An analysis of the current status of establishment clause jurisprudence concerning public funding of school vouchers
Whitmire, Dan Westbrook
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One of the most critical issues in education reform is the issue of school vouchers. The concept of school vouchers was originally introduced in the 1950s, but it was in the 1990s when vouchers moved to the forefront of the school choice debate. Several states have experimented with school vouchers, but until 2002, the Supreme Court had never heard a case dealing specifically with a voucher program. The purpose of this study was to (1) examine the legal history of Establishment Clause jurisprudence relevant to the public funding of school vouchers; and (2) determine the current status of Establishment Clause jurisprudence concerning public funding of school vouchers. Key findings of the study include the following: (1) The Religion Clauses of the First Amendment provide guarantees of the rights of individuals, not groups, relative to religious freedom and the proper relationship between government and religion. (2) Little federal case law regarding public funding of religious institutions exists prior to the twentieth century. Federal courts generally deferred to the states in matters concerning the Bill of Rights for over 150 years following the ratification of the Constitution. (3) The Supreme Court’s decision in Zelman v. Simmons-Harris (2002), which upheld an Ohio voucher initiative, provided a constitutional framework for school voucher programs. Key elements of a constitutionally sound voucher program include a secular purpose for the legislation, indirect rather than direct aid to religious institutions, a broad class of beneficiaries of the program, governmental impartiality toward religious and secular options, and genuine choice for parents among religious and nonreligious educational options. (4) After Zelman (2002), the voucher debate shifted to the states. Litigation over state constitutional provisions restricting public funding to religious institutions appears to comprise the legal battleground for school voucher programs in the early twenty-first century.