S5, Ep. 08: The trouble with school vouchers

Amanda and Holly explore the problems with government-funded religion.

Dec 7, 2023

School voucher programs across the country seek to divert taxpayer money to religious schools, which raises significant concerns for religious freedom advocates. In part one of this two-part episode, Amanda Tyler and Holly Hollman explore the problematic issue of school vouchers. They talk about the various iterations of vouchers and the many issues they can create, including their coercive nature. Plus, they look at the first time the Supreme Court upheld a voucher program and what that ruling actually says.

Segment 1 (starting at 00:38): What is the problem with the government funding of religion?

Amanda and Holly talked about the Texas chaplain bill in episode 5: An alarming push to put chaplains in public schools

Segment 2 (starting at 12:33): What are school vouchers? 

Segment 3: (starting at 19:37): Exploring Zelman and the chain of causation

Holly and Amanda review the ruling in the 2002 case of Zelman v. Simmons-Harris. You can read the opinion and dissent here.

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.

Transcript: Season 5, Episode 8: The trouble with school vouchers (some parts of this transcript have been edited for clarity)

Segment 1: What is the problem with the government funding of religion? (starting at 00:38)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m General Counsel Holly Hollman. Today we’re discussing our opposition to school voucher programs, and we’ve got so much to talk about, we’re going to have this conversation over two episodes. This week is part one.

While we at BJC affirm the right of parents to choose a religious education for their children, we oppose using public funds to support religion. Religious teachings should be funded by voluntary contributions, not through compulsory taxation.

AMANDA: That’s right, Holly. And this is an important issue for us to discuss, because there is a lively debate happening in my state of Texas and in other states around the country.

HOLLY: Well, we have been talking a lot about Texas recently, haven’t we, Amanda?

AMANDA: Yeah. I’m a little bit of a broken record, and a lot of our conversations are unfortunately not in a very good way are we talking about Texas. But we have discussed recently our opposition to a new law in Texas that allows public schools to replace counselors with chaplains, as well as our opposition to legislation that would require the posting of the Ten Commandments in public school classrooms. So you’re right, Holly. There is no shortage of legislative action happening here in Texas.

HOLLY: You’d probably rather talk about football, wouldn’t you?

AMANDA: Absolutely. Go, Longhorns!

HOLLY: Sorry. Wrong podcast! All right. While those efforts that we’ve been talking about on Respecting Religion have been aimed at injecting more religion, religious material in education, religious practices during the school day and school events, into the public schools, today’s conversation is a little bit different.

School vouchers are a different problem. School voucher programs are aimed at diverting public money — taxpayer money — from public schools that serve all students to private schools and the way they’re operated, including private religious schools.

We certainly affirm the right people have to send their children to private religious schools if that’s the education that they want their children to receive. We just oppose the government having to fund private religious education.

AMANDA: And so, Holly, let’s start by going through our concerns specifically with vouchers. And some might assume, listening to our podcast, that we as religious people, working in a religious organization, would support publicly funded religious education, but we do not. We emphatically do not support the public funding of religion and religious education. And that’s because religion does best when it is not advanced by the government.

HOLLY: So, Amanda, let’s unpack that a little bit and talk about BJC’s opposition to vouchers which, in general, tend to use public funds for private religious education, whereas we believe public funds are for public education.

AMANDA: Right. And I think we start, as we always do, with our mission, which is faith freedom for all, and accomplishing that mission depends on a proper relationship between the institutions of church and state. And we value our constitutional heritage and the legal protections that maintain that healthy separation between the institutions of religion and government.

HOLLY: That’s right. That tradition and our legal structure in our Constitution protects religious freedom for all. It recognizes that we are citizens without regard to religion, and part of that is understanding the different roles of our public/government institutions, those that are tax-supported, and our religious institutions, institutions that are voluntarily supported by religious adherents.

AMANDA: And that leads us to some of our values that are reflected in our work, and one of those values is that BJC strongly supports public schools. We think that public schools are good for religious freedom for all, in part because they expose children to other children from other faith backgrounds, and including backgrounds where children and their families do not claim a religious identity.

For many people, public school is their first encounter with democracy, with this larger pluralistic society that we live in — not that there’s a lot of democracy happening in public school classrooms, but with that, in cooperation with people who are different from us ‑‑ right? ‑‑ that we are encountering that pluralism, that diversity in public school.

We also know because of many decades of working out some of the more contentious areas when it comes to religious freedom that there is no religious discrimination for students or employees in the public schools and that we have worked out a number of different processes and accommodations and just ways of doing school that allow for religious exercise for religious expression in ways that don’t interfere with the school days.

HOLLY: We also at BJC, as we advocate for religious freedom for all, we use the court decisions that have interpreted the religion clauses in the context of disputes in public schools to explain that complex world of constitutional religious freedom, and that is because it’s easy to see that in a public school setting, we come together in all our diversity and the students, as individuals — and to some extent teachers as individuals — have Free Exercise rights, rights to be religious people, to have religious beliefs and at times to exercise their religion.

But in the context of a government setting, a public school, there’s also the application the No Establishment Clause, and No Establishment principles, that the school itself ‑‑ and that means the teachers, the officials who serve the school itself ‑‑ do not advance religion, do not practice religion in the ways of teaching the students or leading.

And so in a way, looking at a public school is a good way to appreciate those two clauses in the First Amendment that provide religious freedom for all.

AMANDA: That reminder about what one can do in the public schools also, on the other hand, shows what the government should not do, and that is handle religious education. We believe that religious education of children is a matter best left to families and their houses of worship and other religious institutions that they’re involved with.

And that’s because government support for and funding of religion corrodes true religious belief. It makes religious denominations and houses of worship beholden to the state, and it places subtle or not-so-subtle, in some instances, coercive pressure on individuals and groups to conform.

And that’s because the government is necessarily coercive. There is a lot of power behind the force of the state, and particularly when we’re talking about public schools, those are pretty powerful institutions in the life of a young person, and that could lead to coercive religion which is not religion at all. It’s not actually faithful.

HOLLY: I mean, we’re just reminded that religion is not like other subjects that you study in school. And this is not to overstate this and say there’s no room for learning about religion. And anyone who knows BJC and knows our work knows that that’s not what we’re saying. You go back to the school prayer decisions where the Court upholds these important principles and at the same time, acknowledges the importance of learning about religion in the ways that it comes up in history and literature and other subjects.

But we know that for many, many people, religion also is a matter of devotion and practice that is not something that the government should be advancing, that is not consistent with just learning about different kinds of subject matters that come up ‑‑ subject matter that comes up in history or literature. It’s not like math. It has a special place in our Constitution and in our practices, because it is special.  And the public schools are not the place to teach what is absolute truth in a religious matter or to lead in such religious exercises.

AMANDA: That’s right. It’s, we think, very difficult to teach objectively about religious truth. Right? You can teach objectively about the differences of religion, but once you get into that more devotional study, that crosses a line that’s not just bad for people who don’t practice that religion but bad for all adherents, because it’s just not the government’s role.

And we also think that government involvement, including funding, can harm religious institutions themselves. You know, many people who want religious education want it for religious purposes. It’s an important part of bringing people up in the faith. But some of those purposes are inconsistent with public purposes of equality and the teaching of secular subjects.

So there’s just a built-in conflict in some cases between the government’s aims and religion’s aims. And that conflict is okay, as long as, again, there’s a healthy separation and that there isn’t direct involvement or funding from the government, because inevitably, that government involvement is going to come with the government’s strings attached, and we’re going to start having conflicts when those requirements of the funding are at odds with the religious purposes.

HOLLY: An easier way sometimes to think about this is to think about churches, synagogues, mosques, where we are used to, as Americans, thinking about religious diversity and the very different ways that people might do religious education and religious practices, and how that there’s an understanding of religious freedom in that setting, and then how different that would be to have the government directly involved in that.

So while we expect the government to set goals and requirements, certain expectations for education in public schools, we do not expect the government to do that in religious institutions or with regard to religion. So anytime that we talk about government getting involved in funding of specifically religious institutions, we can expect the government to have certain expectations and basically accountability standards that would necessarily change a religious institution.

So there are a lot of complexities here, including ones that would be bad for religious institutions, we think, as well as bad for public education.



Segment 2: What are school vouchers? (starting at 12:33)

AMANDA: So with that background on our values and the larger scope of our work, we want to apply that to the topic at hand, which are vouchers for private school education, taking public money and applying them to private schools. And we at BJC believe that vouchers harm public schools, entangle the government with religion, and could harm religious institutions. And all of that has led to our long-term opposition to vouchers, because — in short — vouchers are bad for religious freedom.

HOLLY: That’s right. And we’ve opposed vouchers for a long time, and the conversation about them has changed through the years, through the decades, with different advocates for more funding for private religious education adapting their arguments, changing based upon legal developments.

Even the different kinds of vehicles that we call “vouchers” have changed. So let’s start off, to add a little bit more specificity to this conversation, and be clear about what we’re talking about — vouchers. So really, what are vouchers? Because we use the word quite broadly to apply to different kinds of policies, because what we call “vouchers” can take many forms.

We can, of course, have specific policy definitions and discussions about different kinds, and they might have different levels of problems in the concerns that we’ve just mentioned in our values.

AMANDA: Yeah. So just generally, when we say “vouchers” we’re talking about any kind of public money — taxpayer money — that is being used for elementary or secondary education that is not performed by a public school. So it could be done by a private school. It could be done by homeschooling. But it just takes public money and instead of sending it to the public schools as one would expect, it goes to some other kind of schooling.

And it could be in the form of scholarship, a tuition tax credit, education savings account, a portability plan. There are a number of different vehicles that vouchers travel on, but the goal and the end point is the same: Public money is going to private schools, homeschooling or anything other than public education.

HOLLY: In a way, they are efforts to allow the government to indirectly fund religious education when applied to religious schools, by setting up some scheme to provide what would normally go to public schools instead to go to parents, to then go to private schools — including religious schools — letting parents sort of choose where that money goes.

The main concern we have is that they are diverting limited public resources from public needs, those public settings that apply to all children, regardless of religious background, and that meet certain regulations and requirements that the public decides on.

They can tend to bleed public school funding and harm those that remain in the public schools and instead divert that money to private schools that have different kinds of regulations that might, for example, discriminate on the basis of religion and who gets in or who can work in that school.

So, again, you’re taking the same kind of money — money that is collected from all tax dollars — but then applying it to a different setting where different rules apply.

AMANDA: That’s right. And, of course, public education is compulsory in ‑‑ everywhere. Right? And there are exceptions, but education itself is compulsory. And public schools, for that reason, must take everyone. Private schools don’t. Private schools can be more selective in who they educate and how they educate them, and so any program that takes the money that’s set aside for that compulsory state duty of education and sends it elsewhere makes it more difficult for the public schools to accomplish their mission.

And that is, as you note, our primary concern with school voucher programs, because as we stated at the top, we believe that public schools are good for society and for religious freedom.

And we’re also concerned about the impact that vouchers have on the religious schools themselves. There could be tendencies for the religious schools to alter their curricula or their practices in order to qualify to receive the vouchers. Or it might set up some, again, difficult conflict between the religious institution and the government when their aims are at odds.

We could also see religious institutions starting to compete with each other for a limited number of voucher payments that might be authorized by any given program, and that causes increased divisiveness, which is particularly concerning to us when it comes to religion.

HOLLY: And for those of you who are listening and saying, Well, aren’t you all just saying all these things are bad and they don’t fit with our religious liberty tradition? That is correct.

And also one of the whole reasons for developing voucher programs is to get away from constitutional limits on the government’s involvement in religion.

So in some of this, yes, we are coming from a perspective that upholds religious freedom and sees that in those first 16 words of the First Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” And putting the government behind religion, including in the public schools, would seem to violate No Establishment.

But, of course, the reason that many supporters of funding for religious schools support vouchers is they do so as a way to get around that constitutional barrier of government involvement, government funding of religious exercise. And, in fact, yes, voucher programs have been, often are challenged on legal grounds, including constitutional grounds, but we’ll start this next segment in talking about what the Court has said about the constitutionality of vouchers.



Segment 3: Exploring Zelman and the chain of causation (starting at 19:37)

AMANDA: Well, in some of our recent episodes, Holly, we’ve reviewed past important religious liberty law cases to examine their effect on current law and policy. And today’s conversation calls for a brief treatment of one of those past cases.

HOLLY: Yes. Today we’ll provide an overview of the key case, and in next week’s episode, we’ll unpack that case a bit more and give some of our analysis, as well as mention other cases that affect this issue.

AMANDA: One long-standing principle of constitutional law is that government cannot directly fund religion, and that’s why we don’t see, for instance, direct government support for houses of worship. But we also affirm that some money might start from the government coffers but eventually get so attenuated from the original government source that it can fund religion.

So an example of that is a government employee can use their paycheck for any number of expenses, including if they so choose, they can use their government salary to make a tithe or other contribution to their given house of worship. There’s no problem with something like that.

HOLLY: Yeah. Sometimes it’s talked about as breaking the chain of causation, the chain between the government act and the government money and the individual choice. And we’ll talk about that, how the Court has used that term of “choice” in these conflicts about government programs that end up funding private education, private religious education.

And the idea from the voucher proponents’ perspective is that there should be and there can be a policy way to avoid the limits on government action, particularly the limit on government involvement in religion, government establishment of religion, by allowing individuals instead of the government to direct the funding.

The Supreme Court has upheld, quote/unquote “voucher” kinds of programs, in particular a voucher program we’ll talk about today, but government programs that allow some kind of funding to get to religious schools. And what really matters is how broadly the program is defined and how the recipients are defined.

Again, we recognize that in such programs, religious options should be a choice and can be a choice, a valid choice for people to make in a program that gives a benefit, widely designed, widely construed, for some broad purpose that can be totally directed by the recipient of that policy.

But what we’re looking at is specifically the problems that sometimes come up in these programs and their effects, both on the funding of public schools and on the relationship between religious institutions and the government.

So, first, let’s acknowledge that the Supreme Court has upheld a voucher program in the case of Zelman v. Simmons-Harris. That was in 2002, and it dealt with a program in Cleveland, Ohio, that was a voucher program. And we’ll talk about the design and the ruling in that case. But it was challenged on the basis that it would violate the federal No Establishment Clause, and the Court, instead, upheld the program as not violating the federal Constitution.

It was a pretty big development in the law at the time. Of course, there were a lot of cases that the Court had heard in previous years about funding and when government funding reached private religious schools and what those constitutional boundaries were.

But the Court had never dealt with a program like the one in Zelman that was a true voucher program that really was designed to allow choice between public schools and private schools, including private religious schools in such a broad way.

AMANDA: So we have to remember that before we had the decision in Zelman, there was this open question: Is a voucher program going to be constitutional or not? But there was a lot of interest in designing these programs, and so at the time, people really carefully designed a program to try to pass constitutional muster.

And so this particular program came out of Ohio. It was called the Ohio Pilot Project Scholarship Program. It gave both tutorial and tuition aid for students in Cleveland. It had tutorial aid for students in Cleveland City School District, and it also gave tuition aid for those students who wanted to go to participating public or private schools. And both religious and nonreligious schools could participate.

Now, in order to try to provide some equality here, the number of tutorial assistance grants provided to the students that remained in public school had to equal the amount of tuition aid scholarships. So the tuition aid had to be distributed based on financial need, and it was spent based on wherever the parents chose to enroll their children.

Eighty-two percent of the participating private schools in this program in Cleveland had a religious affiliation, and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families below the federal poverty line, and respondents who were Ohio taxpayers in this case sought to enjoin — or stop — the program on the ground that it violated the No Establishment Clause.

The Federal District Court in the case granted them summary judgment, which means they won just based on the facts, and the 6th Circuit agreed or affirmed that decision, but as we have noted, the Supreme Court reversed that decision and found that the program did not violate the No Establishment Clause.

HOLLY: And this is a really important decision, because it was the first time that the Supreme Court had upheld this kind of voucher program. And if we haven’t said it before, we meant to or we could say it, and that is this idea of vouchers has been around for decades and decades before the Zelman decision and that there had been lots of kind of efforts to try to get government funding, public funding, to support private religious education.

And you can look at that from lots of different angles, but this was the first time that the Court had upheld this kind of program as valid under the Establishment Clause. It was a 5-to-4 decision, written by Chief Justice Rehnquist. His opinion was short. It was only nine pages, but there were six opinions written that kind of showed that there are a lot of different ways to look at this and that it was a closely divided Court.

The primary holding was that this was a school choice program that was designed in a way that was neutral toward religion, in that it provided assistance to a broad class of citizens, more akin to other decisions ‑‑ other programs that the Court had upheld in the past, though that were not funding tuition to private schools, but that this program allowed for a genuine and independent private choice, and that that kind of program is not violative, does not violate the federal Establishment Clause.

And what I remember at the time that was most significant about the case, that was most determinative of the outcome, was that despite our advocacy and others who were concerned about shifting money from public schools to private religious schools is that the Court really saw this as involving a program of true private choice.

I remember just feeling like they just said it over and over, and I think we went back and counted, and there were 11 times in the entire reported opinion — all the different opinions — that mention that. There were six times in Chief Justice Rehnquist’s court opinion that mention this “true private choice” language, so that was very important to it.

It was significant that this school choice program provided tuition aid to attend private schools, but also public schools in adjacent districts or the aid that went to tutors in those public schools and adjacent districts, so that that made it have a broader application that kind of fit it in this narrative of true private choice.

I will note also that I recall that this program — it was designed so that participating private schools could not discriminate on the basis of race, religion, ethnic background, other protected categories, or, quote, “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion,” close quote.

In other words, they could see that complaint coming. They knew that they needed to say that the program was designed with that feature, which, of course, would be a feature of public school education.

AMANDA: Yeah. And I think as ‑‑ you know, we spent some time recounting the very particular facts in this particular voucher scheme that the Court held to be constitutional, because that’s the case that the Court was deciding. Right?

They come out with this more general principle of law that is to be applied in future cases, but the design of this program seemed very important to the Court, in addition to what you just noted, Holly, but also that rather than creating financial incentives that skewed toward the private schools or the private religious schools, this program actually created financial disincentives.

That’s because the private schools received only half the government assistance given to the community schools and just a third that was given to magnet schools, so that adjacent public schools would receive two to three times that which was given to private schools.

HOLLY: Yeah. We know that that design element is part of making an unpopular policy, which vouchers tend to be unpopular — to make it more popular, to sort of answer the criticism that you could see coming, that the program was somehow providing an incentive to take your kids out of the public schools and send them to private schools.

So on the whole, the Court held that their jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.

That is the holding, and that is the background from which anyone who is designing a voucher program gets to begin and should adhere to, to try to avoid constitutional problems. A lot of the policy arguments that continue to be made, of course, were made by the dissent. Particularly the Justice Souter dissent was the primary dissent. That talks a lot about the effect of this voucher program and that effect, meaning that a lot of the money did go to private religious education.

And by looking more closely at the Zelman decision, the majority and the dissent, you can really get in pretty deep in thinking about all of the ramifications of vouchers, both from a constitutional perspective as well as policy perspective, and those policy debates certainly continued after the Court held that this program was constitutional.

AMANDA: And at the time BJC said and continues to say, even though that Zelman ‑‑ the Zelman Court ruled this particular program to be constitutional, it did not indicate that every voucher program is constitutional. And it also doesn’t mean that every voucher program would be required or recommended for a given community.

HOLLY: Yes. That’s right. And there’s a lot more we can talk about, but it’s too much for one episode. So, listeners, please join us next week as we look more closely at Zelman and its impact, as well as the cases that came after it, and how they affect what’s going on in Texas and other states.

Well, that brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information on what we discussed, visit our website at RespectingReligion.org for show notes and a transcript of this program.

AMANDA: This episode of Respecting Religion is produced and edited by Cherilyn Guy with editorial assistance from Scotty Bryan, Guthrie Graves-Fitzsimmons, and Jennifer Hawks.

HOLLY: Learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

AMANDA: We’d love to hear from you. You can send us both an email by writing to [email protected]. We’re also on social media @BJContheHill, and you can follow me on X, which used to be called Twitter, @AmandaTylerBJC.

HOLLY: And if you enjoyed this show, share it with others. Take a moment to leave us a review or a five-star rating to help others find it.

AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.

HOLLY: Join us on Thursdays for new conversations Respecting Religion.