For church-state separationists, the last week in April amounted to one step forward and one step back.
Within a seven-day span, opponents of school vouchers enjoyed one of their biggest legal victories ever when the Maine Supreme Court ruled that voucher funding of religious schools is unconstitutional, and then suffered one of their biggest legislative defeats when the Florida legislature passed the first ever statewide voucher plan.
These developments, coupled with increased activity in other states, have drawn attention to the major voucher push under way nationwide.
While private school voucher controversies are fought in state legislatures every year, including this year, the situation in Maine was significantly different.
Generally, in voucher battles, state officials attempt to set up a program where taxpayers finance tuition at religious and other private schools. If the plan becomes law, education and civil liberties groups, such as Americans United for Separation of Church and State, challenge the plan in court. But in Maine, the case was the opposite.
In 1981 the Maine legislature passed a law that permitted towns that do not have public high schools to pay tuition to any public or private school a parent chose. However, to avoid constitutional difficulties and on the advice of the state attorney general, the legislature excluded religious schools from the program.
Cynthia and Robert Bagley, parents in Raymond, Maine, claimed the exclusion violated their free exercise of religion and was tantamount to discrimination. The Bagleys, along with four other families in Raymond, enrolled their sons in Cheverus High School, a Catholic school operated by the Society of Jesus in Portland, and asked the Raymond School District to pay for their sons' tuition costs. When the school district declined the request, citing the law, a lawsuit was filed.
Last year, a state district court dismissed the case, ruling that the school district had properly applied state law.
The Maine Supreme Court, hearing Bagley v. Raymond School Department on appeal, merely had to consider whether exclusion of religious schools from the state's tuition program is permissible. However, to the delight of voucher opponents nationwide, the court did that and much more.
In a sweeping 5-1 decision issued April 23, the justices not only held that the parents' rights had not been infringed but also ruled that publicly funded voucher subsidies for religious schools would violate the U.S. Constitution.
"The purpose of the [First Amendment's] Establishment Clause," wrote Justice Leigh Saufley in the majority opinion, "is reflected in the often repeated words of Thomas Jefferson: to build 'a wall of separation between Church and State.'...Distilled to its essence, the Establishment Clause prohibits the government from supporting or advancing religion and from forcing religion, even in subtle ways, on those who choose not to accept it."
Carefully dissecting the Supreme Court's numerous decisions on tax aid to religious schools, the Maine justices rejected the claim that vouchers subsidize parental choice, not religious schools.
"Although the school is chosen by parents, not the State," the court ruled, "choice alone cannot overcome the fact that the tuition program would directly pay religious schools for programs that include and advance religion. None of the Supreme Court's decisions to date have ever intimated that such direct subsidies of religious schools could survive an Establishment Clause challenge."
The Maine court also noted, "If the religious school exclusion were eliminated, the State would likely pay more than $5,000 per student per year to Cheverus High School, without restriction on the use of those funds. In the entire history of the Supreme Court's struggle to interpret the Establishment Clause, it has never concluded that such a direct, unrestricted financial subsidy to a religious school could escape the strictures of the Establishment Clause."
Americans United, one of the groups that helped fight the voucher case in Maine's courts, applauded the ruling.
"This is a serious blow for voucher supporters in their effort to force taxpayers to finance private religious education," said Barry W. Lynn, executive director of Americans United. "For the first time, we have state Supreme Court justices ruling that a voucher plan would violate the First Amendment. It is an important ruling, and its significance cannot be overstated."
The Maine parents received assistance from Clint Bolick, litigation director of the Institute for Justice and one of the nation's most prominent voucher advocates. In an interview with The New York Times, Bolick described the ruling as an "aberration."
But a review of the court rulings on this matter suggests otherwise. It is true that the Wisconsin Supreme Court upheld a voucher plan in Milwaukee in June 1998. That ruling was appealed to the U.S. Supreme Court, which declined to hear the case. However, the Wisconsin ruling is alone in its support of voucher funding of religious schools.
In contrast, voucher plans have been struck down by state courts in Ohio, Vermont, Pennsylvania and now, Maine. (The Supreme Court in Puerto Rico, a U.S. commonwealth, has also ruled against vouchers.) Federal courts have twice ruled against voucher claims in recent years, in cases brought from Maine and Wisconsin.
Though the Supreme Court has not yet heard a voucher case, the justices examined three private school tuition reimbursement programs in the early 1970s, and in each instance, the program was found to be unconstitutional.
Americans United Legal Director Steven K. Green explained that the Maine court's Bagley ruling, therefore, is anything but an aberration.
"Out of six voucher cases at the state level, vouchers have been upheld only once," Green said. "When you add in the two federal cases, the record is seven courts to one that vouchers are unconstitutional. This figure does not include the three U.S. Supreme Court decisions striking down tuition reimbursements. By any standard, this is not a rousing endorsement of vouchers. The overwhelming opinion of courts at the state and federal levels is that vouchers are unconstitutional."
Despite the Maine court's unequivocal condemnation of public funding of religious schools, voucher supporters are undeterred. Nowhere was that more apparent than in Florida.
Newly elected Gov. Jeb Bush (R) described vouchers as the "top priority" in his effort to improve education in the state. Of course, the governor didn't actually use the word "vouchers"; polls in the state consistently show people are opposed to the concept. Instead, Bush relied on the euphemism "opportunity scholarships."
Regardless of what words are used to describe the proposal, when the GOP-dominated Florida legislature convened in January, many thought passage of a voucher plan was inevitable. Americans United and allied organizations fought relentlessly to derail the legislative steamroller, but the political deck was stacked.
The State House easily passed Bush's plan on April 28. Two days later, the Senate followed suit, approving the legislation by a 25-15 margin on the final day of the legislative session.
Political arm-twisting was the rule of the day. As the St. Petersburg Times described it, vouchers wouldn't have passed if "every senator voted as he or she really wanted to." Senate Majority Leader Jack Latvala (R-Palm Harbor) publicly expressed concern that Bush might punish Pasco County, which Latvala represents, unless he voted for the voucher plan. Two Republican senators who delivered eloquent speeches against vouchers ultimately voted for the Bush proposal after intense lobbying from the governor's office.
Under the Florida program, public schools will receive a grade, from A to F, based on standardized test scores. Schools that score well will get extra money from the state, but in schools that receive an F, students will be able to spend a $4,000 voucher at any private school that accepts them, including religious schools. Public schools will lose the funds that students take to private schools.
While voucher plans have been passed elsewhere, the Florida program will be the first, and largest, statewide voucher system. (Wisconsin's plan was limited to Milwaukee, Ohio's voucher plan only covered some Cleveland schools, and programs in Vermont and Maine exclude religious schools.) In fact, in the very near future, Florida's voucher program will be larger than all of the existing voucher programs combined.
Four "failing" schools have been targeted for voucher support this fall, but according to analysis of Florida Department of Education statistics by the St. Petersburg Times, that number could grow to 169 schools in 33 of the state's 67 school districts as soon as the 2000-01 school year begins. As such, while 2,587 students will become eligible for vouchers this year, that would swell to 155,615 students in just two years.
The Florida program will be challenged in state court by Americans United and other organizations. In addition to the U.S. Constitution's church-state protections, the Florida Constitution contains strong language prohibiting public funding of religion "directly or indirectly."
AU's Lynn sees this as definitive. "I don't understand how voucher supporters could read the clear and unambiguous language of their state constitution and still think they can get away with this stunt," he observed.
"I read in the Florida papers that Gov. Bush said he will be smiling when he signs this voucher bill into law," Lynn added. "I wonder if he'll be smiling when a judge tells him that this legislation is unconstitutional."
The school voucher battle now shifts to other states.
New Mexico Gov. Gary Johnson (R) has demanded a statewide voucher program. The legislature ended this year's session in late March but was called back 45 days later by Johnson to work on budgetary issues, including his voucher plan.
The governor has proposed giving 100,000 students vouchers worth about $3,000 for one year and then expanding the program to all students in the state. Under Johnson's most recent plan, vouchers would be phased in over a 12-year period for all students statewide, starting with Bernalillo, Dona Ana and Santa Fe counties.
Americans United Legal Director Steve Green appeared before a joint session of the legislature May 7 and warned that vouchers violate the constitutional separation of church and state. On May 10, both the House and Senate overwhelmingly rejected Johnson's voucher plan. Further wrangling with the governor is expected.
Texas Gov. George W. Bush (R) is asking the state legislature to consider a voucher plan that would pay the tuition of 80,000 students from five counties at private schools at the public's expense. Vouchers would be worth about $4,000 each.
The plan passed the State Senate's education committee, but now appears stalled. Bush also seems pessimistic. "I think people are afraid that vouchers will hurt public schools," the governor told reporters in mid-May. "I disagree. But the opponents of vouchers have done a good job." (Americans United is a member of the Coalition for Public Schools fighting the plan.)
Pennsylvania Gov. Tom Ridge (R) has announced that a state voucher program is his "top priority." His plan is similar to the Florida program. Students in public schools categorized as "academically distressed" would be given vouchers ranging from $2,000 to $4,000 to transfer to private schools that accept them.
Cardinal Anthony Bevilacqua and the state's Catholic hierarchy are lobbying hard for the measure. But public school supporters and civil libertarians are working against it.
AU's Lynn addressed a "Be Vocal Against Vouchers Rally" May 6 in Phila-delphia. 16 groups cosponsored the event, including the Pennsylvania Council of Churches, Black Clergy of Philadelphia and Vicinity, the American Jewish Congress, parents and teachers organizations and the League of Women Voters.
- New York City Mayor Rudy Giuliani has escalated his campaign to set up a voucher program. Announcing his budget April 22, he denounced the city's public schools as "dysfunctional" and "just plain terrible," then concluded, "The whole system should be blown up." The Rev. Jesse Jackson, speaking in New York on May 4, opposed Giuliani's voucher scheme. Talking to students at Paul Robeson High School, Jackson said, "Your schools should not be blown up, they should be built up."