid provision, they advocate a change to the Georgia Constitution. The proposal, which so far has failed, would remove the no-aid provision and allow increased government funding of religious ministries and religious schools.

My home state of Texas continues to struggle to properly reform its public education funding. Through two regular sessions and three special sessions the legislature has failed to reach a consensus. Last fall a bill proposing a pilot voucher program was brought to the House floor with the support of much of the state leadership and major campaign donors. The proposal was dramatically defeated by representatives of rural districts. The defeat led a single determined voucher proponent, Dr. James Leininger, to contribute over $2.4 million in the Republican primary alone in an attempt to defeat those that rejected the plan.

The voucher push continues at the federal level as well. Last fall, in response to Hurricane Katrina, Congress passed an educational aid package that included payments from public school districts to private schools in areas directly impacted by the storm or areas that accepted displaced students. The BJC opposed the effort. This first-ever national voucher measure passed in part due to promises that it would be a one-time-only emergency measure. As many voucher opponents feared, in April it appeared the program would be used as a means to establish a more lasting voucher system. A last minute compromise funneled the much needed additional assistance to public school districts.

Despite continuing voucher efforts, it has not yet been determined that voucher programs actually contribute to a better educational system. Effectiveness studies are often difficult since private schools are rarely held to the same accountability standards increasingly demanded of public schools. While statistics often offer conflicting evidence, not one study has conclusively determined that vouchers produce better results than public schools, and in some cases they fair worse.

Few political issues produce as much passion as public schools and religion. Vouchers will undoubtedly continue to be debated as each state considers the best way to provide public education in an environment increasingly hostile to public schools. While a voucher system may be designed to pass constitutional muster, what is constitutional and what makes for good public policy supportive of religious liberty are not always the same. We encourage you to monitor voucher legislation in your state, get involved and contact the BJC for support.