Constitutionality school voucher program

McGowan v. Maryland, U. The overwhelming majority of private schools are religious, and the overwhelming majority of private school students go to religious schools.

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.

In Nyquist, U. 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. 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.

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, U. 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.

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. 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. 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. 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.

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.

Board of Educ. 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. 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.

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. 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, U. Washington Dept. Of Services for the Blind, U. Rector and Visitors of the University of Virginia, S. However, only the most extravagant readings of these cases could give supporters of the current drive any comfort.

In Mueller v. 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.

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. 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. The Court emphasized that it is "well settled Finally, Rosenberger v. 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.

Rather, the plaintiff religiously-inspired student publication, called "Wide Awake," was only asking for support "as a student journal, which it was. 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. 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.

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. Justice O'Connor, who provided the crucial fifth vote in the 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.

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. 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.

The Ohio Supreme Court declared part of the state's first voucher program for Cleveland students constitutional back in The court said those scholarships didn't violate the First Amendment's freedom of religion clause "because public funds cannot reach a sectarian school unless the parents of a student decide, independently of the government, to send their child to that sectarian school. The U. Supreme Court reached a similar conclusion in But Ohio's highest court also found the General Assembly's method of funding public schools unconstitutional.

Justices in DeRolph v. State of Ohio said the state's heavy reliance on property taxes meant a child's education was being unfairly dictated by his or her ZIP code. The complaint asks for something called a declaratory judgment, which means they want a Franklin County Court judge to stop the EdChoice scholarship programs while the case is being litigated.

If that doesn't happen, both sides agreed it could be years before the Ohio Supreme Court gets the case. The new school funding formula doesn't have guaranteed funding beyond fiscal year — something the lawsuit repeatedly points out.

Complaint filed against Ohio's private school voucher program by Jessie Balmert on Scribd. This article originally appeared on The Columbus Dispatch: public schools are suing Ohio, saying EdChoice voucher programs are unconstitutional. Missing dog found alive 6 days after landslide destroyed Seattle home. Wisconsin Gov. Evers' reelection pitch: democracy is at risk. Load Error. Microsoft and partners may be compensated if you purchase something through recommended links in this article.

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