Are School Vouchers Illegal or Required?
By Martha McCarthy, Ph.D.
New Jersey parents recently filed a class action suit asserting that students attending 96 “failing” public schools, based on poor test scores over time, are entitled to state vouchers that can be redeemed in public or private schools. The parents contend that these children are being denied the thorough and efficient education guaranteed by the New Jersey Constitution and equal protection of the laws under the federal and state constitutions. This suit is unique in asserting that certain children have a right to vouchers that can be used in private schools.
Other voucher cases to date have involved challenges to programs already adopted. The Supreme Court in 2002 resolved the federal Establishment Clause issue when it upheld Cleveland’s voucher program, finding it religiously neutral even though almost all voucher students attend religious schools. Courts also have rejected federal claims that religious schools must be treated like secular private schools in voucher programs.
Since there are no federal constitutional issues, the legality of voucher programs will be determined on the basis of state law, and challenged programs recently have not fared well in state courts. In 2006, the Florida Supreme Court relied on the state constitution’s education clause, similar to provisions in many other states, to invalidate a statewide voucher program designed to allow students attending deficient public schools to enroll in private schools. The court interpreted the legislature’s duty to provide for a uniform system of public schools as requiring all schools that receive state aid to satisfy the same standards. The court ruled that the Florida voucher program unconstitutionally diverted public funds into separate, nonuniform, private systems that compete with and reduce funds for public education.
The Colorado Supreme Court in 2004 also invalidated a pilot voucher program for low-income students attending low-performing schools. The court ruled that the program violated the “local control” clause of the state constitution by taking away districts’ discretion in spending funds for instruction.
Most state constitutions also prohibit the use of public funds for religious purposes, and these “no aid” provisions may pose a barrier to implementing voucher programs. The Supreme Court in 2004 strengthened the vitality of “no aid” clauses when it recognized that states can adopt more stringent antiestablishment measures than included in the First Amendment without exhibiting hostility toward religion.
Despite recent judicial setbacks, several states are considering targeted voucher proposals, and some have been adopted. Ohio recently expanded statewide the Cleveland voucher program for disadvantaged students, Utah adopted a statewide voucher program for children with disabilities, and Wisconsin increased the number of students in the Milwaukee voucher program. These voucher plans may generate additional litigation, but to date, only the New Jersey suit claims that students have a state constitutional entitlement to vouchers. Regardless of the outcome of this case, voucher proposals will continue to be controversial, and their legality will depend primarily on state courts’ interpretations of state constitutional provisions.#
Martha McCarthy is the Chancellors Professor of Law and Education at Indiana University.
