The Legal Case Against School Vouchers (March 1995)

“Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction. . . . The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice. . . .”
–Chief Justice Warren Burger, Lemon v. Kurtzman.

Why Does State Aid To Religious Schools Violate The Constitution?

The Establishment Clause of the First Amendment embodies a fundamental constitutional principle: a state may not provide any financial support to promote religion. State aid to religious elementary and secondary schools, even when that aid ostensibly is limited to supporting secular instruction, violates this basic principle because the religious mission of parochial schools is inextricably intertwined with all of the schools’ activities. When the state provides financial aid to religious schools, it is using public money to promote religion.

The First Amendment’s separation of church and state was a response of the framers of the Bill of Rights to practices such as the use of tax revenue to support religious institutions. As Justice Hugo Black has noted: “These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.” Everson v. Board of Education (p. 11).

The vast majority of private elementary and secondary schools are church-related or religiously affiliated. Even where public assistance is provided to all private schools, nonsectarian as well as sectarian, the primary beneficiaries of state aid inevitably will be religious schools.

Hasn’t The Supreme Court Already Approved Tuition Assistance For Religious Schools?

No. In fact, the Court repeatedly has said that states may not pay any portion of parochial school tuition.

In 1971, the Supreme Court struck down a Pennsylvania law that reimbursed religious schools for teachers’ salaries and textbooks for secular instruction. Even though the state aid was to be used for nonreligious instruction, the Court found that “the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between church and state.” Lemon v. Kurtzman (pp. 620-21).

Pennsylvania and a number of other states responded to that decision by passing a law that reimbursed parents, rather than the schools, for a portion of their private school tuition. The Supreme Court found those laws unconstitutional as well. The fact that the aid went to the parents rather than to the schools made no difference. The state’s purpose remained unchanged–“to provide assistance to private schools, the great majority of which are sectarian.”

“By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid–to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools–are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.” Committee for Public Education & Religious Liberty v. Nyquist (p. 783); see also Sloan v. Lemon.

A state cannot do through indirect methods what it cannot do directly. Tuition assistance for religious school education is prohibited by the First Amendment–regardless of whether the money goes directly to the school or comes to the school indirectly through the parents.

Don’t Students At Religious Schools Already Receive Governmental Benefits?

The Supreme Court has allowed states to include church-related schools in programs such as bus transportation, school lunches, and aid to disabled students. The Court has justified that result by describing those programs as “secular and nonideological services unrelated to the primary, religion-oriented educational function of the sectarian school.” Meek v. Pittenger. Such programs, in the Court’s words, provide only “indirect and incidental benefits to church-related schools.”

The Court has taken a very different view, however, of state instructional aids to private schools, even where the aid is specifically earmarked for non-sectarian instruction. It simply is not possible, the Court has concluded, to separate the secular instruction in church schools from the schools’ religious mission.

“[I]t would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many . . . church-related elementary and secondary schools and to then characterize [the law] as channeling aid to the secular without providing direct aid to the sectarian.

“Even though earmarked for secular purposes, ‘when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission,’ state aid has the impermissible primary effect of advancing religion.” Meek v. Pittenger (p. 365).

Isn’t Tuition Assistance Constitutional When Parents Choose The School?

No. The Supreme Court twice has struck down laws that reimbursed parents for the cost of sending their children to private elementary and secondary schools of their choosing. Because most of those schools are religious, the Court has said, the function of state tuition aid is to unconstitutionally promote religious education.

The Court has permitted states to provide services to students attending religious schools–in one recent case, an interpreter for a deaf student attending a Catholic high school. The fact that the benefit resulted from parental choice was one of the factors in the Court’s decisions. In each of those cases, however, the state aid was available to students attending all schools, public as well as private. As a result, the Court said, the state program created no incentive for students to attend religious schools.

When the state provides tuition assistance, however–whether in the form of vouchers or some other form of state aid–the state provides a direct incentive for parents to send their students to religious schools. Because public schools do not charge tuition, vouchers by their nature may be used only for private schools. Almost all of the private schools at which vouchers can be used are church-sponsored or religiously affiliated.

Even though the decision to send a child to a sectarian or nonsectarian school remains with the parents, the parents’ choices are limited as a practical matter by the scarcity of nonsectarian elementary and private schools. By encouraging parents to send their children to private schools, voucher programs inevitably encourage enrollment at religious schools. The First Amendment forbids the states from this promotion of religious education.

Is The First Amendment The Only Constitutional Problem With Vouchers?

No. Virtually every state constitution has its own bill of rights containing provisions that prohibit state establishment of religion. Many of those provisions contain more explicit prohibitions on state support of religious institutions than the generalized language of the First Amendment. Wisconsin’s constitution, for example, expressly prohibits the use of any money “drawn from the treasury for the benefit of religious societies. . . .”

In recent years, many state courts have interpreted their own constitutions to provide greater protection of individual liberties than those afforded under recent interpretations of the federal Bill of Rights. State courts may well be receptive to challenges to vouchers based on their own constitutional prohibitions against state support for religion, regardless of how the U.S. Supreme Court views the matter under the First Amendment.

Major U.S. Supreme Court Cases On State Aid To Religious Education

Everson v. Board of Education,330 U.S. 1 (1947). The Court upheld a New Jersey law that reimbursed parents for the cost of busing their children to private and public schools.

Board of Education v. Allen,392 U.S. 236 (1968). The Supreme Court ruled that a New York law requiring public schools to lend textbooks to all secondary school students, including those in private schools, did not violate the First Amendment.

Lemon v. Kurtzman,403 U.S. 602 (1971). The Court struck down a Pennsylvania law that reimbursed private elementary and secondary schools, including religious schools, for the costs of teachers’ salaries, textbooks and instructional materials in secular subjects. The state supervision required to guarantee that the aid would be used only for secular instruction, the Court said, would foster “excessive entanglement” between government and religion.

Committee for Public Education & Religious Liberty v. Nyquist,413 U.S. 756 (1973), and Sloan v. Lemon, 413 U.S. 825 (1973). In two cases decided the same day, the Court held that the First Amendment forbids states to reimburse parents for private school tuition. Noting that the vast majority of those schools are sectarian, the Court found that the grants impermissibly provide a state incentive to send their children to a religious school.

Meek v. Pittenger,421 U.S. 349 (1975). The Court affirmed its previous decision in Board of Education v. Allen that a state may lend textbooks to students attending parochial schools but struck down a state law that authorized the loan of instructional materials directly to the schools.

Mueller v. Allen,463 U.S. 388 (1983). In a 5-4 decision, the Court upheld a Minnesota statute allowing state income taxpayers to deduct elementary and secondary school expenses, including tuition, textbooks and transportation. One of the most significant factors that led the Court majority to uphold the law was the fact that “the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools. . . .”

Grand Rapids School District v. Ball,473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985). The Court ruled that public school employees may not teach secular courses at parochial schools because it resulted in excessive entanglement of the public and religious schools.

Witters v. Washington Department of Services for the Blind,474 U.S. 481 (1986). The Court upheld state vocational assistance for a blind student at a Christian college. As in the Mueller case, the Court noted that the funds are available to students attending both public and private schools.

Zobrest v. Catalina Foothills School District,113 S.Ct. 2462 (1993). By a 5-4 vote, the Court ruled that a school district may provide a sign-language interpreter to a student at a Roman Catholic high school. The Court majority observed that the interpreter would be available to the student if he attended a public school and that “no funds traceable to the government ever find their way into sectarian schools’ coffers.”

Freedom From Religion Foundation