Voucher programs go beyond what court approved

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.

United States Supreme Court Building

United States Supreme Court Building

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.

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Free speech and free riders

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

“Or the right of public employees to free-ride on other public employees.”

Who knew that second paragraph is what the Founding Fathers were thinking when they drafted the First Amendment to the Constitution? Apparently a majority of the Supreme Court knows.

According to news coverage of Monday’s oral arguments, the five conservative members of the court are likely to rule in favor of the plaintiffs in Friedrichs v. California Teachers Association, a lawsuit that claims charging “fair-share” fees for union representation violates the First Amendment.

California teacher Rebecca Friedrichs and her fellow plaintiffs argue that the fees amount to forced support for a political organization – the California Teachers Association – whose policies and positions they don’t support. But public-sector unions can’t use fair-share fees for lobbying and politics. The fees can pay only the costs that unions incur for bargaining contracts and representing employees.

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