Vouchers and Religious Schools: The New Constitutional Questions

Berg, Thomas Charles, "Vouchers and Religious Schools: The New Constitutional Questions" . University of Cincinnati Law Review, Vol. 72, Fall 2003

Abstract:

In Zelman v. Simmons-Harris (2002), the Supreme Court upheld the constitutionality of including religious schools in programs of vouchers given to families for elementary and secondary education. Zelman indicates that most carefully designed voucher programs that include religious schools will survive challenge under the First Amendment's Establishment Clause. Part I of the Article explains that conclusion.

But despite its importance, Zelman represents only the first round in the legal battle over whether families should be able to use tuition grants at religiously affiliated schools. The second round is already underway, with lawsuits challenging various state constitutional provisions and laws that may bar the use of a state's tuition benefits at religious schools even if the Establishment Clause permits it. The Supreme Court has just granted cert. in Davey v. Locke to address such a state provision. Part II examines this round of questions, and concludes that there is a strong case that state provisions that specifically bar the use of educational benefits at religious schools violate the First Amendment by discriminating against religion in violation of the Free Exercise Clause, by discriminating against religious expression in violation of the Free Speech Clause, or at least by imposing an unconstitutional condition on the receipt of state educational benefits. If a state makes vouchers available for use at private schools, it must authorize their use at religious schools as well.

Finally, even if a school is not excluded from participation in a choice plan just because it is religious, it might be excluded because of other conditions on participation. A voucher-eligible school might be required to refrain from discriminating based on various characteristics - race, sex, religion, sexual orientation - in hiring employees or in admitting students. It might be required to teach certain subjects, or refrain from certain teaching certain ideas. If those conditions conflict with the practices of a private school, religious or secular, the school might challenge its disqualification, again with First Amendment claims of freedom of speech, association, or religion. Part III analyzes those constitutional objections, and concludes that they present a more mixed case than the exclusion of schools solely because they are religious. Some of these non-religious conditions are subject to strong challenge, but others are more likely to be upheld.

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