Education Vouchers: Constitutional Issues and Cases

Publication Date: May 2003

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Education; Law and ethics

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Abstract:

On May 19, 2003, the Supreme Court agreed to review a lower federal court decision - Davey v. Locke - which held the free exercise clause of the First Amendment to be violated by a provision in a state constitution barring a state scholarship from being used for a theological major at a religious college. Such "no religious use" provisions exist in a number of state constitutions and have become the focus of a number of suits in the wake of the Supreme Court's 2002 decision in Zelman v. Simmons-Harris. In Zelman the Court, by a 5-4 margin, upheld the constitutionality under the establishment of religion clause of the First Amendment of a school voucher program that gave tuition assistance to poor children in failing public schools in Cleveland to enable them to attend private schools in the city, notwithstanding that most of the schools were religious in nature. In so doing the Court substantially loosened the constraints that previously applied to voucher programs under the establishment clause and shifted the attention of voucher advocates and opponents to state constitutional provisions that have been, or might be, construed to prohibit such programs. In Davey v. Locke the U.S. Court of Appeals for the Ninth Circuit concluded that such a provision violates the free exercise clause, and it is that issue that the Supreme Court has now agreed to examine. The Court will hear and decide the case during the Term that begins in October 2003.

Supreme Court decisions prior to Zelman had evaluated the constitutionality of voucher programs primarily on the basis of whether the recipients of the vouchers had a genuine choice among secular and religious options about where to use them. If the available educational choices were predominantly religious in nature, the Court held the program to violate the establishment clause. If there were a number of secular as well as religious options available, the Court held the programs to meet constitutional requirements. In Zelman the Court substantially loosened this genuine choice criterion by holding that the available universe of choice includes not only the private schools where the vouchers themselves can be redeemed but also the full range of public school options available to parents.

Although Zelman appears to resolve most of the questions concerning the constitutionality of school voucher programs under the establishment clause, legal questions remain with respect to the effect of the more strict church-state provisions of some state constitutions and whether those state limitations are consistent with either the free exercise or equal protection clauses of the U.S. Constitution. State and lower federal courts have reached conflicting decisions on these issues so far. But, as noted, the Supreme Court has now agreed to review a lower court decision on the matter.

This report details the constitutional standards that currently apply to indirect school aid programs and summarizes all of the pertinent Supreme Court decisions, with particular attention to Zelman. It also summarizes the pending case of Davey v. Locke and other recent and ongoing state and lower federal court cases concerning vouchers. The report will be updated as events warrant.