Sometimes there are cases that wind their way through the corridors of the judiciary to the steps of the Supreme Court with virtually no merit. One wonders whether the justices merely want to sharpen their judicial swords by slicing up particularly pathetic arguments. One such case, Zelman v. Simmons-Harris, was argued February 20, 2002 before the Supreme Court. The case centers on the constitutionality of the use of vouchers in education. I suppose the judges had to accept the case since the Sixth District Court, in a split 2-1 decision, ruled that the Cleveland voucher program violated the Establishment Clause of the First Amendment. To not accept the case would mean the ruling would stand, confusing First Amendment jurisprudence.
The Cleveland School System is experimenting with a program that grants vouchers or scholarships to economically disadvantaged students for use at alternative schools. For many, the vouchers represent the only real opportunity to escape a failed publicly-run school system. The most commonly chosen schools are Catholic schools.
On its very face, the Sixth District Court’s reasoning is inconsistent with other common state-aid and Federal-aid programs. The Sixth District Court argued unpersuasively that the use of vouchers at private schools somehow implied a state endorsement.
The notion does not even bear up to the giggle test. Governments provide resources under many programs that the recipients are free to use at a number of institutions, including religious ones, with no implied endorsement. As one wit had it, the use of food stamps to purchase cabbage does not imply a government endorsement of cabbage. A close analogy to state vouchers is Federal college aid to students. Students can use Federal aid to attend the University of Notre Dame, Georgetown, or any number of religiously affiliated institutions and these arrangements pass Constitutional muster. Other people use Medicare funds to pay for stays at religiously affiliated hospitals with no violation of the Establishment Clause.
Given these other programs, why is there so much concern about the constitutionality of vouchers going to younger students? Why is aid to primary and secondary students treated differently from similar aid to college students? Part of the problem is a misreading of history. There is a long legislative history, dating back to the 19th century, where states have specifically prohibited funds to primary and secondary sectarian schools. The argument is that an early, and therefore instructive, understanding of the First Amendment is that funds could only go to non-sectarian schools. Hence, such funds, are given additional scrutiny, even if the funds go directly to students.
The Becket Fund for Religious Liberty researched this history and found it to be far more clouded. The term “non-sectarian” in 19th century legislation did not mean “secular,” as one might use the term today. It really meant non-denominational Protestant. Public schools in the 19th century had no problems instructing in Protestant beliefs or using the King James Version of the Bible for moral education. The prohibition of funds to sectarian schools was not an effort to avoid violating the Establishment clause of the First Amendment. Indeed, in the 19th century the “Incorporation” doctrine did not exist and Constitutional First Amendment proscriptions did not apply to the states. Rather, efforts to prohibit funds to non-sectarian schools arose out of a Nativist belief that state funds should not be used to aid Catholic schools in any way.
No one argues that state funds should be used directly for religious instruction, but there is really no Constitutional prohibition preventing students using state-supplied scholarships or vouchers at schools that parents choose. One may argue that vouchers are or are not effective means to improve education, but they are Constitutional without question. In the 19th century, opposition to public funds following students to alternative schools was partially based on ugly anti-Catholic bias. One hopes that the current objections are borne out of honest mistakes and not similar anti-Catholic and perhaps anti-religious sentiment.