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False Assumptions on Voucher Programs and the Law

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Frank R. Kemerer's Commentary, "The Publicization of the Private School" (Jan. 8, 1992), will prove an effective weapon in the hands of the public school lobby. It will please all others who fear competition in education, who don't like the idea of parental choice in schools, or who harbor antagonism toward religious schools. The article is built on a number of false assumptions.

First is the underlying assumption that the state is not merely a superior educator but that it is the sole educator. That is, private education exists by sufferance of the all-wise mind of the state educational bureaucracy and, in all essentials, private schools should be carbon copies of public schools. Mr. Kemerer singularly fails to point to the fact that the education prescribed and controlled by the bureaucracies is what has put the nation at risk. Even more important is his utterly mistaken view that, under the American Constitution, a governmental monopoly on the educating of children legitimately exists. This brings me to his second presumption, namely, that the U.S. Supreme Court has ruled in favor of the monopoly.

But in Pierce v. Society of Sisters (the 1925 Supreme Court decision relied upon by Mr. Kemerer), the Court did no such thing. Pierce did not involve government regulation of private schools; it upheld the right of private schools to exist and struck down the Oregon public-school monopoly law as violative of that fundamental liberty. The Supreme Court, to this hour, has not taken up for full review any case which has turned upon the power of the state to regulate curriculum, textbooks, teacher qualifications, teaching methodology, pupil testing or class size.

This brings me to State v. Faith Baptist Church, the Nebraska Supreme Court decision relied upon by the author. Faith Baptist, however, never really tested the basic issues involved in state regulation of private schools. That is because no adequate record was ever developed in that case. No expert witnesses of real educational qualifications were offered by the school. No discovery was pursued against the state to ascertain what quality of education was actually taking place in the state schools.

In stark contrast are the decisions of our courts in five cases which Mr. Kemerer omits to mention, Wisconsin v. Yoder (U.S. Supreme Court held that the Amish are relatively free to pursue traditional informal Amish educational ways), Ohio v. Whisner, Kentucky State Board of Education v. Rudasill, Vermont v. LaBarge, and Bangor Baptist Church v. State of Maine (in all of which the courts held that the state could not subordinate religious schools to licensing or pervasive regulations without violation of their First Amendment freedoms). In all of these cases not only was real expert testimony brought to boar (among the witnesses were Donald Erickson, Paul Schmidt, George Madaus, Kevin Ryan, John Cronin, Russell Kirk), but the public-education bureaucracy was taken under extensive discovery proceedings.

It was this exposure of the bureaucracy's false pretenses that was especially meaningful to the courts. The records of public-school dropouts, illiteracy, and disciplinary failures contrasted starkly with the intellectual and moral quality of the despised (and truly persecuted) religious schools. Further, it was shown that the mass of regulations which the state attempted to impose on the religious schools was, in part, so vaguely and incomprehensibly worded that even the state officials on the witness stand could not explain the arcane language. These regulations were, anyhow, little but prescriptions. "Do it our way, follow our recipe, and all will be well," they seemed to be saying. Whereas the private schools said: "Let the proof be in the pudding. We have demonstrated that education has happened in our schools."

Do I mean to imply that these schools felt they were a law unto themselves? Quite the opposite. They believed that "we the people," for the common good, may require that the traditional "basics" be taught all children--and in a safe and sanitary environment. The quality of the education could be tested by self-administered, value-free, nationally standardized tests and by the parent market. The trials in these cases gave the state a free hand to call all parents of the church-schools that it wished to. These parents would prove--and did prove--that the ignorant rednecks the states had confidently presumed them to be, were, instead, sensible, responsible people who simply wanted the best for their kids.

Mr. Kemerer's third presumption is that voucher programs necessarily entail pervasive state regulations. He manages this argument by treating such programs as institutional subsidies. Hence he is able to paint a dire picture by showing how comprehensive controls have followed housing subsidies. Voucher proposals now being advanced in Pennsylvania and California, however, are not subsidy proposals. They consist not of institutional grants but of aid directly to parents. This is based on a principle long since recognized by the U.S. Supreme Court in cases such as Cochran v. Louisiana, Everson v. Board of Education, Board of Education v. Allen, and Witters v. Washington Department of Services for the Blind. The Pennsylvania voucher proposal contains no burdensome regulations of private schools. To be a voucher recipient, a parent must merely be meeting the requirements of the state compulsory-attendance law. That law contains excellent provisions protective of religious schools and of parental rights.

Lastly, Mr. Kemerer seems worried over the fact that, if a voucher program is enacted, private schools will become plagued by claims under anti-discrimination laws. He fails to state that private schools today, without voucher programs, are already subject to such laws, accept them, and live with them quite comfortably.


William B. Ball is a constitutional lawyer who has tried most of the significant cases involving public aid to private schools and those involving governmental regulation of religious schools and education (including Wisconsin v. Yeder). He is a partner in the law offices of Ball, Skelly, Murren & Connell in Harrisburg, Pa.

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