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David Ackerman, US Congressional Research Service
Adapted from a report of the same name
Updated May 20, 2003

Education Vouchers: Constitutional Issues and Concerns


Summary

On May 19, 2003, the Supreme Court agreed to review a lower federal court decision Davey v. Locke which held the free exercise clause of the First Amendment to be violated by a provision in a state constitution barring a state scholarship from being used for a theological major at a religious college. Such "no religious use" provisions exist in a number of state constitutions and have become the focus of a number of suits in the wake of the Supreme Court's 2002 decision in Zelman v. Simmons-Harris. In Zelman the Court, by a 5-4 margin, upheld the constitutionality under the establishment of religion clause of the First Amendment of a school voucher program that gave tuition assistance to poor children in failing public schools in Cleveland to enable them to attend private schools in the city, notwithstanding that most of the schools were religious in nature. In so doing the Court substantially loosened the constraints that previously applied to voucher programs under the establishment clause and shifted the attention of voucher advocates and opponents to state constitutional provisions that have been, or might be, construed to prohibit such programs. In Davey v. Locke the U.S. Court of Appeals for the Ninth Circuit concluded that such a provision violates the free exercise clause, and it is that issue that the Supreme Court has now agreed to examine. The Court will hear and decide the case during the Term that begins in October 2003.

Supreme Court decisions prior to Zelman had evaluated the constitutionality of voucher programs primarily on the basis of whether the recipients of the vouchers had a genuine choice among secular and religious options about where to use them. If the available educational choices were predominantly religious in nature, the Court held the program to violate the establishment clause. If there were a number of secular as well as religious options available, the Court held the programs to meet constitutional requirements. In Zelman the Court substantially loosened this genuine choice criterion by holding that the available universe of choice includes not only the private schools where the vouchers themselves can be redeemed but also the full range of public school options available to parents.

Although Zelman appears to resolve most of the questions concerning the constitutionality of school voucher programs under the establishment clause, legal questions remain with respect to the effect of the more strict church-state provisions of some state constitutions and whether those state limitations are consistent with either the free exercise or equal protection clauses of the U.S. Constitution. State and lower federal courts have reached conflicting decisions on these issues so far. But, as noted, the Supreme Court has now agreed to review a lower court decision on the matter.

This report details the constitutional standards that currently apply to indirect school aid programs and summarizes all of the pertinent Supreme Court decisions, with particular attention to Zelman. It also summarizes the pending case of Davey v. Locke and other recent and ongoing state and lower federal court cases concerning vouchers. The report will be updated as events warrant.

Introduction

Whether government ought to provide assistance in the form of education vouchers or tax assistance to help some or all parents send their children to private schools, including sectarian institutions, has been a recurring and politically charged issue at both the federal and state levels for at least the past two decades. Congress has repeatedly been embroiled in the issue,1 and the 107th Congress enacted into law a bill that extended the existing college education IRA (now called the Coverdell Education Savings Account) to the elementary and secondary school level.2 President Bush has proposed additional school voucher and tax benefit initiatives in his budget for fiscal 2004.3 Several states have also instituted voucher programs either for specific localities or on a state-wide basis.4

A key issue in the debates on educational vouchers5 has been whether the inclusion of sectarian schools in the universe of schools which students might attend violates the part of the First Amendment to the Constitution providing that "Congress shall make no law respecting an establishment of religion ...."6 In a number of decisions between 1973 and 1993 addressing the constitutionality of programs indirectly aiding religious schools Committee for Public Education v. Nyquist, Sloan v. Lemon, Mueller v. Allen, Witters v. Washington Department of Social Services for the Blind, and Zobrest v. Catalina Foothills Public Schools -- the Supreme Court had seemed to suggest that a voucher program would pass constitutional muster only if its benefits were made available on a religion-neutral basis and if the initial beneficiaries had a genuine choice between secular and religious schools about where to use the assistance. However, these criteria were not wholly transparent, and as a consequence, state and lower federal courts that subsequently wrestled with the issue often reached contradictory results. In the past decade, for instance, conflicting judicial decisions were handed down on the constitutionality of particular voucher and voucher-related programs under the establishment clause in the states of Wisconsin, Arizona, Maine, and Ohio.

The U.S. Supreme Court repeatedly bypassed opportunities to review these state and lower court decisions. But on June 27, 2002, the Court in Zelman v. Simmons- Harris7 resolved most issues related to how the foregoing criteria ought to be applied. In that case the Court upheld as constitutional, 5-4, a voucher program providing assistance to poor children in Cleveland's public schools to enable them to attend private schools in the city. The Court did so notwithstanding the facts that most of the private schools in the city (more than 80%) were religious in nature and most of the voucher children (96%) attended those schools. In so doing the Court substantially loosened the strictures the establishment clause had previously been construed to place on public aid to religious institutions.

As a consequence, attention has now shifted to the provisions of a number of state constitutions which have been construed to prohibit voucher programs. Sometimes called "little Blaine amendments" (see infra n. 54), these state constitutional provisions are worded in various ways and are seemingly more strict than the establishment of religion clause. Indeed, voucher programs in Florida, Vermont, and Washington have been held to violate such provisions. But voucher advocates contend that these provisions violate the free exercise of religion and equal protection clauses of the U.S. Constitution.

It was thought that this issue might percolate in the state and lower federal courts for a time before the Supreme Court chose to address the issue. But the Court has, instead, now agreed to review such a case in its next Term, which begins in October 2003. In Davey v. Locke8 the U.S. Court of Appeals for the Ninth Circuit held the free exercise clause to be violated by a provision of the Washington Constitution which had been construed to bar a student from using a state scholarship to pursue a degree in theology at a religious school. On May 19, 2003, the Supreme Court granted a petition for certiorari to review the decision. As a consequence, several pending state and lower federal court cases challenging the constitutionality of restrictive provisions of state constitutions or seeking to use such provisions to invalidate state voucher programs likely will be put on hold pending the Supreme Court's decision in Locke.

The following sections summarize the standards articulated by the Supreme Court under the establishment of religion clause for public aid programs that provide assistance directly to sectarian schools and other religious entities and, in greater detail and with special attention to Zelman, for programs that provide assistance to sectarian schools in directly (i.e., by means of voucher and tax benefit programs). The report also summarizes the pending case of Locke v. Davey, other pending cases involving the constitutionality of state restrictions on voucher programs, and decisions on voucher and voucher-related programs that were handed down prior to Zelman. This report will be updated as events warrant.

Direct Aid

A basic tenet of the Supreme Court's interpretation of the establishment clause is that the clause "absolutely prohibit[s] government-financed or government- sponsored indoctrination into the beliefs of a particular religious faith."9 Thus, the Court has held that public assistance which flows directly to religious institutions in the form of grants or cooperative agreements must be limited to aid that is "secular, neutral, and nonideological...."10 That is, under the establishment clause government can provide direct support to secular programs and services sponsored or provided by religious entities but it cannot directly subsidize such organizations' religious activities or proselytizing.11 Direct assistance, the Court has held, cannot be used for religious indoctrination.12

Thus, religious schools and other entities are not automatically disqualified from participating in direct public aid programs. But the no-religious-indoctrination restriction on such aid means that a religious organization's secular functions and activities must be separable from its religious functions and activities. As a consequence of that requirement, the Court until recently had held that "pervasively sectarian" entities, i.e., entities so permeated by a religious purpose and character that their secular functions and religious functions are "inextricably intertwined," were generally ineligible to receive direct government assistance.13 That construction of the establishment clause was a particular obstacle for direct aid to religious elementary and secondary schools, because the Court generally deemed such schools to fall within the pervasively sectarian category.14 For other entities such as religiously affiliated hospitals, social welfare agencies, and colleges, the Court presumed to the contrary and, consequently, allowed a greater degree of direct aid.15

But the Court has recently abandoned that presumption regarding sectarian elementary and secondary schools.16 Pervasive sectarianism, in other words, is no longer a constitutionally preclusive criterion for direct aid to such entities. The basic constitutional standards governing direct public assistance to religious entities, including schools, now appear to be that the aid must be "secular, neutral, and nonideological" in nature, distributed on a religion-neutral basis, not be used for religious indoctrination, and not precipitate excessive entanglement between government and the institution benefitted (although the Court has left open the possibility that other as-yet-unspecified constitutional requirements may exist as well).17

Indirect Aid

Public aid that is received only indirectly by sectarian institutions -- i.e., assistance that is received initially by a party other than the religious entity itself in such forms as tax benefits or vouchers -- has, on the other hand, been given greater leeway by the Court. Such programs still must be religiously neutral in their design and have been held unconstitutional by the Court where their structure has virtually guaranteed that the assistance flows largely to pervasively sectarian elementary and secondary schools. However, where the design of the programs has not dictated where the assistance is channeled but has given a genuine private choice between secular and religious providers to the immediate beneficiary(the taxpayer or voucher recipient), the Court has held the programs to be constitutional even though pervasively sectarian institutions have benefited. Moreover, in the recent decision of Zelman v. Simmons-Harris, supra, the Court legitimated most school voucher programs by holding that, for constitutional purposes, the universe of choices available to voucher recipients is not limited to the entities where the vouchers can be used but includes the full range of educational choices available to them, i.e., a voucher program can be constitutional even if most of the private schools where they can be redeemed are religious in nature.

(1) Precursors to Zelman v. Simmons-Harris. Prior to its decision on June 27, 2002, in Zelman v. Simmons-Harris, supra, the Court had handed down seven decisions relevant to the question of the constitutional parameters governing indirect assistance. In two decisions particular programs of indirect assistance were struck down; in five others particular programs were upheld.

In Committee for Public Education v. Nyquist, supra, and Sloan v. Lemon18 in 1973 the Court found tax benefit and tuition grant programs that were available only to children attending private elementary and secondary schools to have a primary effect of advancing religion and, thus, to violate the establishment clause. In Nyquist a state tuition grant program provided specified amounts of tuition reimbursement to low-income parents of children who incurred tuition costs in sending their children to private elementary or secondary school, while in Sloan tuition reimbursements were provided to all parents who incurred tuition costs in sending their children to such schools. In addition, a related program in Nyquist permitted higher-income parents of children attending such schools to take an amount specified in the statute as a tax deduction for each attendee without regard to the parents' actual expenditures; the specified deduction gradually declined as income increased.

In both cases the Court found that most of the private schools attended were religiously affiliated (85-90%), that those schools were pervasively sectarian in nature, and that the aid was not limited to secular use either by its nature or by statutory restriction. As a consequence, it concluded that "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions."19 "In both instances," it said in Nyquist,"the money involved represents a charge made upon the state for the purposes of religious education."20 Rather than providing a per se immunity from constitutional challenge, the Court said, "the fact that the aid is disbursed to parents rather than to the schools is only one among many factors to be considered."21 In these cases the tuition grant and tax subsidy programs, the Court asserted, were both an encouragement to parents to send their children to nonpublic, mostly religious schools and a reward for doing so. Moreover, it said, to allow the factor that the aid was disbursed to the parents rather than directly to the schools to have controlling significance would "provide a basis for approving through tuition grants the complete subsidization" of all religious schools ... a result wholly at variance with the Establishment Clause."22

In a pregnant footnote in Nyquist, however, the Court stated that "we need not decide whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited."23 Several subsequent cases presented the Court with precisely that kind of public assistance, and in each instance the Court found the program in question to be constitutional. In the process it refined the criteria governing the constitutionality of indirect aid programs.

Mueller v. Allen24 concerned a Minnesota tax deduction given to the parents of all elementary and secondary schoolchildren, both public and private, for a variety of educational expenses, including private school tuition. Witters v. Washington Department of Services for the Blind25 involved a vocational rehabilitation grant by Washington to a blind applicant who wanted to use the grant for study at a Bible college to prepare for a religious vocation; the program provided similar grants to other blind applicants for a wide variety of job training and educational purposes. Zobrest v. Catalina Foothills School District,26 in turn, involved a Tucson school district's subsidy of a sign-language interpreter under the federal "Individuals with Disabilities Education Act"27 for a deaf student attending a sectarian secondary school; similar assistance was available to disabled students in public schools and nonsectarian private schools. The Court held all three forms of assistance not to violate the establishment clause.

The Court differentiated the tax benefit program in Mueller from the one it had held unconstitutional in Nyquist by emphasizing that it was a genuine tax deduction and that

the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools.28

The Court further stressed that any aid received by sectarian schools in Minnesota became "available only as a result of numerous, private choices of individual parents of school-age children."29 Moreover, it rejected the argument that the tax deduction was unconstitutional because it disproportionately benefited religious institutions. Parents of children attending private schools, most of which were religious, could deduct tuition while parents of public school children could not; and thus, it was contended, the tax deduction served primarily to subsidize attendance at such schools. The Court said that it "would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law."30 The decision was 5-4.

In Witters, a unanimous decision, the Court again emphasized that in the vocational rehabilitation program "any aid provided is `made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited'" and that "any aid provided...that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients."31 The program, the Court stated, did not have the purpose of providing support for nonpublic, sectarian institutions; created no financial incentive for students to undertake religious education; and gave recipients "full opportunity to expend vocational rehabilitation aid on wholly secular education."32 "In this case," the Court found, "the fact that the aid goes to individuals means that the decision to support religious education is made by the individual, not by the State."33 Finally, the Court concluded, there was no evidence that "any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education."34

Finally, in Zobrest it underscored that the program at issue was "a general government program that distributes benefits neutrally to any child qualifying as `handicapped' under the IDEA without regard to the `sectarian-nonsectarian or public-nonpublic nature' of the school the child attends." It further reiterated the factor it had found important in both Mueller and Witters -- that "a government-paid interpreter will be present in a sectarian school only as a result of the private decisions of individual parents."35 The IDEA, the Court said, "creates no financial incentive for parents to choose a sectarian school; and as a consequence, it concluded, "an interpreter's presence there cannot be attributed to State decisionmaking."36 As in Mueller, the Court's decision was 5-4.

In addition to these full decisions subsequent to Nyquist and Sloan, the Court also summarily affirmed two lower federal court rulings upholding education grants to college students, including those attending religious colleges, that helped them defray the cost of attendance. Both Smith v. Board of Governors of the University of North Carolina37 and Americans United for the Separation of Church and State v. Blanton38 involved the federal "State Student Incentive Grant" program.39 Under that program the federal government makes matching grants to the states to subsidize scholarship grants to undergraduate students "on the basis of substantial financial need." Both North Carolina and Tennessee allowed the grants to be used at public and private colleges, including religiously affiliated colleges. In addition, North Carolina, but not Tennessee, barred the grants from being used to train for a religious vocation. In both instances the programs were held not to violate the establishment clause by three-judge federal district courts, and the Supreme Court summarily affirmed. The district courts reasoned that the scholarship grant programs did not directly aid the sectarian purposes and activities of the religiously affiliated colleges attended by some of the students but did so only incidentally as the result of the choices of the students and their parents. In summarily affirming these decisions, of course, the Supreme Court adopted only the lower courts' conclusions regarding the constitutionality of the programs and not their reasoning.

Thus, prior to Zelman the critical elements distinguishing indirect assistance programs that were held constitutional from those struck down under the establishment clause appear to have been that the purpose of the programs was not to provide aid to sectarian schools, that the initial recipients of the vouchers or other benefits were not selected on a religious basis, and that they had a genuine choice about whether to apply the vouchers or other assistance to education at religious or secular schools. In other words, if the government designed a voucher program so that the initial beneficiaries were selected on the basis of a religious criterion or a related proxy (such as enrollment in private elementary or secondary schools, most of which were sectarian), or if the universe of choices available to the initial beneficiaries was dominated by sectarian schools, the Court would hold the program unconstitutional on the grounds it had a primary effect of advancing religion. But if the class of initial beneficiaries included public as well as private schoolchildren and their parents and if they had a genuine choice among religious and secular schools about where to use the assistance, the Court would hold the program not to have an unconstitutional primary effect of advancing religion even though religious schools benefited, and sometimes disproportionately.40

Justice Powell seemed to capture the critical factors governing the constitutionality of indirect aid programs prior to Zelman in his concurring opinion in Witters:

Mueller makes the answer clear: state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman test, because any aid to religion results from the private choices of individual beneficiaries. Thus, in Mueller, we sustained a tax deduction for certain educational expenses, even though the great majority of beneficiaries were parents of children attending sectarian schools. We noted the State's traditional broad taxing authority ..., but the decision rested principally on two other factors. First, the deduction was equally available to parents of public school children and parents of children attending private schools. Second, any benefit to religion resulted from the "numerous private choices of individual parents of school-age children."41

(2) Zelman v. Simmons-Harris.42 In Zelman v. Simmons-Harris, as noted above, the Court upheld as constitutional the Ohio Pilot Scholarship Program. That program had been enacted in partial response to a 1995 federal district court decision directing the state to take control of Cleveland's failing public schools. The program had two components. The main component provided scholarships to families with children in grades K-8 in Cleveland's public schools to enable those who chose to do so to send their children to private schools in the city or to public schools in the adjoining suburbs. Preference was given to students from families with incomes below 200%of the poverty line, and the scholarship could pay could pay 90% of the private or out-of-district public school's tuition charge up to a maximum of $2250. For students from families with higher incomes, the scholarship was capped at $1875 and could pay up to 75% of the tuition charge. In the second component of the program, eligible students who chose to remain in public school could receive up to $360 to pay for special tutorial assistance.

In the 1999-2000 school year 3761 students participated in the voucher program, and more than 2000 chose to receive tutorial assistance grants. Because no suburban public schools chose to participate in the voucher program, all of the voucher students attended private schools in the city. Forty-six of the 56 private schools participating in the program that year (82%) were religiously-affiliated; and 96 %of the scholarship students were enrolled in those schools.

The program had previously been held by the Ohio Supreme Court to pass muster under the establishment clause but to have been enacted in violation of a procedural requirement of the Ohio Constitution.43 After it was re-enacted without the procedural flaw, two new suits -- Simmons-Harris v. Zelman and Gatton v. Zelman -- were filed challenging the constitutionality of the program, this time in federal district court rather than state court. Both the federal district court and, on appeal, the U.S. Court of Appeals for the Sixth Circuit held the program to violate the establishment clause.44

The Sixth Circuit said "Nyquist governs our result." Although the program invited public schools outside of Cleveland to participate, the court stated, none had chosen to do so. Moreover, it said that the low level of the scholarship amount $2500 "limited the ability of nonsectarian schools to participate in the program" but encouraged sectarian schools to do so, because the latter often had lower tuition needs. As a consequence, it said, the "choice" afforded the public and private school participants in the program was "illusory," and "the program clearly has the impermissible effect of promoting sectarian schools":

We find that when, as here, the government has established a program which does not permit private citizens to direct government aid freely as is their private choice, but which restricts their choice to a panoply of religious institutions and spaces with only a few alternative possibilities, then the Establishment Clause is violated .... There is no neutral aid when that aid principally flows to religious institutions; nor is there truly "private choice" when the available choices resulting from the program design are predominantly religious.

On June 27, 2002, the Supreme Court reversed the Sixth Circuit and upheld the scholarship program as constitutional, 5-4.45 Chief Justice Rehnquist, writing for the Court, said that there was no dispute that the Pilot Scholarship Program served the "valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system." The key question, he stated, was whether it had the forbidden effect of advancing or inhibiting religion; and the pertinent criteria for that question, he said, had been established in three prior cases involving indirect assistance to sectarian schools -- Mueller v. Allen, Witters v. Washington Department of Services for the Blind, and Zobrest v. Catalina Foothills School District. In each of these cases, he asserted, the Court had asked whether the aid was distributed to the initial recipients on a religion-neutral basis and whether those beneficiaries had a "true private choice" about whether to use the aid at religious or secular schools:

Mueller, Witters, and Zobrest ... make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.46

Applying these criteria to the Cleveland program, the Court held the Pilot Scholarship Program to provide "educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland School District" (with a preference given low-income families).47 It held as well that "the program challenged here is a program of true private choice."48

The latter ruling was the most controversial aspect of the decision and a major reason for the dissent by four Justices. In all of its prior cases concerning indirect assistance, the Court had analyzed the choice issue within the context of the challenged program, i.e., it had asked whether the initial recipients of the aid had a broad and unfettered choice among a number of religious and secular options about where to use the aid. In Zelman the Court broadened its analysis of the options available to include not only where the scholarships themselves could be used i.e., private schools in Cleveland, most of which were religious but all of the educational alternatives available to parents. The Chief Justice stated:

There ... is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all of the options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.49

Consequently, the Chief Justice concluded for the Court:

...[T]he Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.50

In dissent Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, termed the Court's decision a "dramatic departure from basic Establishment Clause principles" that reduced the criteria for evaluating the constitutionality of a voucher program to "verbal formalism" and undermined "every objective supposed to be served" by the establishment clause. In particular, he charged, the Court's analysis of the choice issue "ignores the reason for having a private choice enquiry in the first place." That enquiry properly asks, he said, whether the parent or student that initially receives the public aid is free to channel it in either a secular or religious direction. But the majority eliminated the utility of that enquiry, he claimed, by bringing into the equation public spending on public magnet and community schools "that goes through no private hands and could never reach a religious school under any circumstance":

If "choice" is present whenever there is any educational alternative to the religious school to which vouchers can be endorsed, then there will always be a choice and the voucher can always be constitutional, even in a system in which there is not a single private secular school as an alternative to the religious school.51

Justice Souter further asserted that by allowing "substantial amounts of tax money" to be used to systematically underwrite religious practice and indoctrination, the Court's decision undermined the three major purposes of the establishment clause. He claimed such aid violates respect for freedom of conscience by compelling individuals to subsidize religious instruction contrary to their own beliefs, compromises the integrity and independence of religious institutions by inevitably bringing government regulation in its wake, and threatens social conflict along religious lines as religious sects begin to compete for public subsidies and religious differences become the subject of public debate. "The reality," Justice Souter concluded, "is that in the matter of educational aid the Establishment Clause has largely been read away."52

(3) Current Standards. In sum, then, the Supreme Court now interprets the establishment of religion clause to place only limited restraints on voucher programs that indirectly benefit sectarian schools. Since Nyquist it has consistently asked whether such programs serve a secular purpose and whether they have a primary effect of advancing religion; and under the latter test it has consistently asked whether the aid is distributed to its initial beneficiaries on a religiously neutral basis and whether the initial beneficiaries have a genuine choice among religious and secular options in using the aid. But Zelman makes clear that the Court no longer examines the choice issue in terms of the range of options where the voucher aid itself can be used. Instead, the Court now analyzes whether the initial beneficiaries have a genuine, non-coerced choice among religious and secular options by looking at all of the educational options available. Given that universe of choice, Justice Souter's charge that Zelman legitimates voucher programs even in systems" in which there is not a single private secular school as an alternative to a religious school" may well be true.

Moreover, to the extent that anydoubt still existed, Zelman makes clear that the amount of aid that finds its way to religious schools in a voucher program is of no constitutional relevance. That conclusion seemed first to be adopted by the Court in Mueller and was then affirmed by five Justices in concurring opinions in Witters. The majority in Zelman reiterated the point: "The constitutionality of a neutral educational aid program simply does not turn on whether and why ... most recipients choose to use the aid at a religious school."53

Voucher programs that are adopted for the purpose of providing financial assistance to private religious schools or that confine their benefits exclusively to the parents of children already in private religious schools, as in Nyquist, may still be unconstitutional under the Court's current standards. But Zelman seems to make clear that few other establishment clause inhibitions now apply to such programs.

State Constitutional Limitations on Voucher Programs

(1) Overview. The constitutions of a number states contain church-state provisions that in many instances are more strict that the establishment clause of the First Amendment. Sometimes called "little Blaine amendments,"54 these provisions express a "no aid to religion" principle in a variety of ways, as the following examples illustrate:

"No money shall be paid from public funds for the direct benefit of any religious or other private educational institution." Alaska Constitution, Art. I, 7.

"No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school ...." Arizona Constitution, Art. 9, 10.

"No revenue of the state or any political subdivision thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution." Florida Constitution, Art. I, 3.

"No public monies or property shall be appropriated or paid or any public credit utilized, bythe legislature or anyother political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic,pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school ...." Michigan Constitution, Art. 8, 2.

"No public funds of any kind or character whatever, State, County, or Municipal, shall be used for sectarian purpose." Nevada Constitution, Art. 11, 10.

"All schools maintained or supported in whole or in part by the public funds shall be forever free from sectarian control and influence." Washington Constitution, Art. 9, 4.

Some courts have construed these provisions permissively not to bar voucher programs.55 But in recent years such provisions have been held to prohibit voucher programs in Maine,56 Vermont,57 Washington,58 and Florida.59

Voucher proponents contend that these restrictive interpretations of state constitutional provisions violate the free exercise and equal protection provisions of the U.S. Constitution, and in the wake of Zelman a number of suits have been initiated in an effort to advance that proposition. Voucher opponents, in contrast, are using such a provision to challenge a voucher program recently enacted by Colorado. Most observers expected the issue of the constitutionality of these state provisions to percolate in the state and lower federal courts for a while. But on May 19, 2003, the Supreme Court agreed to review a case that raises this precise issue. In Davey v. Locke60 the U.S. Court of Appeals held the free exercise clause to be violated by a provision in the Washington Constitution that had been construed to bar a student from using a state scholarship to pursue a theology degree at a religious college.

The following sections provide a more thorough description of Davey v. Locke, detail several other pending cases raising the free exercise issue, and summarize several completed cases that previously addressed the same issue:

NOTES

1 - For example, a number of efforts to enact a school voucher program and to extend tax benefits to the elementary and secondary education level were made during the Clinton Administration, but all failed to get through both houses or were vetoed by the President. In the first session of the 104th Congress, the House added a school voucher plan to the appropriations bill for the District of Columbia; but the measure died after a filibuster in the Senate. In the first session of the 105th Congress, the House again added a voucher plan to the D.C. appropriations bill; and it also adopted a tax-preferred education savings account proposal for elementary and secondary education that would have expanded the definition of "qualified education expenses" in the existing higher education IRA to include costs incurred in attending a public, private, or religious school providing elementary or secondary education, as well as certain home schooling expenses. But both measures died after filibusters in the Senate.

During the first session of the 105th Congress, the House also considered, but rejected, a free-standing voucher plan for all low-income students. Both the House and the Senate adopted a voucher plan during the second session of the 105th Congress as part of the FY 1999 appropriations bill for the District of Columbia. But President Clinton vetoed the measure. During the second session both the House and the Senate also approved tax- preferred savings accounts for elementary and secondary education expenses, including private school tuition; but again President Clinton vetoed the measure.

For more detailed information on the consideration of school choice proposals in the 104th-107th Congresses and on the pertinent policy arguments, see CRS Issue Brief IB98035, School Choice: Current Legislation, by David Smole, and CRS Report RL30805, School Choice: Legislative Action by the 104th through 106th Congresses, by Wayne Riddle and Jim Stedman.

2 - P.L. 107-16, 401 (June 7, 2001); 115 Stat. 57; 26 U.S.C.A. 530. Education IRAs may now be established and expended on a tax-free basis for the costs of tuition, fees, books, room and board, uniforms, transportation, computer hardware and software, and Internet access at both public and private elementary and secondary schools as well as for college expenses.

3 - See CRS Issue Brief IB98035, School Choice: Current Legislation, by David Smole

4 - Wisconsin has a voucher plan applicable only to Milwaukee, and Ohio has one for Cleveland. In 1999 Florida adopted a state-wide voucher plan. For additional information on state school choice programs, see CRS Report 95-344, Federal Support of School Choice: Background and Options, by Wayne Riddle and Jim Stedman.

5 - This report uses the term "voucher" broadly to mean not only tuition subsidy and tuition grant programs but also tax benefit proposals.

6 - Although worded as limitations on what Congress can do, both the establishment and free exercise clauses of the First Amendment have been held to apply to the states as well as part of the liberty protected from undue state interference by the due process clause of the Fourteenth Amendment. See Everson v. Board of Education, 330 U.S. 1 (1947) and Cantwell v. Connecticut, 310 U.S. 296 (1941).

7 - 536 U.S. 639 (2002).

8 - 299 F.3d 748 (9th Cir. 2002), cert. granted, 71 U.S.L.W. ___ (May 19, 2003) (No. 02- 1315).

9 - Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).

10 - Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).

11 - In most of the cases involving aid to religious institutions, the Court has used what is known as the Lemon test to determine whether a particular aid program violates the establishment clause: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion...; finally, the statute must not foster "an excessive entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The secular purpose prong of this test has rarely posed an obstacle to public aid programs benefiting private sectarian schools, but the primary effect and entanglement prongs have operated, in Chief Justice Rehnquist's term, as a "Catch-22" for such programs. Under the primary effect test a direct aid program benefiting religious schools which is not limited to secular use has generally been held unconstitutional because the aid can be used for the schools' religious activities and proselytizing. But if a direct program is limited to secular use, it has often still foundered on the excessive entanglement test, because the Court has held the government's monitoring of the secular use restriction to intrude it too much into the affairs of the religious schools. See Lemon v. Kurtzman, supra. The Court has for some time been sharply divided on the utility and applicability of the tripartite test and particularly of the entanglement prong. Nonetheless, the Court still uses the Lemon test; and, although it is no longer the only test the Court uses in establishment clause cases, the Court reaffirmed its applicability in its most recent school aid cases. The Court has, however, made both the primary effect and entanglement tests less stringent. The primary requirements now are that the aid itself be secular in nature, that it be distributed on a religiously neutral basis, that it not subsidize religious indoctrination, and that it not lead to excessive entanglement. See Agostini v. Felton, 521 U.S. 203 (1997) and Mitchell v. Helms, 530 U.S. 793 (2000).

12 - Mitchell v. Helms, 530 U.S. 793 (2000).

13 - Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman, supra; Bowen v. Kendrick, 487 U.S. 589 (1988).

14 - See, e.g., Committee for Public Education v. Nyquist, supra (maintenance and repair grants to sectarian elementary and secondary schools held unconstitutional); Lemon v. Kurtzman, supra (public subsidy of teachers of secular subjects in sectarian elementary and secondary schools held unconstitutional); and Wolman v. Walter, 433 U.S. 229 (public subsidy of field trip transportation for children attending sectarian schools held unconstitutional).

15 - See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899) (public grant to Catholic hospital to provide medical care to the poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971) (grants for the construction of academicbuildingsatinstitutions of higher education, includingones religiously affiliated, upheld); and Bowen v. Kendrick, 487 U.S. 589 (1988) (grants to religiously affiliated agencies to provide pregnancy prevention and care services to adolescents upheld).

16 - Agostini v. Felton, supra, and Mitchell v. Helms, supra.

17 - In both Agostini v. Felton, supra, and Mitchell v. Helms, supra, the Court upheld the aid programs in question as constitutional on the basis not only that the aid was secular in nature, made available on a religion-neutral basis, and barred from use for purposes of religious indoctrination but also that it was subject to other statutory and regulatory restrictions. In Agostini the Court noted that the aid program did not result in any government funds actually reaching religious schools' coffers and that it supplemented rather than supplanted school expenditures. Similarly, in Mitchell the concurring (and decisive) opinion of Justice O'Connor noted that the aid program had not only the foregoing characteristics but also that there was no evidence that aid had actually been diverted to religious use and that there were a number of state and local monitoring activities to guard against that possibility. It also seemed important in Mitchell that the direct aid in question was of an in-kind nature (educational materials and equipment). There was no majority opinion in that case, but the three opinions filed all expressed doubt about the constitutionality of direct money grants to pervasively sectarian institutions. In any event, both Agostini and Mitchell held such additional factors as those cited, along with the nature of the aid, its mode of distribution, and the prohibition on its use for religious indoctrination, to be "sufficient" to render the program constitutional, although it specifically refrained from saying the additional factors were constitutionally "necessary."

18 - 413 U.S. 825 (1973).

19 - Committee for Public Education v. Nyquist, supra, at 783.

20 - Id., at 791, quoting from the lower court decision at 350 F.Supp. 655, 675 (1972).

21 - Id. at 783.

22 - Id. at 782, n. 38.

23 - Id.

24 - 463 U.S. 388 (1983).

25 - 474 U.S. 481 (1986).

26 - 509 U.S. 1 (1993).

27 - 20 U.S.C.A. 1401 et seq.

28 - Mueller v. Allen, supra, at 397.

29 - Id. at 399.

30 - Id. at 401.

31 - Witters v. Washington Department of Services for the Blind, supra, at 487.

32 - Id. at 488.

33 - Id.

34 - Id. Notwithstanding the unanimity of the decision, five of the Justices authored or joined in concurring opinions that disclaimed the constitutional significance of the amount of aid that ended up in the coffers of religious schools. Justice Marshall, who wrote the opinion of the Court in this case, cited the absence of any evidence that "any significant portion of the aid expended ... will end up flowing to religious institutions" as an additional factor supporting the program's constitutionality. But all of the concurring opinions stressed instead that this case was controlled by the Court's decision in Mueller v. Allen, supra, for the reason that "state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second prong of the Lemon v. Kurtzman test, because any aid to religion results from the private choices of individual beneficiaries." Witters, supra, at 491 (Powell, J., concurring). They placed no reliance on the factor of the substantiality of the aid flowing to religious institutions cited by Justice Marshall. Justice Marshall, it might be noted, had been one of the dissenters in Mueller and made virtually no reference to that case in his opinion for the Court in Witters.

35 - Zobrest v. Catalina Foothills School District, supra, at 10.

36 - Id.

37 - 429 F.Supp. 871 (W.D.N.C.), aff'd mem., 434 U.S. 803 (1977).

38 - 433 F.Supp. 97 (M.D. Tenn.), aff'd mem., 434 U.S. 803 (1977).

39 - 20 U.S.C.A. 1070c et seq.

40 - The Court gave little discussion and no apparent reliance to the entanglement aspect of the Lemon test in these cases. It addressed the issue only in Mueller, and there it found the tax benefit program not to precipitate any excessive entanglement between the government and the religious institutions that ultimately benefited from the program. In general the Court has not found excessive entanglement to exist except where a secular use restriction on a direct public aid program has required the government to engage in a "comprehensive, discriminating, and continuing...surveillance" of publicly funded activities on the premises of pervasively sectarian institutions. See, e.g., Lemon v. Kurtzman, supra and Meek v. Pittenger, 421 U.S. 349 (1975). But the Court has held such secular use restrictions and the consequent close monitoring not to be constitutionally necessary in indirect assistance programs. In addition, even in direct aid programs the Court has recently de-emphasized the risk that religious institutions receiving public aid will use the aid for religious purposes and, as a consequence, has de-emphasized the need for intrusive government monitoring of the institutions' use of the aid. See Mitchell v. Helms, supra.

41 - Witters v. Washington Department of Services for the Blind, supra, at 490-91 (Powell, J., concurring).

42 - 536 U.S. 639 (2002). For a more thorough summary of Zelman, see CRS Issue Brief IB10092, Supreme Court: Church-State Cases, 2001-2002 Term.

43 - Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 711 N.E.2d 203 (1999).

44 - Simmons-Harris v. Zelman, 72 F.Supp.2d 834 (N.D. Ohio 1999), aff'd, 234 F.3d 945 (6th Cir. 2000), reversed, 536 U.S. 639 (2002). The case proceeded in a somewhat tortured fashion. The two suits were filed on July 20 and July 29, 1999, and were consolidated by the trial court. On August 24, 1999, the day most private schools opened for the fall term, the trial court granted the plaintiffs' motion for a preliminary injunction, stating in a lengthy opinion that "the Plaintiffs have a substantial chance of succeeding on the merits." Simmons-Harris v. Zelman, 54 F.Supp.2d 725 (N.D. Ohio Aug. 24, 1999) (order granting preliminary injunction). But a public outcry about the hardship the injunction placed on the voucher children who were already enrolled in private schools and on the public schools that suddenly had to accommodate several thousand new students led the trial court on August 27, 1999, to partially stay the injunction and permit students who had been enrolled in the scholarship program in the last school year to continue but new voucher students to continue for only one semester. Simmons-Harris v. Zelman, 54 F.Supp.2d 725 (N.D. Ohio Aug. 27, 1999) (order modifying preliminary injunction). An emergency request by Ohio to the U.S. Supreme Court resulted in a stay of the preliminary injunction in its entirety on November 5, 1999. Zelman v. Simmons-Harris, 528 U.S. 943 (1999). That decision was by the same 5-4 margin as the Court's ultimate decision on the merits.

45 - Joining in the majority were Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. Justices Souter, Stevens, Breyer, and Ginsburg dissented.

46 - Zelman v. Simmons-Harris, supra, at 650.

47 - Id.

48 - Id.

49 - Id. at 651.

50 - Id.

51 - Id. at 665 (Souter, J., dissenting).

52 - Id. at 670.

53 - Id. at 652.

54 - In 1875 Rep. James Blaine (R.-Me.) proposed an amendment to the U.S. Constitution to make the religion clauses of the First Amendment applicable to the states and to bar public funds from being made available to private sectarian schools, as follows:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The proposal occurred at a time of heated debate about the conduct of religious exercises in the public schools and demands for the public funding of private Catholic schools and in a political atmosphere which was often virulently anti-Catholic. A modified version of the Blaine amendment was adopted by the House, but a different version failed to receive the necessary two-thirds majority in the Senate in 1876. Nonetheless, similar no-aid provisions were added to, or were already part of, the constitutions of several states; and Congress also subsequently required a number of territories newly admitted as states to include such provisions in their constitutions as a condition of statehood. It is these "little Blaine amendments" that have now become the focus of litigation.

55 - See, e.g., Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, cert. den., 525 U.S. 480 (1998) (holding Milwaukee's voucher program not to be violated by sections of Art. I, 18, of Wisconsin's Constitution prohibiting any money from being drawn from the state treasury "for the benefit of religious societies, or religious or theological seminaries" and stating that no person "shall ... be compelled to ... support any place of worship, or to maintain any ministry, without consent") and Toney v. Bower, 318 Ill. App.3d 1194, 744 N.E.2d 351 (Ill. App. 4th Dist.), appeal denied, 195 Ill.2d 573, 754 N.E.2d 1293 (2001) (holding a state statute allowing parents an income tax credit of up to $500 for "qualifying education expenses" not to violate provisions in Art. 10, 3, of the Illinois Constitution barring state and local legislatures from making "any appropriation or pay[ing] from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever ....").

56 - Bagley v. Raymond School Department, 1999 Me. 60, 728 A.2d 127, cert. den., 528 U.S. 947 (1999).

57 - Chittenden Town School District v. Vermont Department of Education, 738 A.2d 539 (Vt.), cert den. sub nom. Andrews v. Chittenden Town School District, 528 U.S. 1066 (1999).

58 - Witters v. Washington Department of Services for the Blind, 711 P.2d 1119 (Wash. 1989).

59 - The trial court decision of August 5, 2002, in Holmes v. Bush has not been reported.

60 - 299 F.3d 748 (9th Cir. 2002), cert. granted, 71 U.S.L.W. ___ (May 19, 2003) (No. 02- 1315).

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