Educational Vouchers are Constitutional

This article is the first of a two-part series arguing that opponents of school choice programs must cast off their concerns and learn to love the voucher. Part 1 focuses on legal issues, while Part 2 will focus on vouchers as public policy.

Last week, school choice proponents won their second Supreme Court victory in less than ten years. The justices threw out a lawsuit challenging a school voucher program in Arizona that allowed tax breaks for people donating to scholarship funds for K-12 private education. Although the majority’s opinion focused on the legal issue of standing—whether or not the plaintiffs even had the right to challenge that law—the ruling complements precedent holding school voucher programs as constitutional, even if voucher recipients attend religious schools. The fact that government money goes indirectly to religious interests is one that has drawn concern and criticism from many who are concerned that the state is in effect “respecting an establishment of religion” by funding what could be centers of religious indoctrination. These concerns, however, have no basis in law.

Vouchers were developed as a solution to failing public schools. Under such programs, parents are issued educational vouchers redeemable for tuition costs at a private school of their choice. In theory, private schools must compete with one another for voucher funds, and public schools must compete with private schools to prevent an exodus of students. Consequently, educational quality rises all around, and parents are more satisfied with their children’s schools whether they are voucher recipients or not.

Apart from petty and predictable outcries from special interest groups, the opposition to school choice programs in the United States focuses on the fact that most private schools in this country are affiliated with a religious sect. Sending children to those schools, it is believed, would give religious organizations an undue influence on the nation’s youth and could even undermine one of the core justifications for universal education: patriotism. The latter concern does not hold water. Millions of Americans attend private schools (including President Obama’s children), and no one questions their patriotism. The concern about the separation of church and state is more serious.

It should be noted that, although the separation of church and state is a principle as American as “Equal justice under law,” the words themselves are not written in the Constitution. The First Amendment forbids Congress from acting to establish a state church (or churches), and the concern with vouchers involves a concern that government funds are subsidizing one or more religious establishments. However, existing school voucher programs have addressed this concern. The government funds are transferred to parents, who can then use the money to pay tuition at qualifying schools (usually, schools whose curricula include the three R’s and which comply with a state anti-discrimination policy). The government provides no incentive to choose a religious school over a secular one. The state is not funding religion; it is funding education.

The question arising with school vouchers is whether the government is promoting religion per se. As long as the decision to attend a religious school belongs to parents and not state officials, the answer is emphatically, “No.” Vouchers in no way threaten the separation of church and state and are in fact a promising tool for educational reform.

Photo CreditWikimedia Commons


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Jason Orr

Jason is a student at Harvard Law School and writes on legal and policy issues. A 2009 graduate of the College of William and Mary, he worked at the Institute for Justice in Arlington, Virginia, before reentering academia. Jason's views have been published in a number of print and online news outlets, including the Washington Post and the Daily Caller.

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