Public schools winning voucher battles in court

NEA Today, Oct 1999 by Simpson, Michael D

With a string of legal victories this year, the tide in the voucher war has turned in favor of public education.

The legal battle over private school vouchers still rages, but there is encouraging news from the front. Courts have declared vouchers illegal in five states while upholding them in only one. Legal challenges are pending in two other states.

The most important decision to date: the May 1999 ruling in a Maine case, Strout v. Albanese, where the U.S. Court of Appeals for the First Circuit outlawed sectarian school vouchers as a violation of the Establishment Clause of the U.S. Constitution.

"Writ simple, the state cannot be in the business of directly supporting religious schools," Judge Juan Torruella wrote for a unanimous court. Parents have the right "to send their children to sectarian schools," the ruling noted, but "they do not have a right to require taxpayers to subsidize that choice."

The decision effectively bans religious school vouchers in the states that comprise the First Circuit: Maine, New Hampshire, Massachusetts, and Rhode Island, as well as Puerto Rico.

Voucher backers are likely to appeal the case to the U.S. Supreme Court.

Last April, the Maine Supreme Judicial Court ruled that religious school vouchers violate both the federal and the state constitution. "In the entire history of the Supreme Court's struggle to interpret the Establishment Clause," the court said, "it has never concluded that such a direct, unrestricted financial subsidy to a religious school could escape the strictures of the Establishment Clause."

The Vermont Supreme Court then ruled in June that sectarian school vouchers violate the Vermont constitution, holding that using tax dollars to pay for vouchers runs afoul of a clause in the state constitution prohibiting the government from forcing citizens to "support any place of worship."

In August, a federal district court in Ohio, acting on a suit brought by NEA and others, struck down the Cleveland voucher plan.

On the downside, the Wisconsin Supreme Court last year upheld the Milwaukee voucher program, and the U.S. Supreme Court refused to review the case. And in April of this year, the Arizona Supreme Court upheld a program granting taxpayers a tax credit for donations to organizations that provide private school "scholarships."

One of the curious aspects of the current court battles over vouchers is that the U.S. Supreme Court has already ruled on the issue. In the 1973 decision PEARL v. Nyquist, the Court squarely held that sectarian school vouchers violate the U.S. Constitution.

In upholding the Milwaukee program, however, the Wisconsin Supreme Court said that Nyquist isn't a controlling precedent because the public money is funneled to the religious schools through the parents.

Significantly, the First Circuit Court of Appeals in Strout specifically said that the Wisconsin Supreme Court was flat wrong and that Nyquist is still the law of the land.

On this count, the importance of the Strout holding cannot be overstated. It is a definitive ruling by a federal appellate court-just one level below the Supreme Court-construing the U.S. Constitution to strike down vouchers.

NEA and the affected state affiliates participated in each of these lawsuits. Several other association-sponsored lawsuits are still pending (see On the Docket).

Michael D. Simpson

NEA Office of General Counsel