School Choice In The Courts

Policy Backgrounders | Education

No. 153
Monday, August 07, 2000
by Melanie L. Looney

Constitutionality Of Unrestricted Voucher Programs

The battlelines with regard to unrestricted voucher programs are drawn in the First Amendment. The First Amendment, ratified on December 15, 1791, states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." Legal precedents over the years have divided the above sentence fragment into two smaller pieces - the Establishment Clause and the Free Exercise Clause. Jurisprudence has treated these two clauses as if they appeared in separate documents rather than the same sentence. Court decisions have rarely focused on the balance required to make both clauses effective. And as the composition of the Supreme Court has changed over time so have the arguments and boundaries said to be created by the Establishment Clause.

"It is clear the founders intended the government to neither promote nor prohibit religion."

The proponents of school choice programs that include religious schools argue that any public money flowing to religious schools is the result of free and independent choices of the parents. Therefore, a voucher program that includes private nonreligious schools but excludes private religious schools would violate the Free Exercise Clause. The opponents of such programs argue that any money that flows to a religious school, regardless of whether it is directly from government or indirectly through parents via vouchers, would violate the Establishment Clause. When both the Establishment Clause and the Free Exercise Clause are read together, it is clear that the founders intended the government to be neutral with regard to religion, neither promoting nor prohibiting it. Yet because the Supreme Court decides cases after isolating these clauses, conflicting standards result.

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