by Chelsea Langston

Diversity in education is a core principle that the Supreme Court has long validated. In Zelman v. Simmons-Harris (2002), the U.S. Supreme Court upheld a voucher program in Ohio that provided public funds to parents of modest means, permitting them to use the funds to send their children to any private educational institution participating in the program, including faith-based organizations. In the Ohio program, despite the fact the most of the participating schools were indeed faith-based, the Supreme Court ruled that the program was permitted under the Establishment Clause.

The Court noted that parents were free to choose to send their children to public school, participating religious institutions, or secular independent schools. Therefore, because parents were presented with a diversity of educational options for their children, and the families retained the autonomy to choose how to educate their children, the Ohio government remained neutral religiously.

In late June, the Colorado Supreme Court invalidated the first locally established, district-wide voucher program in the nation, the Douglas County Choice Scholarship Pilot Program. While programs of this nature are usually set up by state legislatures, in Douglas County, the local school board unanimously voted to create this program in 2011. The school district voucher program offered scholarships up to 75% of the district’s per-student revenue, reserving the other 25% for public schools. However, the ACLU, along with several other organizations, filed suit against Douglas County School District in 2011, rendering the school-choice program inactive. The plaintiffs argued chiefly that the program violated the Blaine Amendments in Colorado’s state constitution.

Blaine Amendments, still found in a majority of state constitutions, came about in the 1800’s as a response to Catholics seeking funding to start their own schools due to the fact that at the time, public schools were still distinctly protestant in their instruction and culture. Blaine Amendments were established by Protestant public school proponents to ban government funds from going to any “sectarian” (read Catholic) educational institutions. It is not insignificant to note that during and after the passage of the Blaine Amendments, public schools continued to openly instruct students in Protestant religious doctrine.

An amicus brief filed by the Friedman Foundation for Educational Choice and the Independence Institute noted that voucher programs showed to have a net positive effect on academic achievement in several states.

While the plaintiffs were awarded a preliminary injunction in this case by the district court, in March 2013, the Colorado Court of Appeals overturned the ruling and it was sent to the Colorado Supreme Court for review, where the voucher program was ultimately struck down. The Colorado Supreme Court’s ruling seems to be in direct contrast to the U.S Supreme Court’s ruling in Zelman, where the Court made clear vouchers do not equate to governmental funding of religion. The Colorado Blaine Amendment issue may now make its way to the Supreme Court.

In Nevada, a new piece of legislation being touted as the nation’s “most sweeping voucher program ever enacted” is giving parents around $5000 per child (not attending public school) to put towards any educational expenses of their choice, including religious institutions.

Nevada’s constitution also has a Blaine Amendment, prohibiting public funds from going to any sectarian institution. Proponents of the Nevada voucher program are concerned it could go the way of the Douglas County program and become judicially invalidated. However, there is hope that this will not happen, and it is significant to note that the voucher program has not yet been challenged in court.

One of the sponsors of the Nevada bill, Rep. Scott Hammond, likened the state’s school voucher program to Medicaid, where public funds are used to compensate faith-based healthcare institutions for the care of a patient. The state senator also emphasized that the individual recipient of funds is the one making the choice where to receive services, whether medical or educational, not the government.

According to the Las Vegas Sun, “In North Carolina and Florida, court battles are still being waged over the constitutionality of vouchers. In Indiana and Alabama, vouchers have been declared constitutional.”

As state school voucher programs are created, implemented, and legally challenged around the country, it is important to emphasize that religious schools are just some of many players in a diversity of options for parents regarding their children’s primary and secondary education.

Parents should be able to consider religion as one of many factors at play, including academic rankings, class sizes, the learning challenges of particular children, extracurricular offerings, athletics, teaching styles, etc., when they make the very personal choices about how and where to educate their children. Public policy, to be just, needs to find a way to accommodate faith-based educational institutions for parents who want to choose them, just as Medicaid has accommodated religious hospitals for patients who wish to seek medical services there.

Faith-based schools often provide unique, indispensable educational opportunities for children who have failed to thrive in other educational settings. It is essential for policymakers to continue to develop innovative solutions for working around Blaine Amendments to ensure the diverse educational needs of all children and families are met.