Private (Religious) Education Paid for by the Tax Payers of Indiana

In 2011, the Indiana State Legislature, pushed by then-governor Mitch Daniels, enacted House Bill 1003, which established an education voucher system, where the state (through taxpayers) would front the costs for students of lower income families to receive a private school education. The vouchers are given to the qualifying families once they decide where to send their children, not paid directly to the school.

At its inception, the voucher system was supposed to curb subpar education, especially for poor children, by allowing students to enroll in private schools to increase educational quality not just for the students, but for the schools as well, using free-market competition theory (as competition increases, quality must go up and price must go down). A great idea in theory, however, studies show that the desired performance results were not obtained.

In 2011, eligible families had to have a net household income of 150% the Federal Free or Reduced Price Lunch Program rate or less, and have been enrolled in an Indiana public school for at least one year. There was also a cap on the number of students that could receive this benefit, limiting its impact and amount of tax dollars spent. When Mike Pence won the gubernatorial race in 2013, the program saw a massive change. Governor Pence lifted the restriction on the number of students who could receive the voucher, increased the limit for qualifying family income, and removed the stipulation that the student must first try public school. In effect, Governor Pence was allowing for middle income families to send their children to private school on the state’s dime, which amounted to $146 million in 2017.

Another problem arose: taxpayers soon realized that the majority of private schools the children enrolled in were religiously affiliated. A whopping 98% of the schools that qualifying students enrolled in were religiously affiliated. Nowhere in the law is there a prerequisite that says the schools must be secular, nor are there any regulations on how the admissions process for the private schools can function, aside from the obvious anti-discrimination language presented in the 14th amendment. Religious institutions can admit students based on academic and behavioral records along with family lifestyle, all creating room for admissions bias on a religious basis. Per the Government Accountability Office, only four voucher programs in the U.S. require private schools to accept all voucher students, space permitting. Indiana does not have one of those four programs. In addition, the private schools can compel students to participate in any and all religious activities. Pence, a noted Evangelical Christian, has long been a proponent of this law.

As I read articles about this law, the question I kept asking myself was can the government pay for students to attend religiously affiliated schools? Answering that questions requires analyses of several cases.

Lemon v. Kurtzman (1971) was a landmark decision in the realm of Establishment Clause precedent. The case involved two statutes, one in Pennsylvania and the other in Rhode Island. In Pennsylvania, the statute allowed the state to partially reimburse non-public secondary schools for teacher salaries, books, and other materials that were used to teach non-religious topics. In Rhode Island, the statute allowed the state to supplement 15% of non-public religiously affiliated elementary schools’ teacher salaries. The Supreme Court ruled 8-0 and 8-1 respectively that the laws were unconstitutional. In the majority opinion, Chief Justice Burger established a three-pronged approach to determining a violation in the Establishment Clause. Known now as the Lemon Test, the precedent states that to comply with the Establishment clause, a law must 1. have a non-religious purpose, 2. Have a predominantly non-religious consequence, and 3. It must not foster what the Justice called “excessive entanglement.”

Applying this test to the Indiana statute, the only conclusion that I can reach is that the law is unconstitutional. The law certainly has a secular purpose, at least in the eyes of the legislature that passed it. However, I believe that the law does have a religious effect and causes “excessive entanglement.” By paying for children to go to private religious schools, you subject them to not only compulsory religious warship (which private schools can do), but also biased teaching methods (see creationism), or even classes about religious warship (like bible study). Furthermore, the state is paying for children to receive religious education, regardless of whether they send the check directly to the school or the family. It is hard to have a more blatant establishment of religion than having the taxpayers fund student’s tuition at a religious school, regardless of the religion.

However, school voucher programs have been increasing in popularity since the 1990s. With their establishment in other states, other citizens have had similar concerns about where their tax dollars are going. One case, Zelman v. Simmons-Harris (2002), reached the Supreme Court. This program in Cleveland provided for a limited number of qualifying students, most of whom were below the poverty line, to attend a private school paid for by the state. Parents were given funds based on financial need and tuition costs, and had total control over school choice. Of the participating private schools, 82% were religiously affiliated, and 96% of students enrolled in religiously affiliated schools. The Supreme Court held, in a 5-4 vote, that the program does not violate the Establishment Clause. In the Majority opinion, Justice Rehnquist reasoned that it is within the states’ jurisdiction to give kids educational opportunities. Further, he stated that the government was not directly paying the religious schools, the parents were, as it was their prerogative to enroll their children. In addition, the justice noted that this law is neutral and neither favors nor established any religion, and benefits all families that qualify equally.

This case is also similarities with Everson v. Board of Education (1947). The major difference in the two cases is that the funding the state is giving to parents of qualifying children does, in application, have a secular purpose. The court held in that case that it was legal for Ewing Township to reimburse parents for their children’s transportation costs.

Personally, I disagreed with The Everson decision. Justice Jackson’s stated in his dissenting opinion that, “[the state] cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character.” In that same vein, Justice Rutledge remarked in his dissenting opinion, “[state funding] not only helps the children to get to school and the parents to send them. It aids them in a substantial way to get the very thing which they are sent to the particular school to secure, namely, religious training and teaching.”

Those two quotes very accurately describe, in my mind, the nature of why this statute is unconstitutional. The state, in giving parents the money to send children to private schools, did not forbade them from sending children to religiously affiliated institutions. While it might not have been an affirmative effort to give kids religious education, the reality of the laws application gave many students a religious education and made religious teaching public business. Furthermore, regardless of the neutrality of the law as referenced in the Zelman opinion, which I also disagree with, the state government of Indiana actively enables parents to “secure” religious education for their children which, to me, is a clear establishment of religion. I do not subscribe to the idea that, because state sends checks to families and allows parents to choose schools, the state has no culpability in the involvement of religion within education thanks to this program. Indiana, in 2017, spent $146 million on tuition through this program, and 98% of the children whose tuition was paid attended religiously affiliated schools. This law not only violates the “Lemon Test”, but it subjects citizens to paying huge volumes of money in the name of obtaining non-secular education. Henceforth, I believe this law should be unconstitutional.