By Scott Weiser
One of the most often heard complaints about school vouchers is that they will be used to unconstitutionally “fund religious education.” Anti-religious and pro-public school objectors to vouchers claim this is a violation of the Establishment Clause of the First Amendment. But this is merely a stalking-horse for their real agenda, which is to preserve the monopoly of public schools receiving the lion’s share of state education funding.
Objectors don’t like vouchers because they threaten the jobs of public school teachers and administrators and they threaten to shut down ineffective public schools that cannot get the job done. The entrenched bureaucracy of our public school system doesn’t like the notion of having to compete with charter, private and religious schools for student dollars. They want to keep their jobs secure by controlling where the state education funds can go regardless of whether they are providing students with the best possible education at the lowest price, which is what free-market competition for voucher funds will produce.
With state money being given directly to the student to use at any accredited school they choose, including a religious school, public schools will be on the hot seat and will have to up their game if they hope to keep students who will be able to pick the school that best suits their educational needs.
When Douglas County instituted a voucher program in 2011 that did not explicitly exclude voucher funds from being used by parents to pay for their kid’s education in a religious school, the program was immediately challenged. The Colorado Supreme Court ruled in 2015 that the program violated the anti-religion Blaine Amendment language of the Colorado Constitution that flatly prohibits any public money going to religious schools.
While the case was on appeal to the United States Supreme Court, the Court ruled in Trinity Lutheran v. Comer that a church could not be denied benefits from a government program that provided recycled rubber playground surfacing to protect children against injury. The Court said that denying a generally available public benefit to a religious entity only because of the entity’s religious status is “odious to our Constitution.” The Court then sent the Douglas County case back to the Colorado Supreme Court for reconsideration consistent with the Trinity Lutheran decision. The Colorado Court has yet to rule.
The question of the constitutionality of public money being directed to religious schools by the recipients is settled law that completely repudiates the complaints of voucher opponents. In 2002 the U.S. Supreme Court in Zellman v. Simmons-Harris wrote “Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.”
The Court’s reasoning is simple. The First Amendment says that government itself is prohibited from advancing religion because to do so threatens an “establishment” of a state religion by favoring or disfavoring one or another religion. But the Court has repeatedly held as constitutional that the choice of where to spend aid once granted lies with the beneficiaries and their private choice of where to spend it. The Court says “We have repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement.” This has been the case for at least 15 years.
The ruling in Trinity Lutheran serves to invalidate Colorado’s Blaine Amendment language, upon which the Colorado Supreme Court relied for its original ruling. Trinity Lutheran, combined with Zellman, stands for the proposition that because Douglas County’s voucher program provides a general public benefit to all eligible students, Colorado cannot discriminate against the private use of voucher funds to pay for education at a religious school.
This repudiation of the Blaine Amendment language by the U.S. Supreme Court is a strong move away from the bigoted anti-religious beliefs and practices of the past that have facilitated educational and religious discrimination for a century and a half.