Legal Battle Over Vouchers Just Starting
By Megan Twohey, Staff Writer
Get ready for round two.
Even though the U.S. Supreme Court ruled in June that they are constitutional, school vouchers face more legal challenges ahead.
That's because over half the states have at least one amendment to their state constitution that restricts public funding of religious institutions. These amendments are not affected by the Court's ruling, and voucher opponents are already gearing up to use them to battle the creation of new voucher programs.
"In those states where language is restrictive, these amendments will be one of the major tools that voucher opponents use," says Todd Ziebarth, a policy analyst with the Denver-based Education Commission on the States.
The amendments vary. Thirty-six states have constitutional provisions that prohibit using public tax dollars to fund religious institutions. Many date back to the late 1800s and were born out of anti-Catholic sentiment.
In addition, 29 states have measures that prohibit compelling citizens to support any ministry without his or her consent. Others have amendments that restrict public funding to public schools, require all education to be under state control or require the legislature to assure that education serves a public purpose.
Only three states--Louisiana, Maine and North Carolina have no restrictive amendment of any kind.
Voucher opponents can use these provisions as ammunition in both the political and legal arenas.
For example, in what they admit to be a public relations stunt, Democratic lawmakers in South Carolina are planning to introduce legislation that would strengthen the state's constitutional amendment that prohibits state money from being used for the "direct benefit" of private schools.
House Minority Leader Doug Jennings concedes that Democrats want to draw negative attention to a proposal being floated by Mark Sanford, the Republican challenger for governor, that would make vouchers available for students who attend failing public schools.
But legislatures in South Carolina and elsewhere aren't expected to pass voucher legislation any time soon. Lawmakers in 24 states introduced bills this year authorizing voucher programs or setting up tax breaks for private education expenses. None passed.
However, should voucher laws pass in states with restrictive constitutional amendments, organizations like the National Education Association (NEA) that oppose public funding for private or religious schools say they will haul them into court.
"Legal challenges will be our last line of defense," says Michael Pons, a NEA policy analyst.
The state constitutions in Colorado and Texas--the two states where experts think voucher legislation is most likely to passhave uncertain orientations, according to an assessment of state amendments by Frank R. Kemerer, regents professor of education at the University of North Texas, meaning that they appear to be neither clearly permissive nor clearly restrictive of vouchers.
All these amendments are subject to the interpretation of state supreme courts.
When voucher programs were challenged in Wisconsin and Ohio, supreme courts upheld the programs despite restrictive constitutional provisions.
But in Vermont, Washington and other states, supreme courts have struck down voucher or voucher-like program because they found them to be in violation of a restrictive amendment.
Florida's supreme court is now evaluating the constitutionality of the state's voucher program. A decision is expected soon.
Instead of waiting for more legal battles over vouchers to surface in the states, defenders of vouchers are busy selecting previous state court cases to challenge.
Their long-term goal is to appeal these decisions to the U.S. Supreme Court, where they're hoping to get a ruling holding that state constitutional decisions restricting school choice beyond the Establishment Clause are themselves unconstitutional under the federal religion clauses, the Free Speech Clause.
"We're looking at states like Washington and Vermont that we believe have violated the free speech clause," says Robert Freedman, staff attorney for the Institute for Justice, which has been in the thick of many voucher court cases.
He says the pro-voucher side has drawn legal strength from a recent federal appeals court decision in Washington. In a 2-1 ruling, a panel of the US Court of Appeals for the Ninth Circuit invalidated a Washington State law that denies theology students college benefits that are available to all other students. The state had argued that its constitutional amendment prohibited it from giving money to a religious program.
"Many people in the press think the next phase is going to be a slow, state by state battle," says Freedman. "But we're going to move very quickly."