S5, Ep. 09: The trouble with school vouchers (part two)

Amanda and Holly continue the conversation on school vouchers, reviewing the political fights and policy debates. 

Dec 14, 2023

In part two of our conversation on school vouchers, Amanda Tyler and Holly Hollman look at who really wants the troublesome programs, and why. They discuss how court decisions are chipping away at constitutional boundaries and dive into the policy debates and political fights over school vouchers that are pitting communities against each other. Plus, they share the origins of some of the language used in these conversations and why Texas – surprisingly – hasn’t passed a voucher program. 

Segment 1 (starting at 00:38): Analyzing
Zelman and cases chipping away at constitutional boundaries

Listen to part one of this conversion in episode 8 of season 5.

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

They mention a trilogy of cases that came later – click the case name for more information, including podcast episodes:

Trinity Lutheran v. Comer (2017)
Espinoza v. Montana Dept. of Revenue (2020)
Carson v. Makin (2022)


Segment 2 (starting at 06:04): Policy debates and political fights

Holly and Amanda mentioned the following articles:

Amanda and Holly discussed Texas Gov. Greg Abbott’s push for school vouchers in episode 1 of this season.

Learn more about Pastors for Texas Children and their work countering vouchers by visiting their website.


Segment 3: (starting at 24:00): Additional resources on vouchers

Here are some additional resources from BJC on school vouchers:

You can also access additional resources on religion and public schools at this link on our website.

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

Transcript: Season 5, Episode 9: The trouble with school vouchers (part two) (some parts of this transcript have been edited for clarity)

Segment 1: Analyzing Zelman and cases chipping away at constitutional boundaries (starting at 00:23)

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 is part two of our discussion on school vouchers, a topic we wanted to discuss because we’re seeing new voucher proposals pursued quite vigorously, particularly in Texas, but in other places as well, and because the topic plays into larger legal and policy debates about public schools and the relationship between religion and government.

AMANDA: That’s right, Holly. Last week we covered a lot, and if you have not listened to episode 8 of this season, you’ll want to check it out to get ready for our conversation today. We talked about why BJC is opposed to school vouchers, which tend to use public funds for private and religious education. We believe that public funds are for public education and that vouchers harm public schools, entangling the government with religion.

HOLLY: We affirmed the right of parents to choose a religious education for their children, but we don’t think taxpayers should pay for it. It’s not the role of the government to develop students in matters of faith and religious practice, but it is, however, a primary function of the state to provide education for all its citizens.

AMANDA: We also talked some about how vouchers can take many forms. Basically, a school voucher means that the government sends taxpayer dollars to pay for tuition at a private school, and that school does not have the same rules or oversight as a government-run or public school. Private schools don’t have to take all students, and they are often religious in nature, which means that taxpayer dollars are, in essence, funding religious instruction.

We noted that there are a variety of ways that such programs aimed at funding religious schools can be designed. These can be called “scholarships” or “tuition tax credits” or other names like that, but often these voucher schemes all result in the same situation: The government is indirectly funding religious education with taxpayer money.

HOLLY: The Supreme Court heard a voucher case in 2002, Zelman v. Simmons-Harris, and upheld the program from Cleveland, Ohio. Last week we looked at the holding in that case, which upheld a specific voucher program and gave guidance to lower courts about what it takes for a voucher program to pass constitutional muster.

AMANDA: And so we want to pick up on the conversation this week with a look at the impact of that case, and we’ll get into what’s happening in Texas, too. The Zelman decision 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: That is certainly the case, as well as there were additional legal arguments still to be made in the voucher context, particularly whether voucher programs could fit in other contexts, other than public education, you know, how this ruling might apply more broadly in other government programs, and we saw some litigation about that.

And then, of course, there were other legal barriers to voucher programs, including specific language in state constitutions that made it more difficult to send government money to private religious institutions. Of course, while these conversations about vouchers continued in some states, particularly with regard to specific state constitutions, there have been a series of cases, in various contexts, making their way through the courts that led to a trilogy of decisions by this Supreme Court that has made those state constitutions much less effective as any barrier to government money funding religious institutions — including churches, as well as religious schools.

And here we’re talking about a trilogy of cases: Trinity Lutheran, the so-called “playground case”; then Espinoza, which was in 2020 which dealt with education savings accounts; and then Carson v. Makin, which I like to think of as the accidental voucher program. That’s the 2022 program out of Maine, and you can find out more information about those cases on BJC website, as well as in past Respecting Religion episodes.

All of this to say is that the legal barriers, the constitutional barriers for vouchers, have continued to be narrowed and basically chipped away at.

AMANDA: So as you note, Holly, particularly with this recent trilogy of cases, there are fewer constitutional barriers to voucher programs, but that doesn’t mean that we’ve seen a widespread proliferation of voucher programs because there are still many public policy reasons why legislatures are not quick to adopt them. And we’ll get into those current debates, policy debates, and political fights after the break.



Segment 2: Policy debates and political fights (starting at 6:04)

AMANDA: So it’s been 20 years since Zelman, 21 years. But we have recently seen some increased interest in passing some of these voucher schemes. And so we’re going to link in show notes to a helpful round-up piece from Politico by Andrew Atterbury, and it’s titled, “GOP states are embracing vouchers: Wealthy parents are benefitting.”

And his piece walks through recent efforts in states like Florida, Iowa, Arkansas, and Texas. The first question he helps us answer is, Who wants vouchers and why? Well, first, we have so-called “school choice” advocates who are arguing that competition helps the public schools and that public schools are failing.

And we have more and more people who are coming to this camp after COVID, which sent many people to homeschooling or private schools. We’ve also seen increased culture wars that are playing out at school board meetings about parental choice when it comes to education, and so this, quote/unquote, “school choice community” is growing.

But the unfortunate thing, as pointed out in this article, is that this often pits communities against each other by arguing that the wealthy people already have school choice, because they have the money to send their kids wherever they want to go, and that these programs are just trying to give the same benefit to families that could not afford to send their children to private schools.

And, you know, I think that that is an argument that we have to take seriously and think about, what is the response. Is that accurate? What is the response to that?

You know, and I think that while some of these programs are sometimes pursued in hopes that competition among schools will lead to increased student achievement and decreased education costs, the data that supports those outcomes is scarce. We aren’t seeing that this kind of competition necessarily improves student achievement or decreases education costs.

HOLLY: I think that is a very helpful article to show these different arguments. I also, just from experience — having heard these arguments for so many years — always question to what extent that is the case, that the advocacy — the school voucher advocacy groups are growing versus they are finding new arguments to fan the flames against public schools in order to try to get people more interested in vouchers.

But, yes. Let’s keep talking about that article, which talks about the different ways that they’re successful and unsuccessful. Right?

AMANDA: Yeah. And, I mean, I think it’s a really helpful corrective to make that point, Holly. And the language of “school choice” is not new. It was used after Brown v. Board of Education to subsidize parents who wanted to remove their children from the desegregating schools, and the language was also repeated by libertarians, like Milton Friedman, whose real end goal was privatizing education altogether.

And we’re going to link in show notes to an opinion piece by Nancy MacLean who is history and public policy professor at Duke that ran a couple of years ago in The Washington Post under the title, “‘School choice’ developed as a way to protect segregation and abolish public schools.” I just think that’s an important frame from history to remember that some of these items recirculate in modern times.

And also, this argument — well, we’re really just trying to help kids and families who could not afford on their own to go to private schools — is not being reflected in some of the current policy decisions that are being made. The Politico article points out that many of these new measures are passed without any income restrictions, so that the vouchers are going to wealthy families who were already sending their children to private schools.

They find, for instance, that in some of these states that have passed programs, a lot of them are applying for education savings accounts for their kindergartners. So they’re not removing them from schools. They’re making a choice from the beginning to go to private schools with the money that the government’s giving them.

And in that way, I think, the argument that the dollars are just following the child, as vouchers are supposed to do in some of these programs, doesn’t ring as true. The vouchers are just used to siphon money off from public schools in favor of private schools.

The article also points out that in addition to the school choice community of parents, we also have interest groups involved, including one very powerful interest group called the American Federation for Children. Betsy DeVos, former secretary of education, has been involved in this organization for years, and the organization has a PAC — or political action committee — that puts money into elections to try to elect candidates for office who will support voucher programs.

HOLLY: And I think that “school choice” language can be really insidious. Obviously, as Americans, we value our freedom, and the idea of choice in the market is something that can be very appealing across the board, and so it’s not surprising that advocates for vouchers and getting government funding for private education would use that language. But it’s really a distraction from, I think, what most families really want for their children and that is quality schools.

And so if you have quality public schools that serve everyone without regard to religion and if we could do a better job supporting public schools and making sure that they serve everyone without so much regard to income levels as well, then we wouldn’t have this conversation about choice and needing to have a bunch of different choices. You know, you just need to have a good public school everywhere. You need to have good public schools everywhere that can serve and educate all children.

AMANDA: Absolutely. And that’s a huge public policy concern and challenge right now, and these voucher programs kind of abandon that larger conversation about the public schools in favor of funding private schools and other options.

So we’ve talked about who’s supportive of the voucher programs. Now we want to talk about who’s opposing the voucher programs. Well, some are well-known and ones that you might guess, like public education groups including teacher unions and others who work day in, day out in the public schools and are concerned about efforts that look like they’re abandoning public schools for other places.

HOLLY: And blaming them. And blaming them for all the problems in our political environment.

AMANDA: Absolutely. I mean, just like a very brief aside, but as parents of public school kids, Holly, I think we can both say, you know, just how under-appreciated our public school teachers, administrators and other staff are, and how they often get caught and used in these public policy debates. Absolutely.

But more surprising to many are that many rural communities are opposing vouchers, because public schools are such an important part of their community and their local economy, and there just aren’t that many private schools in many of these areas. There’s not the choice that people talk about in a lot of these other communities.

And, you know, one piece that we’re going to link in show notes is a commentary for Brookings written by Deven Carlson who’s an associate professor of political science at the University of Oklahoma. We’ll link in show notes, but I’ll just do one quick quote from his paper.

He writes, “The urban/rural divide among GOP legislators on this issue almost certainly contributes to the lack of statewide school choice programs in other red states, including Wyoming, Iowa” ‑‑ asterisk, he wrote this before Iowa passed one ‑‑ “Nebraska, Kansas, Alabama, Montana, Utah, the Dakotas, and perhaps most notably Texas. On the surface, the partisan and ideological composition of these states’ legislatures would seem to predispose them to school vouchers and educational choice programs more generally. However, the realities of rural schooling cut across these partisan and ideological considerations and introduce a second major dimension to the politics of school vouchers in red states.”

HOLLY: That’s what I was thinking of, Amanda, just that while having choices in general sounds good, at the end of the day, what people want is to have a good place to send their kids to school, and it’s unrealistic and it really makes no sense to talk about school choice in many, many parts of our country where there’s only going to be one public school serving a community, and there’s a great opportunity for that school to bring people together, to provide quality education, and as that article shows, do so much more in a community, sort of kind of becomes a central place of people knowing each other, working together, being neighbors.

So ‑‑

AMANDA: Should we come back to Texas?

HOLLY: So what is going on in Texas? So given all of ‑‑ given that piece, that study and what we understand is why vouchers are not so popular in many parts of rural America, what is happening in Texas?

AMANDA: Well, in addition to the Texas Longhorns going to the College Football Playoff for the first time ever ‑‑

HOLLY: [Laughing.] I asked for that. Yeah.

AMANDA: Yes. Hook ’em, Horns! In addition to that ‑‑ but, you know, actually, Holly, not that unrelated, because everything in Texas comes down to football. We have seen Governor Greg Abbott have this really concerted push to try to push a voucher program across the line here in Texas.

He wants to join some of those states like Iowa, Arkansas, and Florida, and in the Texas version, it would be in the form of education savings accounts. It’s been an 18-month campaign by the governor, and it still has not come to fruition for him. His latest version would provide $10,500 for private education and up to $1,000 for homeschooling in these education savings accounts.

And we first talked about Governor Abbott’s push back in episode 1 of this season, because incredibly, Holly ‑‑ like I still can’t really believe this ‑‑ Governor Abbott began his campaign this fall with a, quote/unquote, “School Choice Sunday” in which he instructed pastors to preach in favor of his policy. And we talked then and we still believe that this move was an egregious example of state overreach into the matters of religion.

HOLLY: Totally. And I’m sure it was not appreciated in many of these rural school districts where the churches are filled with people who work in the public schools.

AMANDA: Yeah. So here we are, two months later, and despite of — or maybe because of — the governor’s strong-arm tactics, we still don’t have school vouchers in Texas, and the fact that he’s not yet been successful in this effort might be surprising to many people, given that Texas is still a Republican-controlled state, as evidenced by the passage of many conservative and sometimes very conservative policies this past legislative session, some of which we’ve talked about here on Respecting Religion.

But the politics that we just noted, particularly the rural opposition to vouchers, has dealt Governor Abbott a series of defeats, and most recently in a fourth special session called by the governor, the Republican-controlled Texas House of Representatives voted 84 to 63 — so not close — against the voucher proposal, stripping it from a larger public education funding bill.

And this was really stunning for many people. This is the first time that the House had actually voted directly on vouchers in a long time, so we weren’t really sure how it was going to come out. But it failed, even despite the amount of effort and political pressure both the governor and the lieutenant governor, Dan Patrick, who also heads the Texas Senate, has put on these House Republicans, not to mention all of the PACs and other monied interests that are focused on these remaining holdouts, these Republican holdouts, because if Republicans voted in a bloc on this issue, they could pass it tomorrow.

HOLLY: Oh, wow. I can see why you say it’s stunning, Amanda, particularly when you compare it to some of the other things that the Republican majority has pushed through in Texas and the power that they have.

On the other hand, it is not surprising, given all the arguments that we’ve been talking about, the complexity of, the importance of public education, and how this particular policy not only is not proven to help public education, but can have a lot of other harmful results on a community and what brings a community together.

You know, it doesn’t really do what its proponents say it will do. And so I’m happy about that result and happy for a vigorous debate in Texas when it comes to public schools and religion and this idea of funding education through vouchers.

AMANDA: Yeah. I think it’s encouraging that we are having a robust public policy debate, conversation — not just in the legislature, but I can say, Holly, living here now, in the public conversation. I mean, I am not used to seeing articles about vouchers on the front page of the paper. Yes, I still get a hard-copy paper of my local paper, the Dallas Morning News, which just last week had a front-page story, saying ‑‑ the title on my paper was “Are Vouchers Inevitable?”. And then the ‑‑ it was a long article with pro and anti-voucher interest groups talking about the politics of the issue.

I’d also point out, as another really helpful piece to help understand what’s going on, reporting in general from The Texas Tribune, which does really outstanding reporting around Texas politics. But they have a great piece that focuses on one of these holdouts, these House Republicans, Representative Gary VanDeaver who represents a district in Northeast Texas, very rural district. We’ll put in the show notes a link to the piece titled “‘Our public school system is our town’: Why this rural Republican is voting against school vouchers.”

And reporters Brian Lopez and Patrick Svitek note how the upcoming Republican primary might come into play for members like Representative VanDeaver, because it seems like Republican primary voters are very pro-voucher. There was a ballot initiative or just not even initiative ‑‑ kind of a ‑‑ just a, “What do you think about this issue?” on the last primary ballot for the Republicans, and in this particular district, 87 percent of them approved of vouchers.

And so we’re seeing like a big disconnect between what people say they want but then when it actually comes to what happens in their community, what’s really going to serve their community. And I think that’s the debate that’s playing out.

And I joked about football earlier, but really, in a lot of these small towns, the local high school, the Friday night lights is a very real thing. You know, it’s a community gathering place for the community. It is also a place where a lot of people are employed in these small towns.

So public schools are very important, particularly in rural communities, and I think we’re seeing why this policy just doesn’t make sense for a lot of places and how that’s playing out at the Texas legislature.

HOLLY: I like the diversity of opinion that we’re starting to hear within that Republican caucus, I guess, in Texas, but what I really like is for people to pay attention to the diversity of thought within religious circles in Texas as well and not to assume that pastors necessarily are all about funding private religious education.

And, in fact, we know, Amanda, the group Pastors for Texas Children that brings together pastors and other people working in churches and those that go to churches and support churches, coming together to support Texas children by opposing school vouchers.

And they know the way communities work in their different religious communities, different religious beliefs, but all caring about their community and their children and wanting strong public schools and being very wary of programs that would harm public schools and instead divert money to private religious education.

AMANDA: Yeah. We’re so grateful for the advocacy of Pastors for Texas Children and the larger coalition of groups that’s working together to help have a really reasoned policy debate that will come to the right result for everyone, not just the few interests that are pushing for this bill.



Segment 3: Additional resources on vouchers (starting at 24:00)

HOLLY: As we close out today’s show, I just want to remind all of you that this debate over school vouchers is continuing across our country. We have resources in our show notes that we mentioned in the last segment, and we’ll add some other resources, too. These resources will show why BJC continues to be concerned about the impact of voucher programs and how they affect faith freedom for all.

As we’ve discussed here and in earlier podcasts, the current Supreme Court has moved away from a clear articulation of religion’s special place in our constitutional tradition and the separation model that has long served as a barrier to government entanglement in religion.

How the high court’s decisions play out in the lower courts is a matter that we and others are closely watching and seeking to influence. At the same time, so much depends on what elected officials in states and communities do to provide for quality education and how they understand or fail to understand the impact of so many attacks on public education, as well as the attacks on religious freedom.

AMANDA: And these debates, both here in Texas and elsewhere, don’t happen in an ivory tower. They are playing out in state legislatures and community gatherings across our country. I hope that if you’re listening to the podcast, that you are also involved in your local community to support public schools, ensuring that all children have access to a quality education, no matter their faith.

HOLLY: 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, as well as a link to part one of the discussion.

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 would love to hear from you. You can send both of us 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 the show, share it. Take a moment to leave us a review or a five-star rating to help others find us.

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.