Vouchers multiply even without public support

More states allow public funding for students to attend private and religious schools, but are these plans in line with state constitutional provisions?

Public funding of private K-12 schooling through vouchers continues to be a contentious issue across the U.S. Those in favor of vouchers argue that they improve educational programs by supporting competition in the system, offering students the option of attending participating private schools at state expense. Those opposed argue that this funds individuals’ private decisions to the detriment of the public school system (and public school students) and encourages segregated institutions. While a solid majority of Americans continues to oppose vouchers — 57% in this year’s PDK/Gallup poll, 63% and 70% in the two prior years, respectively (see p. K18) — we have nonetheless seen a rapid growth in the number of proposals in state legislatures over the past few years. (There has been a rapid increase in tax credit and education savings account programs as well, but we’ll leave those for another day.)

While a solid majority of Americans continues to oppose vouchers, the number of voucher proposals considered by state legislatures has grown over the past few years.

The first publicly funded voucher program was passed in 1990 in Wisconsin. In 2011, 42 states considered vouchers or state tax credits, with four states — Arizona, Colorado, Indiana, and Wisconsin — enacting new voucher programs. Florida enacted a voucher program in 1999, Utah in 2005, and Oklahoma in 2010. In 2013, new voucher programs were enacted in three states — Mississippi, North Carolina, and Wisconsin. In 2015, so far Indiana and Wisconsin have expanded their voucher programs.

While more people have always opposed vouchers rather than favor them in each of the last 20 years that the PDK/Gallup poll has asked the question, voucher programs have gained. So it’s not a surprise that we’ve seen lots of legal challenges. Vouchers have been challenged as a violation of the:

Separation of church and state;
Federal protections for students with disabilities; and
State constitution’s education clause.

Separation of church and state

The U.S. Supreme Court has resolved the issue of whether there is a violation of the First Amendment to the U.S. Constitution when public funds support private religious schools through vouchers. In Zelman v. Simmons Harris, 536 U.S. 639 (2002), the Court held that vouchers could be used to pay private religious school tuition as long as the participants were not defined by religious criteria and the parents had a real choice between private secular and sectarian schools. Although some state constitutions are more stringent in the requirements for separation of church and state, Zelman has closed the debate on the federal issue of public funds for private religious schools through vouchers, with the reasoning that the funding is going to the religious organization through the independent choice of the parent, not through a direct decision of the state.

Students with disabilities

Most voucher schools educate considerably fewer special education students than the public schools. For example, in Milwaukee, 19.5% of the students in the Milwaukee Public Schools have disabilities, compared to 1.6% of the students in the Milwaukee voucher program. Claims have or could be made against voucher programs under federal antidiscrimination legislation and the federal Education for All Handicapped Children Act (originally signed into law in 1975 and amended by the Individuals with Disabilities Education Act in 1990). The most straightforward is the claim that many private schools that participate in the voucher programs discourage disabled students from applying for admission or fail to provide services and reasonable accommodations for them if they do enroll. In a 2011 investigation prompted by the complaints of disability rights organizations, the U.S. Department of Justice found that the Milwaukee voucher program caused the segregation of students with disabilities in the public schools because the participating private schools were discouraging students with disabilities from applying and failing to offer them appropriate services once they enrolled. Unfortunately, the Wisconsin Department of Public Instruction has not managed to correct this situation yet.

Finally, in the nine states that maintain special education voucher programs for students to be served within private schools, parents forgo their children’s rights to the substantive and procedural guarantees within the federal Handicapped Children Act. Whether this requirement can survive federal judicial scrutiny remains to be seen.

Each of the 50 states contains a provision for public education within its own state constitution. (The U.S. Constitution does not even contain the word education.) In states where education is considered a state constitutional right, that right is derived from these provisions. When someone challenges whether the state is providing adequate resources or whether those resources are equitably distributed, these provisions are invoked. Many of these provisions are similar in language, e.g., many states require the state legislature to create a “thorough and efficient” or “uniform” system of public education.

The question raised with vouchers is whether the voucher program falls outside of the provision. Does a voucher program render the public education system not “thorough and efficient”? By creating an additional set of publicly funded but privately controlled schools, is public education no longer “uniform” or no longer a unified “system” of public education?

The Florida Supreme Court found that the Florida voucher program, the Opportunity Scholarship Program, violated the state constitution.

Under the Opportunity Scholarship program, students in the lowest-rated public schools were eligible for $4,300 in annual tuition aid, which they could use at private (including religious) schools. In its decision, the court said, “The OSP violates (the state uniformity) provision by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.”

In Colorado, the state supreme court concluded that the Colorado Opportunity Contract Pilot Program, a statewide voucher program that provided tuition to low-income students to attend private schools, violated the state constitutional requirement of the “maintenance of a thorough and uniform system of free public schools.” Owen v. Congress of Parents, Teachers, 92 P.3d 933 (Colo. 2004).

However, the Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program against a challenge that the creation of a voucher program made state-funded public education no longer “as uniform as practicable” as required by the Wisconsin Constitution. Davis v. Grover, 480 N.W.2d 460 (Wis. 1992). There the court found that the voucher program was an attempt to provide additional educational choices for students. In Jackson v. Benson, the Wisconsin Supreme Court reiterated the notion that, as long as the state provides an adequate education for students, it can provide additional opportunities through a voucher program. 578 N.W.2d 602 (Wis. 1998).

Not many state constitutions are as pointed as Arizona’s, which explicitly states that public funds cannot be used in support of private schools. In Cain v. Horne, the Arizona Supreme Court in 2009 declared this provision prohibited public funds going to private schools through a voucher program that provided tuition to private and religious schools for fostered and disabled children. But after the decision, the Arizona legislature adopted the Empowerment Scholarship Account program, which provided funds that could be used for educational purposes, including private school tuition, to individuals. The Arizona Court of Appeals upheld the program in Niehaus v. Huppenthal in 2010; the Arizona Supreme Court declined further review.

Other possibilities

There have been some general challenges and discussions about whether states can provide funds to private entities without any checks or strings on the money. States generally attach guidelines and accountability measures on their spending. Giving public funds to private schools without restrictions or accountability requirements, e.g., student achievement, teacher certifications requirements, may be going too far.

And finally, when is enough enough? Courts have found that voucher programs don’t violate state constitutions because the legislature can always provide additional educational opportunities. As Julie Mead, an education professor at the University of Wisconsin-Madison, asks, when do vouchers undermine students’ state right to an education and make it “merely a right to shop for one?” (Mead, in press).