Private School Vouchers and Establishment

On Wednesday, the Pennsylvania State Senate approved a measure to extend taxpayer-dollars to offer vouchers to impoverished students in failing public schools that would theoretically give them the “choice” of attending private schools, both religious and secular. The purpose of the measure, according to Governor Tom Corbett, is to “help improve opportunities for thousands of school children throughout Pennsylvania.” Pennsylvania, however, is not the only state that is considering such options. Ohio and Tennessee are also planning to institute similar programs in the future.

Writing for Americans United, Joseph L. Conn, in his article entitled ‘Educational Choice’ and Hooey: School Vouchers Help Religious Schools, Not Families, expresses concern with the idea of “choice” being a realistic aim of this proposal. He states that the choice truly lies with the private schools, since the bill does not force schools to change their admission qualifications. In fact, the Senate shot down an amendment offered by Senator Daylin Leach that would ban private schools from discriminating based on sexual orientation in admissions. Leach states, “Schools can cherry-pick the best or perhaps the most athletic kids and reject the rest.”

Conn also expresses concern over the fact that the money used for these vouchers will come directly from the public schools left behind. Such an injustice, claims Leach, would leave these public schools with even worse financial burdens than those with which they began. The voucher program passed by the Senate, according to Conn, is a clear and imminent threat to the “wall of separation” that does, or should, exist between church and state.

The issue that incorporates these concerns expressed in Conn’s piece is the one which on which I will focus here. Does the offering of these vouchers for students to attend private schools, some of which are religious, constitute an establishment of religion? Joseph Conn, and Americans United, would seem to be clear in answering this question affirmatively, and, in fact, if the definition of establishment were anything that threatens the “wall of separation” between church and state, then I would be inclined to agree, but it does not.

As Justice Rehnquist contended in his dissenting opinion in the 1985 Supreme Court Case of Wallace v. Jaffree, this clause in the constitution has been grossly broadened and misinterpreted. Establishment means exactly that: establishment, and the constitutions holds that the government is not to establish a federal religion. To say anything more than this, without the enactment of a valid law by the legislature is itself unconstitutional.

Therefore, it is my strong belief that helping impoverished students reach their potential by offering them the opportunity to attend a private school, either religious or otherwise, does in no way constitute establishment. This, of course, depends strongly on the basis of choice and the lack of coercion. In this way, Conn may respond to my argument by stating, as he does in his article, that this is where my reasoning is fundamentally flawed, for no choice exists for the students, but only for religious schools. This is simply not the case, for no student is being forced to attend a religious school. Of course the school has the ability to accept whomever they choose, for this is partly what it means to be private. This does not mean that students should not have the ability to apply to these schools. The article assumes that the schools will only accept the best students or the best athletes, and this may indeed be the case. However, it overlooks the fact that students who were previously unable to afford quality education are now in a better position to achieve their goals.

Epperson v. Arkansas was ruled, at least in part, on the basis of neutrality between religion and non-religion. The vouchers in this program allow students to attend private schools in general (both religious and secular). The bill is therefore neutral in this regard, and in no way attempts to establish one religion or to preference religion over non-religion.

Finally, in Cochran v. United States, the Supreme Court reflected the concept of what would come to be known as the “child-benefit theory.” It was ruled that tax dollars could be used to purchase secular textbooks for students attending private school. Because it helped defray the costs of attending such a school, the court ruled that the state law allowing such appropriation of funds was not unconstitutional. The case in question here is substantively similar in that students are being aided by the government to ensure quality education, a benefit both to the students and to the state. Though religious schools may benefit, this in no way constitutes establishment as the Framers intended, and therefore no such law should be ruled unconstitutional.