Written by Don Byrd
I know what you are thinking: another school voucher case? Hasn’t that question been decided? Well, sort of.
Several years ago, in a case called Zelman v. Simmons-Harris, the United States Supreme Court ruled that school voucher programs do not violate the constitutional separation of church and state. Many religious liberty advocates, me included, disagreed with that decision but it is the law of the land. The First Amendment does not prohibit basic school voucher schemes.
Zelman did not, however, end the religious liberty fight over school vouchers. That is because many state constitutions offer even stronger protections barring government funding of religion than does the federal constitution. So, battles are being waged at the state level to determine the legality of various school voucher approaches according to the particular laws of each state. And this has been a pretty consequential year for those disputes.
In June, the Colorado Supreme Court ruled a school voucher program unlawful because the Colorado Constitution prohibits “any public fund of moneys whatever” from helping “to support or sustain any school . . . controlled by any church or sectarian denomination…” In July, the North Carolina Supreme Court upheld a school voucher program despite the fact that it will send public funds to private schools that discriminate on the basis of religion.
A new lawsuit has now been filed challenging the sweeping school voucher system recently enacted in Nevada. That program is state-wide and offers a school voucher for parents of all 450,000 public school children. The Nevada Constitution, however, prevents “public funds of any kind or character whatever” to be used for sectarian purposes. In its complaint, the ACLU argues the program violates that religious liberty provision because the religious schools that will receive public funds incorporate religious education and indoctrination into their curricula, and discriminate on the basis of religion.
The Baptist Joint Committee has long opposed school vouchers on religious liberty grounds, and last year filed a brief with the Colorado Supreme Court arguing against the voucher program ultimately found unconstitutional.
