The U.S. Supreme Court gave the green light to school vouchers in the 2002 case Zelman v. Simmons-Harris, clearing the way for states to create programs that provide public funding for religious schools.
But the Zelman decision addressed a specific program that served children from poor families in Cleveland. And the voucher programs that have proliferated in the past 15 years look very different and serve different purposes from the local Cleveland program.
The court ruled 5-4 that the Cleveland voucher program didn’t constitute a state endorsement of religion – and thus a violation of the establishment clause of the First Amendment – because the tuition vouchers went to the students’ parents, who then directed the funding to the schools they chose.
Indiana Chief Justice Brent Dickson relied on similar reasoning in Meredith v. Pence, the March 2013 state Supreme Court ruling that found Indiana’s voucher program did not violate the state constitution’s ban on state funding for religious organizations.
But some of the justifications the Supreme Court cited for supporting vouchers in Zelman don’t apply to many of the two dozen or so voucher programs that now operate in 15 states, with more likely to come.
For example, the court noted that Cleveland religious schools participating in the voucher program couldn’t discriminate on the basis of religion. As a study led by Indiana University education professor Suzanne Eckes makes clear, many of the current voucher programs – including Indiana’s – clearly can and do discriminate on the basis of students’ and parents’ religion.
The Supreme Court also said in the Zelman decision that a voucher program must serve a legitimate secular interest. In Cleveland, it was to give families an alternative to low-performing public schools. But in Indiana, vouchers can be available to nearly any family that meets generous income requirements, regardless of whether the local public school is successful.
Surveys have shown the primary reason parents choose vouchers schools is for religious instruction, raising additional questions about whether the program is serving a secular purpose or if, in practice, its chief purpose is to promote religion.
The late Chief Justice William Rehnquist also observed in the Zelman decision that religious schools were just one of many options available to voucher-eligible Cleveland students, who could also attend secular private schools or public magnet schools. But in Indiana, the only alternatives to local public schools for most students are religious schools. For example, in Bloomington, the sixth largest city in the state, four schools participate in the voucher program, and all are religious schools.
Eckes said all of this suggests voucher programs could face new legal scrutiny. They arguably run afoul of the establishment clause – what Thomas Jefferson referred to as the wall of separation between church and state. If not that, the widespread religious discrimination should raise concerns about the 14th Amendment’s guarantee of equal protection under the law. And some voucher schools appear to discriminate against special-needs students, which could raise issues with the Individuals with Disabilities Education Act or the Americans with Disabilities Act.
Mounting a new legal challenge to vouchers might not be a good strategy, given current or impending conservative majorities in the courts. But neither should we concede that vouchers are a matter of settled law and that states can do whatever they want without worrying about the Constitution.