Are vouchers about 'choice' or tax funding of parochial schools?

By K. Hollyn Hollman

Church-State Intersection
March 6, 2002

One can study prior opinions, read the parties' briefs, and even have a front-row seat in the courtroom during oral arguments and still not want to make a prediction on the outcome in Zelman vs. Simmons-Harris. If anything was clear after the Supreme Court hearing in the Cleveland voucher case, it was that the debate over public education and government aid to religion invites polar perspectives.

Three questions raised during oral argument illustrate the struggle the justices will have in deciding this case. Regardless of the outcome, these questions will likely dominate state and local debates about future voucher proposals.

The first question is how to define the scope of "choice" in a given voucher program. In the Cleveland case, the justices must decide whether the constitutional question should be answered in the context of the voucher program alone or by taking into account unrelated public school alternatives. In the Cleveland program, the voucher recipients' choices are constrained by design. For example, private and suburban public schools decide if they will take part in the program. The few students who receive tuition vouchers (less than 10 percent) may only use them at participating voucher schools - almost all of which are religious schools.

Proponents argue that parents have other options within the public school system: to leave their children in the failing schools (with a possible $300 per year tutoring stipend), to transfer them to a magnet school, or to try one of the newly created "community" schools, which are public charter schools. They claim these options diminish the significance of the fact that 99 percent of the vouchers fund religious education. Opponents counter that that the proper focus is on the voucher program alone, within which the choices are limited.

However the range of options is defined, the second question is whether the result reflects government endorsement of religion. During oral arguments, both sides faced tough questions about their position in extreme hypothetical cases. Justice Stevens pressed the lawyers for Ohio on whether they would concede government endorsement of religion if the program consisted of only religious schools. Justices Scalia and Rehnquist asked the other side if the court could approve a program with many secular options and only one parochial school. Neither side was eager to identify where they would draw the line.

The third question is whether a public policy failure, in this case the failure of a public school system, justifies altering the constitutional ban on government funding of religion. While the court has approved some forms of government aid to religious schools when provided as part of a neutral program for public and private schools, it has never approved an unrestricted tuition program. The Cleveland public schools, which have been judicially declared "failing," demand reform. No one disputes that. But are government subsidies of religious education the answer? Justice Scalia implied as much; critics instead promote alternative education reforms, including public school choice programs that would do no harm to our constitutional protections.

The Baptist Joint Committee has been unwavering in its position. Even if the choices for parents were many, we would remain concerned about the crucial issue that got little attention at oral argument - the funding of religious activity. There was no attempt in the Cleveland program to limit the use of tax dollars to secular programs in private schools.

Whatever the proportion of students in religious schools, government funding of religious education and activities ensures an appearance of government endorsement. No matter how severe the crisis in public education, the policy response should not tread on our country's longestablished religious liberty.