Memo on the Constitutional Implications of Voucher Proposals

Document Date: February 4, 1999

02-04-99: ACLU Memo on The Constitutional Implications of Voucher Proposals

I. Constitutionality of Voucher Programs

Voucher proposals pose a threat to the American system of public schools and the constitutional principle that government may not fund or promote religious education. If passed, these voucher schemes would drain the public schools of tens of millions of government tax dollars. Simultaneously, it would redirect tax dollars into the coffers of private religious schools that could use these funds specifically for religious education and indoctrination.

The proposed contribution of public funds to parochial schools would lead to taxpayer-funded religious worship and instruction, sectarian conflict, and deep church-state entanglement. We vehemently oppose all non-public school voucher schemes and strongly assert that these proposals are on a direct collision course with the First Amendment.

The ACLU, a strong supporter of public schools, has always opposed school vouchers, both as a matter of public policy and constitutional belief. If public money is diverted to private religious schools that proselytize, inculcate religious doctrine, discriminate, and actively promote the teachings of a church, the program will run counter to the Supreme Court’s invalidation in the past of most significant forms of direct government financial aid to parochial elementary and secondary schools. Specifically, the Court has struck down tuition reimbursement for parents who send their children to parochial school; salary supplements for parochial school teachers; instructional equipment and materials that could be deployed for sectarian curricular use; and a school aid program that included construction and repair grants, tuition reimbursement, and tax benefits for parents sending their children to religious schools.

To be sure, the Court’s dramatic reversal in Agostini v. Felton has limited and confused this line of authority to a certain extent: in that 1997 case, the Court changed its mind about its prior holding in Aguilar v. Felton, and found that New York’s practice of sending its public school teachers into parochial schools to provide remedial education to disadvantaged students did not have the impermissible effect of advancing religion.

Agostini, however, involved teachers in a special education program geared to students with special needs, not public aid to whole scholastic programs in parochial schools. More to the point, the Court was clearly moved in Agostini by the fact that the public schools would be sending their own teachers into parochial schools rather than handing over public dollars for the salaries of parochial school teachers. Government can assure that the employees of the state do not use their salaries or other public funds to promote religious dogma, but it is impossible to prevent teachers in private religious schools from doing so. Thus, the Court has already moved as far in the direction of accommodating the needs of students in religious schools as we need to go.

The establishment clause provides that “Congress shall make no law respecting an establishment of religion . . .” Under this Clause, the Supreme Court has invalidated every significant form of government financial aid to parochial elementary and secondary schools. The Court has struck down the provision of classes in parochial school students at public expense, Grand Rapids School District v. Ball, 473 U.S. 373 (1985); tuition reimbursement for parents who send their children to parochial school, Sloan v. Lemon, 413 U.S. 825 (1973); salary supplements for parochial school teachers, Lemon v. Kurtzman, 403 U.S. 602 (1971); instructional equipment and materials that could be deployed for sectarian curricular use, Wolman v. Walter, 433 U.S. 229 (1977); and a private school aid program that included construction and repair grants, tuition reimbursement, and tax benefits for parents sending their children to religious schools, Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).

The basis of this commanding line of authority is the pervasively sectarian nature of elementary and secondary religious schools and the recognition that religious inculcation permeates every aspect of parochial education. See, e.g., Meek v. Pittenger, 421 U.S. 349, 366 (1975) (“The very purpose of many of these schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and beliefs. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole.”)(citations and footnote omitted).

Voucher proposals attempt to creatively funnel government aid to religious schools, and inevitably violate the establishment clause. The provision of vouchers for private schools, “including sectarian schools,” will have a “primary effect” of advancing religion. McGowan v. Maryland, 366 U.S. 420 (1961). The overwhelming majority of private schools are religious, and the overwhelming majority of private school students go to religious schools. 1 Thus, a primary effect of this proposal will be to take public moneys and funnel them into parochial schools as tuition dollars where they can be used for any purpose the schools see fit, from devotional instruction and worship, to the purchase of Bibles, to building a chapel. Furthermore, it will be impossible to set up a program that would not trigger the establishment of bureaucratic and administrative machinery set up to oversee and regulate the voucher system. This would deeply entangle government in the affairs of churches.

A constitutional challenge to a federal voucher plan would be controlled by the closely analogous case of Committee for Public Education and Religious Liberty v. Nyquist. In Nyquist, 413 U.S. 756 (1973), the Supreme Court struck down a tuition reimbursement program that gave unrestricted grants of $50-$100 per child to low-income parents who sent their children to private schools, the majority of which were parochial.

Writing for the Court in Nyquist, Justice Powell began with the premise that, had the money gone directly from the government to the schools, it would have been plainly and indisputably unconstitutional. “In absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and non-ideological purposes, it is clear from our cases that direct aid in whatever form is invalid.. . .” Id. at 780.

Given this assumption about direct aid to parochial schools, Justice Powell stated that “the controlling question” was “whether the fact that grants are delivered to parents rather than schools is of such significance as to compel a contrary result.” Id. at 781. He rejected the state’s argument that the tuition reimbursement could be likened to reimbursing parents for their children’s bus fare to schools, a kind of incidental subsidy to parochial school parents that the Court had upheld in Everson v. Board of Education, 330 U.S. 1, 16 (1946). Justice Powell noted that the bus fare program allowed in Everson was “analogous to the provision of police and fire protection, sewage disposal, highways, and sidewalks for parochial schools.” Id. at 781. There is nothing religious in character about these services.

But the tuition grants in Nyquist were not part of a general program of principally secular character and effect. On the contrary, public money would — through the reimbursement of parents (assuming the program is developed in this way) — go directly to subsidize religious activity, including the teaching of religious orthodoxy and doctrine. The Court found in this reimbursement scheme “no endeavor ‘to guarantee the separation between secular and religious educational functions and to ensure the State financial aid supports only the former.’ Indeed, it is precisely the function of New York’s law to provide assistance to private schools, the great majority of which are sectarian. . .the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.” Id. at 783.

Warning against all of “the ingenious plans for channeling state aid to sectarian schools that periodically reach this Court,” Justice Powell thus rejected the argument that the establishment clause was not offended simply because parents themselves made the decision to send, or not send, their children to parochial school. He wrote:

The parent is not a mere conduit, we are told, but is absolutely free to spend the money he receives in any manner he wishes. There is no element of coercion attached to the disbursement, and no assurance that the money will eventually end up in the hands of religious schools. The absence of any element of coercion, however, is irrelevant to questions arising under the establishment clause. . .[I]f the grants are offered as incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the establishment clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. (emphasis added). Id. at 786.

Justice Powell rebuffed the argument that the reimbursement scheme was constitutional because it was the only way to allow poor parents the opportunity to send their children to parochial school. “In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one ‘advancing’ religion. However great our sympathy for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because of the constraints of ‘conscience and discipline,’ and notwithstanding the ‘high social importance’ of the state’s purposes, neither may justify an eroding of the limitations of the establishment clause now firmly implanted.” 413 U.S. at 788-89 (citations omitted).

The Court’s decision in Nyquist makes clear that the current “ingenious” attempt to funnel aid to parochial schools through parents cannot withstand constitutional scrutiny. These attempts make no effort to separate secular and religious educational functions, guaranteeing that public dollars will be used for religious teachings. These proposals are clothed in concern for low-income parents. However, when all is said and done, the scheme simply offends the essential establishment clause principle stated by Justice Black more than fifty years ago: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” Everson v. Board of Educ., 330 U.S. 1, 16 (1946). As with the tuition reimbursement grants invalidated in Nyquist, “it simply cannot be denied” that the Act would have “a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools.” 413 U.S. at 774.

As the Nyquist Court put it, “we know from long experience with both Federal and state governments that aid programs of any kind tend to become entrenched, to escalate in cost, and to generate their own aggressive constituencies.” Id. at 797. The Court was particularly concerned about legislative schemes like these because “competition among religious sects for political and religious supremacy has occasioned considerable civil strife, ‘generated in large part’ by competing efforts to gain or maintain the support of government.” Id. at 796. (citations omitted)

Despite the weight of precedent, backers of the current drive to create public vouchers for religious schools try to find authority for their plan in the three Supreme Court decisions that have followed Nyquist: Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Dept. Of Services for the Blind, 474 U.S. 481 (1986), and Rosenberger v. Rector and Visitors of the University of Virginia, 115 S.Ct. 2510 (1995). However, only the most extravagant readings of these cases could give supporters of the current drive any comfort.

In Mueller v. Allen, 463 U.S. 388 (1983), the Court upheld a Minnesota statute that allowed taxpayers to deduct from their state income taxes the cost of providing tuition, textbooks and transportation for their school-age children. However, the Court was influenced by at least two critical aspects of the Minnesota scheme that are not present with many proposals: the fact that it was contained in a tax statute and the fact that it applied universally to all parents.

First, Justice Rehnquist remarked that “an essential feature of Minnesota’s arrangement is the fact that the [deduction] is only one among many deductions–such as those for medical expenses, and charitable contributions–available under Minnesota’s tax laws. Our decisions consistently have recognized that traditionally legislatures have especially broad latitude in creating classifications and distinctions in tax statutes. . .” Id. at 396 (internal quotations omitted). These proposals, of course, are not a tax statute but rather a straightforward attempt to direct public money to sectarian schools through the conduit of parents.

Second, the Court focused on the fact that the Minnesota plan applied universally. “Most importantly,” Justice Rehnquist observed, “the deduction is available for educational expenses incurred by all parents. . .” Id. at 398 (emphasis added). But these voucher proposals would create and single out a narrow class of parents and then give them the right to a special subsidy which could be used in religious schools, among others. Far from being a plan of universal character, these proposals are very selective.

In Witters v. Washington Dept. Of Services for the Blind, 474 U.S. 481 (1986), the Court upheld the payment of vocational educational assistance funds to a blind student attending a Bible college. The Court emphasized that it is “well settled…that the state may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is that of a direct subsidy to the religious school . . .” Id. at 487 (internal quotations omitted). “Any aid may have that effect,” the Court stated, “even though it takes the form of aid to students.” Nonetheless, the Witters Court regarded the practice in question as the provision of vocational assistance to a disabled student not as a program in which “any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education.” Id. at 488.

Finally, Rosenberger v. Rector and Visitors of the University of Virginia, 115 S.Ct. 2510 (1995), does nothing to compromise the controlling nature of the Nyquist decision. In Rosenberger, the Court held that the University of Virginia could not, consistent with the First Amendment freedom of speech, reimburse printers for the cost of producing all student publications except for student publications based on a religious perspective. The Court’s reasoning forecloses any effort to justify public vouchers for private religious schools.

First of all, the Court found it important that the religiously-inspired student publications were not themselves churches or what the University classified as “‘religious organizations,’ which are those ‘whose purpose is to practice a devotion to an acknowledged ultimate reality or deity.'” Id. at 2522. Rather, the plaintiff religiously-inspired student publication, called “Wide Awake,” was only asking for support “as a student journal, which it was.” Id. Second, the Court emphasized that the funds used were drawn from an activity fee imposed on students, rather than a general tax, and that the money was paid to the printer. “The neutrality of the program distinguishes the student fees from a tax levied for the direct support of a church or group of churches. A tax of that sort would, of course, run contrary to establishment clause concerns dating from the earliest days of the Republic. . . .The exaction here, by contrast, is a student activity fee designed to reflect the reality that student life in its many dimensions includes the necessity of wide-ranging speech and inquiry. . .” Id. The Court continued:

Our decision, then, cannot be read as addressing an expenditure from a general tax fund. Here, the disbursements from the [student activity] fund go to the private contractors for the cost of printing….This is a far cry from a general public assessment designed and effected to provide financial support for a church. Id. at 2522.

Justice O’Connor, who provided the crucial fifth vote in the 5-4 decision, also took pains to note in light of these distinctions, that the Court’s decision did not “signal [ ] the demise of the funding prohibition in establishment clause jurisprudence.” Id. at 2528 (O’Connor, J., concurring). Thus, these voucher schemes would violate the establishment clause by having a “primary effect” of advancing religious instruction in parochial schools and by entangling the government in the administration of church-run education.

Additionally, the Supreme Court recently declined to consider a challenge to the constitutionality of Wisconsin’s school voucher program see Jackson v. Benson, No. 98-376. This denial does not mean that the voucher issue has been resolved. Often, in cases that involve issues of high legal and political controversy, the Supreme Court prefers to wait until several lower courts have taken a position on the Constitutional question. As many of these other cases work their way up, the issue will inevitably return to the Court. Ultimately, when the Supreme Court addresses the issue on the merits, it will adhere to strong precedent and its traditional view that the establishment clause forbids public funding of religious education.

II. Impact on Public Education

Implementation of non-public school voucher programs would do little to improve America’s public schools. Its real impact would be on the long-term fiscal and political support for public schools, and it would be devastating. Moreover, these voucher proposals could lead to the redirection of potentially hundreds of millions of dollars into the coffers of private religious institutions, which could use the new tuition dollars for any purpose they see fit, including “religious worship or instruction.” All of the voucher schemes are blatantly unconstitutional policy proposals, put forth under the guise of improving the schools that are struggling the most. Congress has every reason to reject these proposals.

Every public dollar funneled to private and sectarian schools is a dollar, by definition, lost by the public school system. It is untenable, during a period of intense educational need and dwindling resources, to be reducing the money available for public schools and transferring public resources to private and parochial schools. This dynamic will only reinforce and exacerbate the “savage inequalities” in American education described by critic Jonathan Kozol and documented by every serious study of the issue.

III. Non Compliance With Anti-Discrimination Laws

Few, if any, voucher proposals have had adequate civil rights protections. Most would change existing law to permit federal dollars to finance education programs without requiring any corresponding obligation to comply with federal anti-discrimination laws (Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act). Without the protection of the federal civil rights laws, private schools could receive federal funding under the newly created school choice program, yet discriminate against students in admissions, access to course offerings, guidance counseling, extra-curricular activities, facilities, and in other aspects of education, in ways long recognized to violate federal law.

For example, in several proposals in the 105th Congress, private schools could ignore harassment of students in class, provide female students with inferior athletic facilities, and refuse to make any accommodations for disabled students. In short, federal funding to schools under this program would come with a free ticket to ignore the civil rights laws that have protected students in federally-funded education programs from harmful discrimination for decades.

Civil rights laws must not be sacrificed in the name of educational “choice.” Parents should not have to sacrifice their children’s civil rights in order to secure a quality education. It is not an acceptable “choice” to provide parents with federal dollars to spend on their child’s education, while taking away the longstanding protections of federal civil rights laws. These laws are far too important to this Nation’s history, and tour continuing obligation to ensure that no student is kept from reaching his or her potential because of unlawful discrimination, to exempt any federally-funded education program from coverage under the civil rights laws.

IV. The Fallacy of ” Parental Choice”

The argument for vouchers turns on the idea of “choice,” but this is profoundly misleading rhetoric. Public school students given the “choice” of attending a private or religious school will only be able to go to one if they are admitted first. Thus, the effective “choice” remains with private school officials, who will be able to discriminate against applicants on the basis of their religion, sex, disability, politics, academic record, test score, or any other factor that is not explicitly racial. These officials will, in effect, be able to pick and choose the students they want and have the federal government pay for it. If voucher advocates have their way, as was proposed in various pieces of legislation last congress (see S1, 105th congress), it will not be long before the public schools are drained of their most motivated and accomplished students and left as high-tech militarized zones, patrolled by police dogs, and populated by besieged teachers, former military personnel and students not lucky or shrewd enough to escape. 2

Moreover, the rhetoric of “choice” disguises the regressive economics of voucher plans. Many private schools cost between $5,000 and $15,000 a year. Often, voucher legislation states that the “amount of assistance” given to students “shall not exceed the per pupil expenditure” in the student’s public school district for the prior fiscal year. With most public schools spending in the $6,000-$7,000 range per pupil, many public school students would not be able to afford private school tuition even if they were admitted and received the maximum possible subsidy (an unlikely prospect anyway).

The only real “choice” would be to apply to one of the religious schools, which tend to have the lowest tuition, thus exacerbating the profound establishment clause problems. At any rate, whether used for religious or secular schools, voucher programs work principally as a partial subsidy to encourage families of greater means to leave the public schools. This effect reinforces economic polarization and erodes public support for public schools.


1. See, e.g., Mueller v. Allen, 463 U.S. 388, 391 (1983) (stating that “about 95%” of 91,000 students attending private school in Minnesota go to religious sectarian schools); Wolman v. Walter, 433 U.S. 229, 234 (1977) (recording finding that, during one school year, more than 96% of Ohio’s private school students were in religious schools, overwhelming majority of which were in Catholic parochial schools).

2. See Joseph E. Bryson & Samuel Houston, Jr., The Supreme Court and Public Funds for Religious Schools: The Burger Years, 1969-1986 129 (1990) (warning of development of “two public funded school systems in America: (1) a public-education system, with unchurched, handicapped, and indigent students enrolled; (2) a religious-schools system, with almost all white students.”)(quoted in Steven K. Green, “The Legal Argument Against Private School Choice,” 62 University of Cincinnati Law Review 40).

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