Court Is Flooded With Briefs On Implications for Vouchers

By Caroline Hendrie — December 10, 2003 3 min read
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Hoping to sway the U.S. Supreme Court in a case sometimes called “Vouchers II,” school groups from across the political spectrum have weighed in with arguments for and against Washington state’s policy of denying college scholarships to theology majors.

In friend-of-the-court briefs preceding last week’s oral argument in the case, education groups opposed to publicly financed vouchers for private schools rejected a federal appeals court’s conclusion that Washington’s policy violates the U.S. Constitution’s guarantee of a free exercise of religion.

Pro-voucher schools groups, on the other hand, urged the high court to affirm the lower court ruling, which they view as the logical next step after last year’s Supreme Court decision in Zelman v. Simmons-Harris.

The Zelman ruling, which upheld Ohio’s program of tuition aid to Cleveland students in private schools, made clear that states may choose to include religious schools in voucher programs. Advocates of such programs now see the Washington case as a chance for the high court to issue a ruling that would have the effect of forbidding states to exclude such schools.

The Zelman decision is cited frequently in education groups’ dueling briefs in the appeal over the Washington state-scholarship policy, Locke v. Davey (Case No. 02-1315).

The National Education Association, for example, stresses that “nothing in Zelman can be read to stand for the proposition that the First Amendment’s religion clauses contain any mandate that the states must fund religious education.”

By contrast, the Black Alliance for Educational Options, a Washington-based organization that promotes school choice, called the court’s ruling in Zelman “a ray of hope for low-income and minority students.” BAEO urges the court to remove what it sees as state-constitutional roadblocks to expanded opportunities for poor African-American children.

“BAEO is vitally interested in the outcome of this litigation not because its members have any particular interest in furthering religious belief or observance, but because religious schools in the urban centers may provide the only available private education alternative,” the group’s brief says.

But a brief filed by several anti-voucher groups including the National School Boards Association argues that the high court’s “recognition of state authority to confer protections beyond those mandated by the federal constitution” was at the heart of the Zelman ruling and should be applied in the Locke case.

“States rightly enjoy wide latitude in determining how to allocate their scarce resources, and the court has recognized the special importance of state and local flexibility in education spending,” says the NSBA brief.

Blaine Amendments

A prominent theme in the briefs is the history of the so-called Blaine amendments, which exist in about two-thirds of states’ constitutions, including Washington’s.

Those provisions generally restrict the public funding of religious education, and get their name from James G. Blaine, a former speaker of the U.S. House of Representatives who sponsored an unsuccessful bid in 1875 to amend the U.S. Constitution to bar public aid to “sectarian” schooling.

At the time, Protestant Christian teachings were prevalent in public schools, and barring aid to sectarian schools was seen as a means of rebuffing efforts by the nation’s growing Roman Catholic population to secure public funding for parochial schools.

“State versions of the Blaine Amendment were adopted out of deep-seated animosity towards organized religion in general and Catholicism in particular,” argues a brief by prominent Washington lawyer Kenneth W. Starr on behalf of the Fairness Foundation, an Indianapolis-based philanthropy that focuses on improving access to education and health care for low-income families.

A brief by the Institute for Justice, the Center for Education Reform, and other pro-voucher groups argues that “[i]n exactly the same way that the Blaine Amendments were intended to preserve the advantages of the Protestant (public) schools over their Catholic (nonpublic) counterparts, Washington’s Blaine Amendment now serves to preserve the advantages of nonreligion over religion.”

But the New York City-based American Jewish Congress and the American Federation of Teachers joined with other anti-voucher groups in contending in a brief that efforts to block aid to parochial schools stemmed from a “legitimate fear—which only in hindsight can be dismissed as unfounded—that the Catholic Church sought exclusive political power, and that if it could, it would establish itself as the sole official church.”

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