Written in collaboration with the students in my UT-Austin course School Law and Policy 11/7/2012
Guiding question for today’s post on the universal implementation of vouchers:
- Do they create challenges to the separation between church and state?
Questions of the separation of church and state often swirl around conversations about school vouchers. What does the Texas Constitution say about public monies to religious organizations, including schools? The Texas Constitution clearly denounces the appropriation of state funds for sectarian purposes in Section 7 of the Texas Bill of Rights:
No money shall be appropriated or drawn from the Treasury for the Benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for such purposes.
The Texas Constitution also directly addresses the use of school funds for sectarian schools in Article 7, Section 5(c):
The available school fund shall be applied annually to the support of the public free schools. Except as provided by this section, the legislature may not enact a law appropriating any part of the permanent school fund or available school fund to any other purpose. The permanent school fund and the available school fund may not be appropriated to or used for the support of any sectarian school.
What is the recent federal case law on school vouchers? In earlier cases involving government support for religious organizations, the Supreme Court established the three part Lemon test in Lemon v. Kurtsman. Thus, a school voucher policy in the state of Texas would be expected to meet the following:
- Does the voucher provide a secular purpose (Mitchell v. Helms)
- The voucher must not inhibit or advance religious purpose (Zelman v Simmons-Harris).
- The voucher policy must not foster excessive government entanglement of religion (Agostini v. Felton)
Thus, due to the Lemon Test, public policy has to meet a test of neutrality in the relationship between church and state. Notably, in Zelman v. Simmons-Harris (2002) the U.S. Supreme Court found that vouchers had a valid secular purpose. They also found that aid to religious schools by independent private choice was acceptable (money funnelled through parents to religious schools). And finally, they found the vouchers acceptable because they were usable at non-sectarian schools and other public schools. In sum, the Court ruled that the Ohio program did not violate the Establishment Clause of the First Amendment and was a neutral educational program.
So, back to Texas. Is the proposed $5,000 voucher a pittance, or a ploy? The amount of the proposed Texas voucher is negligible compared to the actual cost to attending most non-public institutions. As a result of the limited funding, students already attending private institutions would receive the most benefit, while those who are economically disadvantaged might find using a voucher cost-prohibitive.
Should we place students in the way of religious coercion? Since private schools can choose to employ faculty and create curriculum and pedagogy based upon religious practice or beliefs, public school funds will be utilized to support a particular faith or viewpoint. As captive audiences, students may feel coerced to subscribe to the religious viewpoints of the school. So reconciling the Texas constitution with Zelman is a tricky proposition.
In conclusion, as noted in earlier posts in this series (1,2,3,4), vouchers weaken public education overall by tapping limited financial resources and syphon off high-achieving students and parents to the private sector. Not only does this make for bad public policy, but results in further stratifying society. Public schools must take all students, while private and parochial schools can pick and choose who they accept and how long those students stay. This places taxpayers in the position of supporting (and likely eventually regulating— aka accountability) religious organizations, as well as turning a blind-eye to the noncompliance of private and/or parochial schools with federal civil rights laws. Private institutions for example, not only can exclude students for religious, learning, physical disability, behavior, and gender reasons, but can exclude teachers on the same grounds. The ultimate question we are left with then is should American taxpayers be expected to bankroll discrimination?
Stay tuned, tomorrow Cloaking Inequity will conclude the current series on school vouchers with a summation of the research and evidence discussed in the prior posts.