Voucher Fight Shifts From High Court to State Houses

By Ori Nir

Published May 30, 2003, issue of May 30, 2003.
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WASHINGTON — Activists on both sides of the debate over school vouchers are gearing up for a state-by-state battle in courts and legislatures nationwide.

Observers attribute the rapidly expanding battleground to the Supreme Court’s decision last June permitting the use of government-funded vouchers to pay for parochial school tuition. The newest front in the policy debate was opened last week, when a coalition of education, civil-rights and Jewish groups filed suit against Colorado’s recently approved vouchers program.

Under a bill signed earlier this month by Colorado Governor Bill Owens, state funds could be used to pay for religious school education. Opponents of the bill, including the American Jewish Congress and American Jewish Committee, filed a lawsuit in the Denver County District Court, arguing that the new program would violate sections of the Colorado state constitution dealing with the separation of church and state.

The Colorado lawsuit is the first to be filed regarding vouchers since last June, when the Supreme Court ruled that a similar program in Cleveland did not violate the federal Constitution. Without the automatic option of a federal appeal, the legal battle on school vouchers is now taking place on many independent fronts, over whether vouchers violate individual state constitutions.

“You will see more of this now, as other state legislatures are considering school-choice bills,” said Richard Komer, a senior attorney at the Institute for Justice, a Washington, D.C.-based public interest law firm that has filed a brief in support of the Colorado law. Referring to other states where voucher bills survived court challenges, Komer said, “If we succeed in Colorado — as we have in Florida, Wisconsin and Illinois — I expect it would encourage other legislatures to do the same.”

Komer predicted imminent legal battles in Vermont, South Dakota and Washington state, to be followed by more in the not-so-distant future.

Earlier this month, Congress debated the issue following the surprising statement by Washington, D.C., Mayor Anthony Williams, a Democrat, in support of a school-voucher program.

Observers on both sides are viewing the legal fight in Colorado as an important test case, because the state’s constitution includes both clauses that opponents have been using to challenge voucher programs: the so-called Blaine Amendment and the compelled-support clause. The Blaine Amendment, variations of which are found in 37 state constitutions, is named after a failed federal constitutional amendment introduced in the U.S. Congress by Senator James G. Blaine of Maine in 1875. The amendment effectively bars public funds from being appropriated to sectarian schools.

The compelled-support clause, variations of which are found in 29 state constitutions, essentially says that no person shall be compelled to attend or support a church or religious ministry without his or her consent.

All but three states — Louisiana, Maine and North Carolina — have at least one of these two clauses in their constitution.

Although these clauses have been understood to mandate a higher wall between government and religion than the federal constitution does, various courts have interpreted them differently. Some courts have sided with the conservative, pro-voucher camp, which argues that these clauses should be interpreted in the now-defunct historical context of Protestant churches attempting to limit the power of the Catholic Church in America.

Voucher proponents have already succeeded in fending off legal challenges to programs in Wisconsin, Arizona and Illinois. Courts in Florida and Puerto Rico sided with school-voucher opponents, adopting a more stringent reading of their respective state constitutions.

The outcome of the Colorado case will not serve as a direct precedent for other state courts with different constitutions, but observers say it is certain to influence the legal strategies and political determination of both voucher supporters and opponents.

In general, voucher supporters say that they have the momentum, thanks to the Supreme Court’s decision and GOP pickups in the November elections. Republicans now control 21 state legislatures, up from 17. The number of legislatures controlled by Democrats is down from 18 to 16. Twelve states have split party control, down from 14.

With Republicans in control of the legislature and governor’s mansion in Denver, the legislative road to vouchers was relatively smooth. The measure passed the state House on February 19 and narrowly squeaked through the Senate a month later. Owens signed it early this month.

Although the plan is modest — the vouchers will pay tuition for no more than 3% of Colorado’s 736,000 public school students — it signifies a major victory for voucher advocates and represents an important legal test. If it survives legal challenges, the Colorado bill could serve as a model — both legislatively and judicially — for similar initiatives in other states.

Under the measure, about 20,000 students will qualify for vouchers in 2008, making Colorado’s program the largest in the country. The bill requires 11 school districts — including the state’s two largest — to offer vouchers because of low ratings, which are based on student performance on the state’s achievement test. Other school districts can voluntarily participate in the voucher program.

To qualify, students must be economically disadvantaged and must receive an unsatisfactory ranking on at least one section of a standardized test. If a student is eligible, the school district sends a check to a private school of his parents’ choice, whether secular or parochial. For elementary and middle school students, the voucher would cover full tuition up to 75% of what the state would have paid to educate the student in a public school. For high school students, the figure would be capped at 85%.

The Colorado program is planned to be gradually phased in. In the 2004-2005 school year, only up to 1% of a district’s students will be allowed to receive vouchers for private schools. Each year until the 2007-2008 academic year, the percentage will increase, with a cap of 6% in that school year. After three years, the program will be evaluated.

The program was panned in a statement released by AJCongress. The organization argued that the plan “removes local control from school boards, compels taxpayers and parents to support religion, gives tax dollars to sectarian and private institutions, diverts monies from the Public School Fund and undermines the thorough and uniform system of free public schools.”

“The federal Constitution may permit states to run voucher programs; it does not compel them to do so,” said Marc Stern, AJCongress’s assistant executive director and top attorney.

Officials at the Anti-Defamation League say the organization is likely to join AJCongress and AJCommittee in the lawsuit against the Colorado law.

Meanwhile, with its long history of supporting vouchers, the Orthodox Union is set to submit an amicus brief in defense of the Colorado program. The union’s brief is likely to attract the support of another Orthodox organization, Agudath Israel of America.

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