Vouchers: Breaching The Wall
Questions and Answers about the School Voucher Debate

2003

Should tax dollars fund religious education? Is aid to parochial schools constitutional or even desirable? Does such aid open the door for government regulation? These are some of the fundamental issues we must address as we consider one of society's most important tasks—the education of children. Americans approach public funding of pervasively religious schools in many different ways. Many are troubled by the perceived failure of the public school system; some want to receive taxpayer assistance for their own schools; others have a veiled agenda to "privatize" all education.

As Baptists, we believe these schemes are unconstitutional and contrary to the historic Baptist commitment to soul freedom, religious liberty and the separation of church and state. Although state legislatures and Congress have debated vouchers for years, the U.S. Supreme Court has never directly addressed the constitutionality of an educational voucher system. In the 2001-2002 term, however, the Court has decided to hear arguments in Zelman vs. Simmons-Harris, a case that focuses on this important constitutional and policy issue. Answered below are some of the pertinent questions in the voucher debate.

What is the fundamental issue to consider about government aid to parochial schools?

Any evaluation of aid to parochial schools must begin with the First Amendment's Establishment Clause: "Congress shall make no law respecting an establishment of religion ... ." The Establishment Clause prohibits government from aiding one religion in particular or all religions in general. Government must be neutral toward religion, neither advancing nor inhibiting it, but leaving it free to allow people of faith to practice their religion as they see fit. The Supreme Court has adopted the metaphor — coined by Thomas Jefferson — of a "wall of separation" between church and state. Both the civil state and religious institutions are better off when neither tries to dominate, do the work of, or give a helping hand to the other.

Generally, how has the Supreme Court treated public financial aid to religious schools?

Under the Establishment Clause, the Supreme Court has struck down most forms of financial aid to parochial K-12 schools. The decisions prohibiting aid are based on the fact that such schools typically are "pervasively sectarian" institutions. That is, they are so infused with religion that it is impossible to isolate and fund only the secular activities. Accordingly, the Court has consistently struck down aid programs that benefit pervasively religious schools or help fund their instructional process. While some non-financial aid has been upheld, these exceptional cases have involved benefits available to all students, regardless of whether they attend public or private schools. Often the programs upheld were designed to benefit handicapped students. Such aid benefits the religious institution only tangentially.

Has the Supreme Court ever ruled on school vouchers per se?

No. However, the Court generally has upheld the wall separating church and state with regard to K-12 public education. A 1973 case, Committee for Public Education and Religious Liberty vs. Nyquist, involved a New York law providing tuition reimbursement grants and tuition tax credits to parents of children attending private schools. The Court held that the grants and tax benefits had the unlawful effect of advancing religion. Unavoidably, the aid would be used to fund sectarian activities, even though the financial benefit flowed through the parents. Consequently, these benefits amounted to an unconstitutional subsidy to religious schools.

What case is often cited by advocates of public aid to parochial schools?

Mueller vs. Allen (1983). Mueller involved a Minnesota law that granted tax deductions for tuition, textbooks and transportation expenses for students of both public and private schools. The Court held that the law was neutral because the tax deductions were given to the parents of all school children and that only an "attenuated financial benefit" flowed to the parochial school. The Court distinguished the passive nature of the deduction from the tuition reimbursements and the "thinly disguised ‘tax benefits'" in Nyquist, which the Court held "actually amount [ed] to tuition grants to parents of children attending private schools." Reaffirming its decision in Nyquist, the Court stated: "the direct transmission of assistance from the State to [religious] schools themselves" would be unconstitutional.

Is assistance given to college students the same as financial assistance provided via private school tuition vouchers?

Financial assistance given to college students is an issue that is often confused with vouchers. In Witters College vs. Washington Department of Services for the Blind (1986), the Court upheld a program of educational assistance for handicapped college students. The Court ruled that use of state funds for tuition to prepare for the ministry did not violate the Establishment Clause. However, Witters does not authorize public assistance at the K-12 level.

The Court consistently has distinguished college assistance from aid to elementary and secondary schools. By federal law, financial aid is provided to qualifying students for tuition at public and private institutions of higher learning. While attendance at the elementary school level is compulsory, enrollment in a college is purely voluntary. Moreover, prospective college students have many more schools from which to choose, both public and private. The presence of that choice, and the subsequent dispersion of students through a variety of educational options, helps ensure that only a small portion of the federal dollars will go to pervasively sectarian institutions.

What other Supreme Court decisions are often mentioned in the voucher debate?

In Zobrest vs. Catalina Foothills School District (1993), the Court upheld a law providing a state-paid sign language interpreter for deaf students attending parochial schools. Nevertheless, Zobrest, like the other cases, offers no support for the constitutionality of a comprehensive voucher program. As in Witters (summarized in the previous question), the Court classified the program as one providing partial disability assistance, not as providing widespread financial support for students attending parochial schools. Accordingly, the program was distinguishable from vouchers in that "no funds traceable to the government [would] ever find their way into sectarian schools' coffers," stated the Supreme Court.

Likewise, the Supreme Court's decision in Agostini vs. Felton (1997), does not support the constitutionality of vouchers. The Court held that secular, supplementary and remedial educational assistance could be provided on parochial school campuses in much the same way as was authorized in Zobrest. In this limited decision, the Court quite properly refused to overrule settled law that prohibited the use of public funds to finance religious enterprises. The Court simply concluded that there is no constitutional significance to allowing public school teachers to teach remedial subjects across the street in a trailer, but prohibiting it in a parochial school classroom.

What is the most recent Supreme Court decision dealing with aid to parochial schools?

Mitchell vs. Helms (2000) concerned the use of federal funds to provide computers and other instructional equipment to parochial schools. Although the Court upheld this aid, the opinion in Mitchell was only a plurality of four justices, not a majority. Justice Clarence Thomas' plurality opinion found the aid permissible because it was available to all and was not religious in content. Justice Thomas, however, recognized that special Establishment Clause dangers may arise "when money is given to religious schools or entities directly ... ." Justice O'Connor, joined by Justice Breyer, criticized the "unprecedented breadth" of Justice Thomas' opinion, and concurred only in the result of the case. She found the aid permissible because of a number of safeguards present in the education program, but expressed grave concerns about other direct aid to religious institutions. Justice Souter's dissent rejected the majority's test of "even-handedness," maintaining that the aid constituted impermissible government support of religion. Accordingly, Mitchell gives only scant support for a voucher program. A typical voucher plan, such as the one at issue in Zelman, involves the expenditure of public funds resulting in substantial economic benefit to pervasively sectarian schools at the K-12 levels.

Trying to alter the character of these public funds by passing educational vouchers through parents' pockets does not change the fact that significant tax dollars will eventually be paid directly to parochial schools. This has the effect of advancing religion and thereby violates the Establishment Clause of the First Amendment.

How did the lower court treat the voucher case now before the Supreme Court?

In Zelman vs. Simmons-Harris, the 6th U.S. Circuit Court of Appeals voted 2-1 to affirm a lower court decision holding that the Cleveland voucher program unconstitutionally advanced religion because most of the schools that received voucher money were religious schools. In fact, for the 1999-2000 school year, 96 percent of the students in the program were enrolled in religious schools. Eighty-two percent of the schools registered to participate were church-affiliated. The 6th Circuit held that, "to approve the voucher program at issue would approve the actual diversion of government aid to religious institutions in endorsement of religious education," which would be inconsistent with Supreme Court precedent.

Apart from the constitutional question, how have Baptists historically viewed government aid to parochial schools?

Historically, Baptists have spoken out on behalf of religious liberty and have staunchly defended church-state separation as the political mechanism for protecting that liberty. This commitment to religious liberty has led many Baptists to oppose aid to religion in general and to parochial schools in particular.

Moreover, we recognize that when religion is subsidized by government, it has a tendency to become lazy and dependent. How can religion raise a prophetic fist against government when it has its other hand open for a handout? The answer is, it cannot. This is what our colonial Baptist ancestor John Leland had in mind when he said:

The fondness of magistrates to foster Christianity has done it more harm than all the persecutions ever did. Persecution is like a lion. It tears the saints to death, but it keeps Christianity pure. State established religion, though, is like a bear. It hugs the saints, but it corrupts Christianity.

Authentic religion must be wholly uncoerced. Religion should depend for its support on the persuasive power of the message it proclaims and not on the coercive power of the state. Utilizing the things of Caesar to finance the things of God is adverse to true religion and violates the spirit of freedom upon which it is based. Thomas Jefferson once said, "To compel a person to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical." The same principle applies to religious education.

Public financial aid to parochial schools — in the form of vouchers or otherwise — earns a failing grade. As a Baptist Sunday School teacher from Alabama, Supreme Court Justice Hugo Black, told us: "No tax in any amount ... can be levied to support any religious institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." These programs, in any form, are unconstitutional and violate the historic Baptist — and, we believe, American — understanding about the proper relationship between church and state.