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David Ackerman, US Congressional Research Service
Education Vouchers: Constitutional Issues and Concerns
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.
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
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.
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
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
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
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.
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.
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.
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 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
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
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
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
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.
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
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.
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
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
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
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.
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
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.
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.
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
Powell seemed to capture the critical factors governing the
constitutionality of indirect aid programs prior to Zelman in his
concurring opinion in Witters:
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
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.
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.
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
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":
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.
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:
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
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
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:
... 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
the Chief Justice concluded for the Court:
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
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":
"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
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
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.
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
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.
Constitutional Limitations on Voucher Programs
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
money shall be paid from public funds for the direct benefit of any
religious or other private educational institution." Alaska
Constitution, Art. I, 7.
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.
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.
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.
public funds of any kind or character whatever, State, County, or
Municipal, shall be used for sectarian purpose." Nevada Constitution,
Art. 11, 10.
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.
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
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.
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
- 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.
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
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.
- 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
- See CRS Issue Brief IB98035, School Choice: Current Legislation, by
- 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.
- This report uses the term "voucher" broadly to mean not only
tuition subsidy and tuition grant programs but also tax benefit proposals.
- 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).
- 536 U.S. 639 (2002).
- 299 F.3d 748 (9th Cir. 2002), cert. granted, 71 U.S.L.W. ___ (May 19,
2003) (No. 02- 1315).
- Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).
- Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).
- 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).
- Mitchell v. Helms, 530 U.S. 793 (2000).
- Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman,
supra; Bowen v. Kendrick, 487 U.S. 589 (1988).
- 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
- 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).
- Agostini v. Felton, supra, and Mitchell v. Helms, supra.
- 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."
- 413 U.S. 825 (1973).
- Committee for Public Education v. Nyquist, supra, at 783.
- Id., at 791, quoting from the lower court decision at 350 F.Supp. 655,
- Id. at 783.
- Id. at 782, n. 38.
- 463 U.S. 388 (1983).
- 474 U.S. 481 (1986).
- 509 U.S. 1 (1993).
- 20 U.S.C.A. 1401 et seq.
- Mueller v. Allen, supra, at 397.
- Id. at 399.
- Id. at 401.
- Witters v. Washington Department of Services for the Blind, supra, at
- Id. at 488.
- 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.
- Zobrest v. Catalina Foothills School District, supra, at 10.
- 429 F.Supp. 871 (W.D.N.C.), aff'd mem., 434 U.S. 803 (1977).
- 433 F.Supp. 97 (M.D. Tenn.), aff'd mem., 434 U.S. 803 (1977).
- 20 U.S.C.A. 1070c et seq.
- 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.
- Witters v. Washington Department of Services for the Blind, supra, at
490-91 (Powell, J., concurring).
- 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.
- Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 711 N.E.2d 203 (1999).
- 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.
- Joining in the majority were Chief Justice Rehnquist and Justices
O'Connor, Scalia, Kennedy, and Thomas. Justices Souter, Stevens, Breyer,
and Ginsburg dissented.
- Zelman v. Simmons-Harris, supra, at 650.
- Id. at 651.
- Id. at 665 (Souter, J., dissenting).
- Id. at 670.
- Id. at 652.
- 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:
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.
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
- 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 ....").
- Bagley v. Raymond School Department, 1999 Me. 60, 728 A.2d 127, cert.
den., 528 U.S. 947 (1999).
- 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).
- Witters v. Washington Department of Services for the Blind, 711 P.2d
1119 (Wash. 1989).
- The trial court decision of August 5, 2002, in Holmes v. Bush has not
- 299 F.3d 748 (9th Cir. 2002), cert. granted, 71 U.S.L.W. ___ (May 19,
2003) (No. 02- 1315).
This document is not necessarily endorsed by the Almanac of Policy Issues. It is being preserved in the Policy Archive for historic reasons.