VOUCHERS, RELIGIOUS SCHOOLS, AND THE ESTABLISHMENT CLAUSE:
Why The Supreme Court Will Probably Strike Down Ohio's Voucher System

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Nov. 22, 2001

The Supreme Court recently granted certiorari in a case involving a school voucher program — that is, a program under which the government provides money for full or partial tuition for schoolchildren who attend private schools.

For voucher supporters, the case — which arises from a Cleveland, Ohio program — may appear to be an opportunity to get the legal test out of the way, so they can get back to the business of pushing for vouchers across the country. In fact, however, the Court's decision to grant review does not bode well for voucher proponents.

The Problems With Ohio's Voucher Scheme

Ohio's scheme raises deep Establishment Clause problems — as the United States Court of Appeals for the Sixth Circuit noted when it invalidated the program in Simmons-Harris v. Zelman. Ohio's scheme also provides a sobering look into the actual workings of some voucher systems.

Two features of the Ohio voucher system should raise constitutional eyebrows. First, the voucher scheme requires participating schools to cap tuition at a maximum of $2500 per student per year. On its face, the cap may seem innocuous — an instance of the government simply trying to save money by paying only modest tuitions and not expensive ones. But a deeper look proves otherwise.

With some private schools' tuitions approaching those of private colleges, one might ask: What private schools can possibly charge such low tuition? As the Sixth Circuit pointed out, there is only one answer: Religious schools, which tend to have low overhead.

Thus, the demographics of children using the Ohio vouchers are no accident: 96% of children receiving the Ohio vouchers attend sectarian schools. Moreover, while public schools can opt into Ohio's program, in fact they never do. No public school is willing to take a student for whom the school can only receive 90% of $2500 when it costs the school $7,000 per year to educate that student.

Why Religious Schools Get Virtually All Ohio Vouchers

These striking statistics are not the result of "parental choice" — the worthy ideal often invoked in the voucher debate, sometimes to cover other motives. Rather, they reflect the reality that voucher schemes providing only several thousand dollars can only land students in religious schools.

Even where the voucher amount is significantly higher, as in the Milwaukee, Wisconsin scheme, poor students cannot supplement the voucher amount and are driven to the less expensive religious schools. In reality, the government has offered only a very limited choice — a religious choice. Moreover, there is little question that it has done so intentionally.

States and local governments enacting such schemes surely ask and know the range of schools that will in fact be available to children as a result of the vouchers. And that inevitable knowledge makes the fact of heavy religious school involvement in the voucher program not a surprising consequence, but rather a patent purpose, of the legislation. If that does not violate the Establishment Clause, not much does.

Ohio's is not the only voucher system operating on such slender tuition payments. The truth is that governments cannot afford to give parents full choice by paying nonsectarian private schools' tuitions, which typically run to $10,000 and more.

Thus, these schemes hardly provide a panoply of choices. Instead, they steer students rather clearly into the sectarian school system. Meanwhile, some inner city parochial school are threatening to close because of expenses, a claim that either means the Catholic Church has figured out that vouchers can relieve them of the cost of their inner city missions, or that they have lost their sense of mission in the inner city.

Government Funds Directly Support Proselytizing and Religious Mission

The second serious constitutional problem with the Ohio scheme arises from the fact that it sends its government funds into the stream of sectarian school budgets without safeguards to ensure the money is not spent on religious mission or proselytizing.

Especially since the voucher is permitted to cover 90% of the student's tuition - which in a religious school, will likely encompass religious instruction - it is especially troubling that the school is not held accountable to use that money for nonsectarian purposes. Without accountability, and with such a high percent of tuition being paid by the government, it is virtually inevitable that the government's money is being used for mission and proselytization.

This is a far cry from the program the Supreme Court approved, 5-4, in Mitchell v. Helms. There, the government loaned computers to parochial schools. Particularly since ten years of use had not yielded any evidence of the diversion of such computers to religious purposes, the Helms majority found no Establishment Clause violation.

Four members of the Court majority declared that so long as government funding has some initial neutral purpose, it does not matter if the funding is later diverted to religious purposes. But the fifth member of the majority, Justice O'Connor, strongly disagreed. In her concurrence, she made clear that she would find troublesome a government aid scheme that was turned toward religious purposes.

Ohio's voucher scheme, then, is very likely to trouble Justice O'Connor — for, as argued above, it is clear the legislature's purpose is, in part, to support religious mission and proselytization. Otherwise, Ohio would have built accountability measures into its voucher scheme, or at least subsidized a smaller percentage of tuition bills.

Those who believe the Court has granted review in the Ohio case simply to vindicate vouchers, therefore, are likely to be wrong. While it is always risky to predict outcomes where the Court is concerned, a more realistic prediction would be that the Court has granted review of a voucher scheme that raises quite serious constitutional questions precisely in order to sketch out clearly the constitutional limits within which such schemes must operate — not to rubberstamp or endorse all such systems.

Setting these limits will be helpful in guiding voucher proponents to draft constitutional legislation — but in the short term, it may also cause some disruption as existing voucher programs must be revamped.


Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her e-mail address is hamilton02@aol.com. Professor Hamilton's other articles on church/state separation and related constitutional issues can be found in the archive of her articles on this site. Copyright 2001 Marci A. Hamilton.

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