The Constitutional Principle: Separation of Church and State
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Study Guide on Vouchers

Someone offered the following comment:

As a proponent of school choice, I am confused by the arguments made by the anti-choice crowd.

Researched and edited by Jim Allison


A reply:

Maybe because it isn't really about choice at all. Choice regarding education was settled in 1925 by the U S Supreme Court. See Pierce v Society of Sisters, 268 U.S. 510 (1925)

Vouchers are not about school choice. It is about trying to get the public to support private religious schools of the k-12 variety.

You have choice, you can send your children to any school that will take them. You can home school them if you like. That is called choice.

The government cannot require that you send your kids to your local public school, or any public school. That is called choice.

The real issue is you want public funds to pay for your choice.

Fine, then send your kids to a non-religious private school. That doesn't violate the Establishment clause of the U S Constitution.

Expecting the public to pay for your kids religious education in a religious private school of the k-12 variety does violate the Establishment clause.

Just for fun consider this. What I pay in taxes helps to subsidize public transportation. For whatever reason I have decided not to use public transportation, shouldn't I have a right to demand that the government give me a voucher so that I might purchase the car I happen to want to buy but can't afford myself?

That in a nutshell is what vouchers are about.

An Argument in Favor of Vouchers

Anti-choice people argue that choice takes money out of the public school system thereby weakening an already fragile system. Let's examine some issues regarding this argument:

Vouchers currently give between $1000 and $1,500 of the taxes parents already pay to the school systems, back to the parent in the form of vouchers. The current operating cost per student is roughly $9,000 per student (give or take, some higher, some lower--this is taken from the Business Journal book of Lists). So, if the school system is "getting" $9000 per student and they give a parent $1500 they are still "up" $7,500 AND they don't have the student there to teach, reducing overcrowding, hiring more teachers, etc etc.

So, if the public schools actually have more money to spend per student, wouldn't you think people who fancy themselves advocates of public schools would embrace vouchers and promote them?

A Reply:

Ok, now here are some things giving the other side of that same issue. Here is some food for thought put out a few years ago by Americans United For Separation of Church and State:

Private School Vouchers: MYTH vs. FACT

Promoters of "educational choice" make many assertions about the positive effects of private school vouchers on America's educational system. Are these claims true? What would vouchers really do? Let's examine some of the common myths about vouchers and review the facts.

MYTH: Vouchers are a constitutional way to assist parochial and other private schools.

FACT: Vouchers result in tax dollars flowing to private sectarian schools. Sectarian schools account for 85 percent of the total private school enrollment in the United States. These schools serve as arms of religious ministries and integrate religious values and doctrine throughout their curriculum, indoctrinating students on controversial subjects such as abortion, creationism and the role of women in society.

Church-state provisions in the federal and state constitutions prohibit government from subsidizing sectarian education, either directly or indirectly. As a result, federal and state courts have repeatedly struck down various schemes designed to funnel tax dollars to religious schools. The fact that parents may "choose" the private school is legally irrelevant, because public funds will still be used for religious instruction. Voucher plans have been struck down in Florida, Maine, New Hampshire, Ohio, Pennsylvania, Puerto Rico and Vermont, even when some laws provided funds for public school choice.

MYTH: The people support vouchers and other forms of aid to parochial and other private schools.

FACT: Voters in 19 states and the District of Columbia have rejected various forms of parochial school aid in ballot initiatives. In 1998, Colorado voters defeated a tuition tax credit proposal 60 percent to 40 percent. In other recent actions, Washington voters disapproved a voucher proposal in 1996 by 65 percent to 35 percent, while in 1993, California voters trounced a voucher initiative 70 percent to 30 percent. State legislatures also have consistently voted down voucher proposals. Only three states have implemented voucher plans, all of which have been controversial and have resulted in drawn-out court battles. The driving forces behind vouchers are not parents, but sectarian school lobbies, the Religious Right and free-market ideologues.

[In November 2000, Voters in California, Michigan overwhelmingly rejected school vouchers]

MYTH: Vouchers will pay only for secular subjects at religious schools.

FACT: Because religious schools integrate religion throughout their curriculum, there is no way to prevent vouchers from paying for sectarian education. Voucher monies are unrestricted in their use and will pay for all aspects of a religious education, including costs associated with theological training and for religious items such as Bibles, icons and other religious material. In addition, vouchers will end up paying for discrimination. Because religious schools are permitted to hire co-religionists only and may require that employees' personal conduct conform to the tenets and teachings of that faith, vouchers will result in publicly supported employment discrimination, not only on religious grounds, but also on the basis of gender and sexual orientation.

MYTH: Vouchers will ensure "parental choice" in education.

FACT: When it comes to private schools, the concept of parental choice is meaningless. Private school administrators have the only real choice concerning which children are admitted to the schools and which are not. They may reject virtually anyone applying to attend or to teach in private schools. No voucher plan will change this fact.

MYTH: Vouchers will make public schools better by promoting competition in education.

FACT: There is simply no evidence to support this assertion. Public and private schools don't compete on an even playing field. Public schools must accept all children regardless of academic ability, physical handicap or family background. Private schools may reject any child with problems and enroll only the academically gifted. Also, competition implies there will be winners and losers; that may be fine for breakfast cereals, but it could be disastrous for schools. Public schools will improve only if our government officials and the public decide to make a serious commitment to educational quality. Diverting money from public schools to private schools will not achieve this goal, but will hurt the nation's public education system.

MYTH: The American public school system is failing our children.

FACT: New studies indicate that American students are among the best educated in the world. The U.S. has one of the highest graduation rates and U.S. schools steer more students to college than does any other country, even though many of those countries weed out mediocre students. Academic achievement among U.S. students - with the majority educated in public school - continues to rise. Moreover, according to a Money magazine study, private schools rank no better scholastically than comparable public schools.

Recent studies of the Milwaukee and Cleveland plans have indicated that participation in choice programs does not result in significant educational improvement among students. Polls show that the vast majority of parents support the public schools their children attend and believe those schools are doing a good job. Vouchers will impede the public school system by draining the funding necessary to provide quality education for all children

MYTH: Vouchers can be limited to certain private schools.

FACT: Courts have ruled consistently that the government may not play favorites among religions or classes of people. Attempts to limit vouchers to traditional parochial schools would only raise an equal protection claim of religious discrimination. Therefore, if enacted, voucher subsidies would be available for any private school, even those run by unconventional or extremist groups with theologies or political views that most Americans find distasteful.

MYTH: Vouchers will correct the injustice of "double taxation "for private school parents, who must pay to support a public school system they don't use.

FACT: "Double taxation" does not exist. Private school tuition is not a tax; it is an additional expense some parents have chosen to pay. All members of society are expected to support certain basic public services such as the police and fire departments, libraries and the public schools, whether they use them or not. (Childless couples and single people, for instance, must still pay school taxes.) We all have a vested interest in maintaining a strong public school system to make certain that our children are educated. Under a voucher plan, all taxpayers face double taxation. They have to pay for public schools, then pay increased taxes to make up for funds being channeled to parochial and other private schools.

MYTH: A voucher plan would empower poor families.

FACT: The better private schools charge high tuition. Because all current and proposed voucher plans provide limited funds, the vouchers will pay tuition for the poorest private schools only, many of which perform no better than public schools. Even then, few private schools are located in the nation's inner cities or other economically depressed areas. Fewer still are likely to admit children with disabilities or special needs. In any event, no voucher plan will benefit more than a small number of poor children. Public schools remain the only reliable educational resource for all children.

MYTH: Because private schools are cheaper to operate, vouchers will save taxpayer money.

FACT: Many private schools have lower operating costs only because they are subsidized by local parishes and public school districts. Taxpayers already pay for many services at private schools, which relieves those schools of significant financial obligations: transportation, textbooks, hot lunches, counseling and speech therapy, and those costs associated with educating disabled and special needs children. Under a voucher system, taxpayers will continue to pay for such services over and above the value of the voucher. In addition, public schools continue to bear the same operating expenses (and realize no savings) when select numbers of students transfer to voucher schools. In those instances, the public schools make do on less money.

For additional information please contact Americans United's Legislative
Department via email at
or write us at:
Americans United for Separation of Church and State
518 C St, NE
Washington, D.C. 20002>
(202)466-3234 • (202)466-2587 (fax)

Along with the above, I suggest the following articles. These arguments have been prepared by people who have done the homework on the subject in areas besides just establishment clause violations.

Private School Vouchers: Bad for America by Nancy Kanode

School Vouchers

Vouchers by Steve Kangas

Are school vouchers Constitutional?

What are school vouchers?

The Case Against Vouchers

Will vouchers work?

Addressing Common Misconceptions in Certain Voucher Discussions I by Susan Batte

Addressing Common Misconceptions in Certain Voucher Discussions II by Susan Batte

Important Establishment Clause Cases decided by the U. S. Supreme Court

Cases from 1899 to 1970

Cases from 1971 to 1977

Cases from 1978 to Present

A New Look At Vouchers.

(Used by permission of the author, Wayne Aiken)

Newsgroups: alt.atheism

Subject: A new look at vouchers

From: (Wayne Aiken)

Date: 1 Aug 1995 19:13:36 GMT

This occurred to me the other day, while listening to a talk-show debate on school vouchers.

Some people want a "rebate" on the money they give to the state to educate their children, in order to spend that money in religious schools of their choice. Fine, although what they get might not be what they expect.

The problem is, the money that a person pays into the system for schools, via property taxes, sales tax, etc. is *NOT* for the education of their own children, but for public education as a whole**. Many of the arguments I've heard that support this is that public education is supposed to be good for the community as a whole, hence everybody pays. I have no children in the school system, yet I must pay to educate other people's children. Other people, with children or not, do the same. The illusion inherent in the system is that the money taken from them is taken for "their" children it is not.

If there is to be any "rebate", then the amount given back is *not* the total amount contributed, but the percentage portion represented by their children versus the entire system. If a person pays $5000 into a school system with 1000 children, then the total amount of *their* money paying for *their* children is $5 per child. That is all they should expect back for removing their children from the public school system; the rest is the "common good" payment. Any more than that, received either through tax credits or voucher payments, means that they have unfairly shifted the "common good" burden to other people.

If instead, you look at it from the point of the "total" amount of money for each child following that child, then you have still have the problem that the vast majority of that total is from *other people*, who cannot legally be forced to contribute to sectarian institutions against their will. Despite claims of "choice", it is *still not a free-market system* as long as the people paying are not the people directly benefitting, and I find it perverse that many otherwise capitalistic-free-market-preaching conservatives have no problem with such a special welfare system, as long as its to *their* advantage.

Any voucher system, no matter how you cut it, is still almost entirely *other people's money", and will remain a separation violation, as long as the socialistic elements remain in the system.

[**] Whether people should be forced to contribute money for collectivist social institutions or not is a separate issue altogether. As long as the system exists, for better or worse, everyone has to be treated equally.

Well, so what, what is all this noise about vouchers being unconstitutional, why and how is that so and is it even important?


James Madison battled against and defeated a bill sponsored by Patrick Henry in Virginia

in the mid 1780s. The Bill would have authorized the use of public funds for salaries, etc for teachers of the Christian Religion. (See Madison's James Madison's Memorial and Remonstrance at the URL given below)

In place of that bill, Madison managed to get Thomas Jefferson's Statute for Religious Freedom passed into law in Virginia. The same statute that contains the following:

". . .That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern. . . "

James Madison, while president of the U S vetoed two Acts Passed by Congress because he said they violated the Establishment clause of the U S Constitution

Here is his reason for vetoing the one bill:

". . .Because the bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty."

Public support of religion, be it one specific denomination, or be it religion in general was a definition of an establishment of religion at the time the Constitution and Bill of Rights was framed.


Historical Data Against "Vouchers"

All but three state Constitutions have wording in them that states No Aid to Sectarian Institutions or No Aid to Sectarian Schools. Twenty-one of those state constitutions have wording stating both. Perhaps in those states that wanted to close any potential arguments trying to create a loophole by saying that Sectarian Institutions might not mean Sectarian Schools.

How religious are private religious schools of the k-12 variety?

(1) Approx 85%--or more-- of the private schools of the k-12 variety in this country are private religious schools. Some figures suggest as many as 90%. Most studies show that approx 10% of the student population attend private schools of the k-12 variety.

(2) There would be no potential establishment clause violations involving non religious private schools of the k-12 variety.

Some information from the ACLU brief filed before the Wisconsin Supreme Court in 1997 in the matter of Jackson v Benson

The Participating Schools. There are 122 private schools in the city of Milwaukee that would have been eligible to participate in the Amended Choice Program during the 1995-96 school year. See Agreed Upon Statement of Facts, 24. Of those, 89 are sectarian and 33 are nonsectarian. Id., 25. Approximately 84 percent of the pupils who attended private schools during the 1994-95 school year attended religious schools. Id., 26.

The parties have provided the Court, as part of the Agreed Upon Statement of Facts, the mission statements and other written materials prepared by many of the religious schools that notified the Superintendent of Public Instruction of their intent to participate in the Amended Choice Program during the 1995-96 school year. Id., 27, Exhibit E. Those materials make clear that religion is a pervasive part of each student's educational experience at these schools. The participating schools announce forthrightly that their mission is religious and that religious doctrine will be instilled in their students:

* "Oklahoma Avenue Lutheran School is an integral part of the ministry of Oklahoma Avenue Lutheran Church." Exhibit E to Agreed Upon Statement of Facts, p. 535.

* "The mission of St. Leo and St. Rose Catholic schools is to share in the parish evangelization effort through providing quality Catholic education in grades pre-kindergarten through eight." Id. at 720.

* "The continuing purpose of St. Matthew Ev. Lutheran Church and School is to go and tell the pure Gospel of Jesus Christ for the conversion of unbelievers and the strengthening of believers in faith and Christian living." Id. at 750.

* "St. Paul's Lutheran School exists to: -assist Parents in training children in God's ways, teach God's Word to children, and -make disciples of children." Id. at 790.

* "We believe our school exists to carry out the Savior's command to 'go and make disciples" (Matthew 28:19). Consequently, our school's primary reason for existence is to be a tool for bringing young souls to faith in Jesus...." Id. at 275 (Fairview Lutheran School).

* "A prospective student whose parents are not members of a church will be considered as mission prospects. Christ Lutheran Church/School considers it a responsibility to teach the Word of God to those who have not heard this blessed Word." Id. at 198.

* "The objectives of the [Clara Muhammad School] are: 1. To foster within each student the principle of submissions to the will of Allah (God) as the essential element in achieving human excellence." Id. at 227.

* "Holy Redeemer Christian Academy is an integral part of the ministry of Holy Redeemer Church of God in Christ." Id. at 399.

* "As a Catholic high school, [Divine Savior Holy Angels High School] is dedicated to promoting the beliefs and traditions of the Catholic Church." Id. at 234.

* "The Yeshiva Elementary School of Milwaukee was initiated by members of the Orthodox Jewish Community with the following objectives as their goals:

To teach elementary school children Torah and Mitzvos in accordance with the ideals and aspirations of Torah as espoused by the G'Dolei Yisroel in order to provide the excellence in Orthodox Jewish Education which will prepare our children to attend the finest seminaries, Yeshivas and institutions of Jewish higher learning. " Id. at 966.

* "The function of St. Bernadette Day School is to provide for Christian individuals opportunities for growth in faith, for formation, for development." Id. at 614.

* "First and foremost Garden Homes Lutheran Church conducts and maintains a Christian elementary school to assist Christian parents in the training and nurturing of their children in the Word of God." Id. at 316.

As the schools' literature emphasizes, one of the primary means by which these schools accomplish their religious missions is by integrating the religious and secular aspects of the schools' educational programs.

* "In keeping with the purpose of our school, our curriculum is taught in the setting of God's Word. Religion is not only taught as a subject, but our teachers have been trained to integrate God's Word across the curriculum. ... Our curriculum offerings place Christ as the focal point for all study," Id. at 414, 417 (The Lutheran Chapel of The Cross Church and School) .

* "Each class is taught by a dedicated Christian teacher who believes in Biblical concepts of salvation. Teachers strive to build into the curriculum a philosophy of Christian living that includes moral and spiritual values." Id. at 471 (Milwaukee Junior Academy (Seventh-day Adventist)).

* "Emmaus Lutheran Church and School is a Christian institution, NOT a private school. The Holy Gospel is the center of our curriculum." Id. at 259." "[Everything that confronts the child in the educational program offered by St. Matthew Ev. Lutheran School will be presented in the light of His inspired, inerrant word of truth and power." Id. at 750.

* "The children will be thoroughly trained in the fundamental subject areas needed for a successful life here on this earth. It is our aim that these subjects be taught in accordance to Scripture and that all things related to the children's educational life be permeated with God's Word." Id. at 792 (St. Paul's Lutheran School).

* "Christian teachings are fostered in all classes, but especially in the religion program." Id. at 106 (All Saints Catholic Elementary School).

* At St. Veronica Catholic Elementary School, "Christian-Centered Education" means "Integrating Catholic faith in all academic areas." Id. at 841.

* "The students of St. Alexander's are not only taught the basic truths of their religion; they are also exposed to the Christian attitudes and ideologies which pervade their school environment." Id. at 553.

* "The message of Jesus is taught in religion classes and other curricular areas. ... Because of the nature of a Catholic school, religion is taught daily as part of the curriculum. Catholic values are also incorporated into all other aspects of the curriculum." Id. at 614, 617 ( St.Bernadette School).

* "The Bible forms the core and center upon which all instruction is based. Each day is opened with a devotion followed by instruction in Christian doctrine and Bible study. Our school gives due instruction in all branches of academics, which are required by the State of Wisconsin. All subjects are taught by a Christian teacher in the light of God's Word, emphasizing God's love for all men through Jesus." Id. at 131 (Bethlehem Lutheran School).

* "All subject areas in our school are Christ-centered," Id. at 323 (Gospel Lutheran School).

* "We Believe...that the Christian School, where every subject is taught from the Christian point of view, related to the teachings of Christianity and permeated with the spirit of Christianity, can be more successful in leading children to a vital Christian life than any other agency, except the Christian home." Id. at 534 (Oklahoma Avenue Lutheran School).

* "We teach all the traditional subjects, but we teach them differently--from a Christian perspective." Id. at 526 (Mount Olive Lutheran School).

***Those materials make clear that religion is a pervasive part of each student's educational experience at these schools. ***

***The participating schools announce forthrightly that their mission is religious and that religious doctrine will be instilled in their students:***

Minnesota, like every other State, provides its citizens with free elementary and secondary schooling. Minn Stat 120.06, 120.72 (1982). It seems to be agreed that about 820,000 students attended this school system in the most recent school year. During the same year, approximately 91,000 elementary and secondary students attended some 500 privately supported schools located in Minnesota, and about 95% of these students attended schools considering themselves to be sectarian.

Muller v Allen, 463 U.S. 388 (1983)

I am not going to present information from each and every state. The accepted figure is that approx 80-85% of the private schools (k-12) in this nation are private religious schools (Remember, this is nationwide. There are probably some cities and states that are lower, as there are some that are higher) AND that religion is a pervasive part of each student's educational experience at these schools. But I will suggest the following if you want more information on this:

Church Schools and Public Money: The Politics of Parochiad, Edd Doeer & Albert J. Menendez, Prometheus Books, Buffalo, N Y (1991)

Visions of Reality: What Fundamentalist Schools Teach, Albert J. Menendez, Prometheus Books, Buffalo N Y, (1993)

The Case Against School Vouchers, Edd Doerr, Albert J. Menendez, John M. Swomley, Prometheus Books, Buffalo, N Y, (1996)

"The Impermissibility of Public Funds and Parochial Schools, Editorial", Journal of Church & State, Volume 15, Spring 1973, Number 2, pp 181-191

When Sacred and Secular Mix, Religious Nonprofit Organizations and Public Money, Stephen V Monsma, Rowman & Littlefield Publishers, Inc (1996)

What Courts Have Done Regarding Vouchers Recently (1998-2000)

June 10, 1998 --The Wisconsin Supreme Court ruled in 4-2 decision that Milwaukee's school voucher program may be extended to include religious schools. (Jackson v Benson)

August 17, 1998 -- Fifth Circuit Court Rules: The United States District Court for the Eastern District of Louisiana, 856 F.Supp. 1102, held that special education program, as applied, violated Establishment Clause, but that parish transportation program did not. (Helms v Picard, 151 F3rd. 347 (5th Cir. 1998))

October 14, 1998 -- A Pennsylvania court Wednesday ruled that the Southeast Delco, Pennsylvania School Board doesn't have the authority to adopt a voucher program using public money to fund education at private and religious schools.

November 9, 1998 -- U S Supreme Court refuses to accept the Milwaukee voucher plan.

January 27, 1999 -- The Arizona Supreme Court's Jan. 26 3-2 decision to uphold a controversial tax credit program is a narrowly drawn ruling.

April 23, 1999 -- The Maine Supreme Court ruled Friday, April 23, that publicly funded voucher subsidies for private religious schools are unconstitutional.

May 27, 1999 -- The Ohio Supreme Court's decision strikes down a religious school voucher program

June 1, 1999 --The U.S. First Circuit Court of Appeals has ruled that voucher-style subsidies for private religious schools are unconstitutional.

June 11, 1999-- Vermont Supreme Court Rejects Tax Dollars for Religious Schools

June 15, 1999 -- Supreme Court to Revisit Public Aid to Religious Schools. The case in question is Mitchell v Helms--Previously known as Helms v Picard, 151 F3rd. 347 (5th Cir. 1998)

August 25, 1999 -- Federal Judge blocks Cleveland Voucher Program at Start of School

August 30, 1999 -- U.S. District Judge reversed his earlier decision on Friday, and permitted a Cleveland school voucher program to continue operation pending the outcome of an appeal scheduled for this December.

June 28, 2000 -- In Mitchell v Helms USSC reverses Lower courts ruling in Helms v Picard, 151 F3rd. 347 (5th Cir. 1998)

December 11, 2000 -- Sixth Circuit Court finds Ohio Pilot Scholarship Program school voucher program violates the Establishment Clause because it does not permit private citizens to direct government aid freely, but rather restricts choice to religious institutions and spaces with only a few alternative possibilities.

On the USSC level Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas have led the movement toward greater government accommodation of religion. Less yielding have been Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justices Anthony Kennedy and Sandra Day O'Connor have often been considered "swing votes" in the High Court's First Amendment cases.

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