The Zelman decision both creates and makes more obvious legal and political clouds that will yet hang over voucher proposals.
At the end of June, a sharply divided U.S. Supreme Court ruled in Zelman v. Simmons-Harris that the First Amendment’s establishment clause did not block an educational voucher plan in Cleveland that included providing financial assistance to parents to send their children to private religious schools. (“The Voucher Decision: Charting the New Landscape Of School Choice,” July 10, 2002.) This opinion has the immediate effect of lifting a constitutional cloud cast by the U.S. Constitution over voucher systems that involved private religious schools. And by lifting at least this source of legal uncertainty, the opinion already is encouraging state and local officials who support vouchers to go forward with their efforts to get voucher systems adopted in their states and cities. Perhaps more significantly, the opinion will also encourage federal elected officials in the House, the Senate, and the White House to propose and pass education reform legislation that promotes vouchers.
Given the likely increase in political activity in support of vouchers in the wake of the Zelman decision, it is important to address what are likely to be some of the issues, disputes, and problems that we as a nation will be facing. Certainly, the debate will continue regarding the wisdom of vouchers as a way of seeking to improve American education and student learning. But that issue can be separated from the issues that may arise simply because these voucher systems may involve private religious schools (even though they need not be included, as a constitutional matter). Contrary to the claim by George Washington University Law School professor Jeffrey Rosen in The New York Times (June 28, 2002) that the court’s decision “refines religious neutrality” and may play a “calming role in the culture wars,” the decision is very likely to increase conflict over entanglement of church and state.
The dissenters on the court painted an extremely dark picture of the future. Justice John Paul Stevens said, “Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.” Justice David H. Souter noted that “not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty.” “Nor,” he added, “will all of America’s Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools.” And Justice Stephen G. Breyer wrote, “In a society composed of many different religious creeds, I fear that this present departure from the court’s earlier understanding risks creating a form of religiously based conflict potentially harmful to the nation’s social fabric.”
These conflicts will not only be fought out in the state legislative houses and state referendums, but also in the state courts, as constitutional objections are raised based on state constitutional provisions.
Even if a state or locality were to get past the objection of one religious group not wanting to be taxed to support what is, to them, the offensive religious teaching of another group, other contentious issues will arise. The Cleveland voucher program given the green light by the Supreme Court in Zelman operated under a state statute requiring that participating private schools not “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.” It is hard to imagine that any voucher plan not including a similar provision would ever be politically acceptable. Yet, unfortunately, this provision itself raises a host of difficult constitutional and legal issues:
- How far, constitutionally, may states go in imposing conditions on the receipt of voucher money that directly implicate the free-speech and free- exercise rights of the private religious school?
- Will state enforcement of regulations such as these create an excessive entanglement between church and state?
- Is a law such as the one quoted above consistent with Supreme Court precedent that bars states from imposing “hate speech” prohibitions?
- Can any such regulation be written in a way that it does not fall victim to the charge of being unconstitutionally vague?
- Would refusal to permit a school to participate in a voucher scheme survive claims of religious discrimination and violation of the free-exercise clause?
As Justice Breyer observed: “Any major funding program for primary religious education will require criteria. And the selection of those criteria, as well as their enforcement, inevitably pose problems that are divisive. Efforts to respond to these problems not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government.” This then may mean we are inevitably moving down a road in which very controversial and divisive schools—those far from the mainstream— will be participating and must be allowed to participate in future voucher plans.
Despite the claims of the justices in the majority—especially Justice Sandra Day O’Connor in her opinion—that the decision in Zelman does not represent a dramatic break from the past, this opinion does open the door to a wholly new set of issues that have the potential for absorbing our political and legal attention for years to come.
The irony of this development may very well be that contrary to first reactions, the opinion both creates and makes more obvious legal and political clouds that will yet hang over voucher proposals. Yes, the court’s opinion may provide an initial impulse toward vouchers, but that impulse may very well play itself out quickly, as voucher proponents and opponents begin to focus on the rough road ahead, especially in the aftermath of the attacks last Sept. 11.
The majority on this court may have aimed to achieve one goal, but produced an unanticipated consequence.
Put differently, the majority on this court may have aimed to achieve one goal, but produced an unanticipated consequence. The general thrust of this decision, and others of this majority, is to make it more and more possible for government to provide aid to religious activities. This court majority has made clear that it is a form of unconstitutional discrimination, for example, for a college not to fund a student-run religious newspaper, or for a school to exclude a religious organization from using its facilities. But those very doctrines, along with the court’s prohibition against hate-speech codes, are going to make it very difficult to exclude even the most obnoxious and controversial private religious schools from participating in voucher plans.
Given this constitutional context, it seems unlikely that many states and localities are going to want to embrace vouchers. And if they do embrace vouchers, the entanglement issues and divisive controversies that ensue may come back to haunt them. Voucher advocates may have won a battle in Zelman, but the Supreme Court might very well have cost them the war.
Tyll van Geel, an attorney specializing in education law and policy, is the Earl B. Taylor professor and chair of the educational leadership program at the University of Rochester, in Rochester, N.Y. William Lowe Boyd is the Batschelet Chair professor and head of the graduate programs in educational administration at Pennsylvania State University, in University Park, Pa. His specialty is education policy and politics.