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Vouchers and the Citizen: Some Legal Questions

by Walter McCann & Judith Areen - 1971

This article focuses on three of the legal issues most often raised in discussion of voucher systems: race, religion, and maintaining quality in schools.

Displaying unusual humility for a member of the legal profession, Mr. Justice Jackson once warned the Supreme Court that it must avoid becoming the "super board of education for every school district in the nation."1 Thoughtful lawyers and judges are justifiably reluctant to intervene in school matters, but they are continually called upon to deal with legal matters which inevitably influence the education of children. Probably no single event has had more impact on the shape of American education in the last fifteen years than the Supreme Court's decision in Brown v. The Board of Education.2 There is little evidence that courts and lawyers, or professors for that matter, are overwhelmingly qualified to make educational policy. Yet they will continue to wind up in that position as long as educators, students, and parents ask, as they must, "what the law is" on particular issues.

This discussion of the "law" on education vouchers should be read, therefore, with some skepticism. The ability of lawyers to predict what the courts might do with such a radically new approach to public education is unavoidably limited. More importantly, educators must be wary lest important educational decisions needlessly become the captive of tentative legal predictions. Sound educational planning should ultimately control the shape of educational change, whether it be voucher plans or something else, not quick acquiescence to supposed legal barriers which might be removed by appropriate legislation.

Here we will focus on three of the legal issues most often raised in discussion of voucher systems: race, religion, and maintaining quality in schools. State constitutions and laws vary widely in their treatment of these issues, particularly of religion. Because exhaustive treatment is beyond the scope of this article, and probably the patience of its readers, most of the discussion, therefore, will focus on federal standards and cases, although representative state laws will be discussed where appropriate.

Complicating the analysis are the many quite different programs which huddle under the rubric education vouchers. Furthermore, legal questions cannot easily be answered in the abstract. Is aid to religious schools constitutional? Are voucher systems legally permissible? Is racial balance required? Ask a lawyer these questions and the unsatisfying response is predictable: "It depends." It depends on the particular facts, plans, and programs under scrutiny. It depends on how things would work. We will try to reduce the tangle of dependency in our legal analysis by dealing generally with the regulated model proposed by the Center for the Study of Public Policy to the Office of Economic Opportunity, both because we are most familiar with that plan and because it embodies the education safeguards most consistent with the Constitution. We begin, then, with a brief outline of the proposed voucher plan.

Brief Description The Center has proposed that vouchers or tuition grants be made available on a demonstration basis to parents of elementary school children. The vouchers would be roughly equal to the present per pupil expenditure level in the public schools, with suitable adjustments for rental and renovation costs over the duration of the experiment. Parents could use a voucher to pay the education costs of their child at the school of their choice as long as the school agreed to three conditions: 1. to charge parents no tuition in excess of the voucher level; 2. to admit students without regard to race and to allocate at least one half of the open places randomly among the applicants to the school (as long as there were fewer applicants than places, random allocation would be unnecessary); and 3. to provide to parents all information about the school requested by the local group running the voucher demonstration. In addition, the Center has recommended that compensatory funds be provided to supplement the vouchers of educationally disadvantaged students. This would provide funds for the additional costs of their education and an incentive to schools to admit these students.3

Many existing private schools presently charge tuition far in excess of the public school expenditures. They would undoubtedly find the limitation unacceptable. Under the proposed voucher system, they would probably continue to operate as they do now, without public funds. But a new market would be created. Some schools would undoubtedly believe that they could offer strong educational opportunities for the same cost as public schools, and with the required open admissions policy. The tuition limit might seem to dampen the possibilities for increasing the amount of resources available to schools, but it need not. First, schools are free to raise funds from sources other than tuition.

Second, more families would have a stake in increasing public school funds (families with students now in parochial schools, for example). They would perhaps be less likely to oppose needed tax increases. Most important, the tuition limitation prevents public subvention of economically exclusive schools. Public funding of such schools could well usher in a system of education even more segregated by family income, not to mention race or class, than the present sorry situation.

The admissions restrictions also aim to preserve equality of access to voucher schools. Other approaches, quotas for one, might protect against invidious racial discrimination. Yet other, more subtle, forms of grouping could lead to the same undesirable results. Random admissions to at least half the places in an oversubscribed school protects against other less easily identified, yet equally destructive, practices, such as discrimination against slow learners. Note that the proposed random admissions requirement applies only to applicants.

Finally, the information requirement is critical. Parents must be well informed about available schools and their differences. Creation of more diverse school opportunities would otherwise serve little purpose. With that information, plus the economic power to choose among schools, the assumption is that parents will make wise decisions for their children. This assumption is not universally shared, but it is at least as believable as the assumption that inflexible geographic zoning is a wise and equitable way to dole out educational opportunities.

Vouchers and Racial Discrimination Voucher critics have expressed genuine concern that financing education by payments to parents would lead to racial segregation in the schools. This charge must be faced squarely, even though it is disingenuous not to balance it against the reality of our already highly segregated schools. While some voucher systems (such as the Friedman unregulated model) might well lead to more racial segregation, a happy coincidence of education and legal policy appears to prevail in this area. Such systems seem as constitutionally suspect as they are educationally undesirable.

Six Southern states, at one time or another, have attempted to establish "tuition voucher programs." They were designed to avoid dismantling segregated "dual" public school systems by channeling public funds to segregated private schools. The more significant historical fact, however, is that all six efforts were held unconstitutional by the courts; there is every reason to predict the same fate for any similar attempts, either in the North or the South.4

First, past case decisions firmly hold that government may not avoid providing citizens with the equal protection of the laws by conducting essentially public functions behind an artificial veil of "private" sponsorship. Under this policy (known as the "state action doctrine") various "private" organizations have been held subject to the constitutional obligations usually imposed on the state by the equal protection clause of the Fourteenth Amendment: a political party which prevented blacks from voting in the party primary;5 a restaurant located in a state building;6 a community park;7 and a hospital which received federal and state subsidies.8 While few private schools have so far been held subject to the equal protection clause,9 a "private" school which received public funds via vouchers would seem inexorably subject to that provision of the Fourteenth Amendment.

Once subject to the state action doctrine, a private school would be treated essentially like any public school with regard to racial discrimination. This leaves unresolved the difficult issues of legal differences between "accidental" (de facto) segregation and governmentally fostered (de jure) segregation.10 But it strongly argues that whatever decisions affect public schools would also apply to private schools accepting voucher funds. Thus if a voucher school were found to discriminate unconstitutionally against the admission of minority students, it would be ordered to "desegregate" itself. Alternatively, the transfer of public funds to such a school might be enjoined.11

A third remedy might also be available in the case of a discriminatory voucher school.12 The courts could look not only to the school itself, but to the local or state education agency which adopted the voucher plan. This approach was taken in the Southern voucher cases. Courts there held that if the adoption of a voucher system had been motivated by a desire to further racial discrimination, the entire plan should be enjoined. This approach avoids dealing with private discrimination, for a court sees itself as testing the action of a governmental body (be it state or local). If that action furthers discrimination, the entire program can be voided.

What if a state does not intend to fund racially discriminatory schools under a voucher system, yet the system in fact supports some discriminatory schools? Would the entire program still be voided? While there is little case law which speaks to this point, two trends emerge. First, in testing the "purpose" of the governmental body which adopts a voucher plan, courts have tended to look at the actual or probable effect of the plan.13 If either would aid discriminatory schools, then the courts are likely to find that was the intended purpose of the plan, and the entire program would be suspect.

But even if the courts did not find governmental purpose to aid discrimination, they might nonetheless enjoin any program which -lacked sufficient safeguards against discrimination. Thus in Griffin v. State Board of Education,14 a federal district court held unconstitutional a state legislated tuition voucher plan, despite arguments that grants to individual schools which discriminated could be stopped without enjoining the entire program. In the words of that court:

The canvassing and policing of the tuition law to confine its enjoinment to instances [which do not further segregation] would be a Herculean task. It could hardly give full assurance against the abuse of the law. A law may of course survive despite its unacceptable consequences, if the valid portions may be independently enforced. Here, as we see, there can be no such separation and the entire law must go.15

The court's language could mean that no voucher plan will ever be acceptable because of the danger of aiding discriminatory schools. More reasonably, however, the decision places a heavy responsibility on any governmental body about to adopt a voucher plan. It must devise one in which the state itself polices discrimination to the satisfaction of the courts.

The Center proposal which includes both a random admissions process for at least half the places in participating schools and state enforcement machinery for detecting and eliminating invidious discrimination in voucher schools is one good approach to the problem. Even if racial discrimination by the state or by individual voucher schools is forbidden, however, a voucher school might, in fact, have a racially segregated student body if students of only one race applied to the school. A state or local agency could adopt a racial balance requirement to prevent this, of course, but such action may not be mandated by the Constitution. Genuine freedom-of-choice plans have not been found unconstitutional except in areas which previously had school systems segregated by law. In those jurisdictions the Court has held freedom-of-choice plans are unconstitutional if there are reasonably available other ways "promising speedier and more effective conversion to a unitary, nonracial school system."16 In those jurisdictions, a voucher plan might not be held constitutional until the courts were satisfied that the dual school system had been abolished.

How big a segregationist "loophole" is the voucher system's reliance on parental choice? If minority parents are assured admission to any school (e.g., if a large portion of the places in any school are allocated randomly among applicants), those who desire integrated schools for their children can make that choice. Some, of course, will not. There will likely be some all-white or all-black schools, a not uncommon situation in the North and the South. Indeed, financial incentives combined with better quality programs, which should attract both black and white students to all schools, may do more than any of the attempts made so far in Northern cities to provide more students with an integrated experience. To suggest that parents might consider educational factors at least as important as racial ones strikes some as ingenuous. But it may be the most pragmatic basis on which to resolve the deepening racial schism in education. Certainly, past practice, where choice has been restricted to the financially favored, is a weak basis on which to judge.

Finally, an analysis of the relationship between voucher schools and the equal protection clause must also consider the extent of the protection provided. Judicial concern for equal educational opportunity has, until now, focused primarily on prohibiting racial discrimination. But other children may need protection too. The rationale of Brown v. Board of Education17 could apply with equal, if not greater force, to poor children as to black children.18 The extent to which courts will give the same careful attention to poor children, however, remains unclear. Present cases do not extend this far. Proponents of egalitarian voucher systems must, at least for the present, voluntarily build such protection into their plans. Otherwise, they may be disappointed when the courts do not come to the rescue of poor children, even though persuasive legal and educational arguments can be made for such action.

Religion and Vouchers If misplaced identification of the voucher concept and aid to segregated schools fail to kill the proposed voucher plans before they are tried, then fallout from the ancient battle over aid to parochial schools could provide the coup de grace. The temptation is strong to avoid this fight by excluding parochial schools entirely from the first voucher programs. Yet it is conceptually, politically, and perhaps even constitutionally difficult to justify their exclusion from a plan which is supposedly based on the policy of allowing parents more choice in the education of their children.

Unfortunately, while the law on racial discrimination is fairly clear, the constitutionality of aid to parochial schools is very much in flux. Two cases now before the Supreme Court may soon provide clues: Lemon v. Kurtzman,16 in which a three-judge federal district court upheld the Pennsylvania "pur-chase-of-secular-services" plan of aid to nonpublic schools; and DiCenso v. Robinson,20 in which a three-judge federal court struck down the Rhode Island purchase-of-services plan. If the Court were sweepingly to hold purchase-of-services plans unconstitutional, parochial schools might also be legally excluded from the voucher plan. But since it is likely to rule narrowly, even a decision against purchase-of-services plans will probably not resolve the issue of parochial school participation in a voucher plan.

Traditional case law in the area, unfortunately, leaves much room for speculation. Only two important Supreme Court cases deal directly with aid to parochial schools. In Everson v. Board of Education,21 the Court upheld public payment of the costs of transporting students to parochial as well as to other non-public schools. In Board of Education of Central District No. 1 v. Alien,22 the Court similarly upheld the loan of textbooks. Walz v. Tax Commission2^ the most recent Supreme Court pronouncement on church-state issues, is also relevant. Although it dealt with tax exemptions for churches rather than school aid, it proclaimed new church-state guidelines.

In Walz, Chief Justice Burger noted, with a pragmatism that will delight some and anger others, that no perfect or absolute separation of church and state is really possible; the very existence of the First Amendment is an involvement of sorts—one which seeks to mark boundaries which avoid excessive entanglement. In past decisions, including the Alien textbook case, the First Amendment was interpreted to require that an aid program have: 1. a secular legislative purpose and 2. an effect which neither advances nor inhibits religion. In Walz, by contrast, the Supreme Court held that:

Each value judgment under the Religion Clauses must... turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practice or have the effect of doing so.24

This modified test seems to narrow the range of activities prohibited by the establishment clause. Legislation which "advances" religion is no longer necessarily barred unless it actually helps to "establish" it. Such aids as busing or loaning textbooks are permissible, in the opinion of the Court, for any activity which "realistically" establishes religion can be stopped "while this Court sits."25 The Walz decision seems to make more constitutionally palatable a voucher program directed at improving the quality of secular education in private as well as public schools.

Walz also placed new importance on the need to avoid excessive entanglement of the state in the affairs of the church. Tax exemptions were upheld in Walz in part because they involved less entanglement than would taxing churches. But what constitutes excessive entanglement, as one would suspect, was not clarified. According to the Court, the "test is inescapably one of degree." "The questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement."26

The traditional approach to aid to parochial schools has attempted to separate the "secular" from the "sectarian." In the Everson busing decision, this was relatively easy for no one seriously charged that bus rides were so inherently "permeated" with religiosity that religion was being directly aided. Indirect aid is apparently acceptable if the direct impact is permissible. Otherwise, one faces the problem that any government service or tax reduction frees private funds which might or might not be devoted to religious activity. Thus if providing bus rides to all children is itself an acceptable governmental objective, the "savings" from general busing which accrue to parochial schools (or parents) are also acceptable. It is presumably something like a 5 percent tax reduction for all taxpayers, which might eventually result in a greater contribution to religious activities in the form of personal gifts or bequests.

In Alien, permeation was more of a problem, for textbooks are not as obviously secular as are bus rides. But the case had come to the Court on a very meager record. On a limited factual basis, the Court found that the books involved were "secular" and upheld the aid.

Many states have recently passed purchase-of-secular-services legislation. This proliferation of aid to religious schools is based on the notion that the state can purchase secular educational services for its children from religious schools. Sponsors argue that the approach is a reasonable extension of the secular-sectarian line drawing embodied in the Alien decision.

Whether their argument is right should be decided soon. The Lemon and DiCenso cases previously mentioned, which both involve such legislation, are now before the Supreme Court. The Pennsylvania plan, tested in Lemon, typifies the purchase-of-services approach. It empowers the State Superintendent of Public Instruction to contract for the purchase of "secular educational services" from nonpublic schools in the state. Secular education services are limited by the act to courses in mathematics, modern foreign languages, physical science, and physical education.27 The decisions implicit in drawing this list are interesting to contemplate, i.e., Latin, is out, but so is Greek. Perhaps the Greeks were considered too religious for the educators of Pennsylvania?

In a voucher system the secular-sectarian approach would mean that vouchers cashed by parochial schools would be limited to strictly secular activities. A less onerous approach might require the participating schools to split the school day explicitly between secular and religious activities. This would presumably decrease the state's burden of policing expenditures.

But whatever one concludes as to the educational wisdom of a plan which skews the curriculum of nonpublic schools by limiting aid to courses which are considered religiously "safe," its constitutionality is in doubt for two reasons.

First, the attempt to police such a line may necessarily entangle the state excessively in the affairs of the church in violation of the Walz standard. This appears to be the conclusion reached by the three-judge federal district courts which held unconstitutional both the Rhode Island and the Connecticut purchase-of-services laws.28 There is, however, an even more serious problem with this type of secular-sectarian distinction. Even if successful, it may not sufficiently protect against the establishment of religion forbidden by the First Amendment. Assume for a moment that religious schools did in some satisfactory way separate secular and sectarian activities for the purpose of spending public funds. Suppose the state were to provide schools of one denomination with many times the funds provided to those of another denomination. Even if those funds were only available for expenditure on secular educational activities, most would agree that the state was helping to establish the religion of the favored schools by helping them to attract more students, and therefore, more potential converts.

This argument depends on assuming some correlation between the amount of resources available and the quality of education provided in a school. The truth of this assumption is not self-evident, particularly in light of the Cole-man report.29 A good teacher may be willing to teach for less money than a poor teacher; expensive equipment may not be as important as skilled instruction. But extreme differences in the amount of educational resources available will tend to create differences in the quality of education provided in different schools, if only because it will become more difficult to keep salaries competitive or equipment up-to-date as the relative differences between the resources of schools increase. While not as restrictive as a law requiring attendance at the schools of one particular denomination (or of any denomination as opposed to secular nonpublic schools for that matter) unequal state funding of schools looks suspiciously like unconstitutional establishment of religion. Relevant in this regard is Sherbert v. Verner. The Supreme Court there held that withholding unemployment benefits from a Seventh-Day Adventist who refused to work on Saturday contrary to her religious belief unconstitutionally interfered with her religious rights. The Court said:

The Governmental imposition of such a choice (between giving up unemployment benefits or violating her religious precepts) puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Sunday worship.31

Similarly present purchase-of-services plans place the state in the position of favoring some nonpublic schools while discouraging attendance at others because the plans fail to relate funding to enrollment. In Pennsylvania, for example, statistics, for the first year of the program reveal some schools received more than ten times as many funds for each child enrolled than other schools.32 Such a disparity must violate the neutrality in religious matters mandated by the Constitution.

But what alternatives are there to the pitfalls of trying to separate the secular from the sectarian? Not surprisingly, we think that the voucher system is one alternative. There are two constitutional arguments for allowing parochial schools to participate in voucher programs. First, in a voucher system money is transferred to parents who are then permitted to transfer the funds to schools; this may mean that the funds are no longer subject to the constraints of the establishment clause. Alternatively, even if the religion clauses of the Constitution do apply to voucher funds, the state remains neutral if it provides roughly equivalent support to the education of a child whether or not the child attends a religious or nonreligious nonpublic school.

The first argument is appealing on its face and gains plausibility from such programs as the G. I. Bill. Under the bill thousands of veterans used government funds not only to attend church-related schools, but for seminary training at that—presumably because the G. I.'s rather than the state chose which school would be "aided."33

Other analogies have been proposed. Would it be unconstitutional to support the religious education of children with money provided to parents under family assistance plans or a negative income tax? Would anyone argue that the faithful parishioner violates the Constitution when Social Security payments find their way, at least in part, to the collection plate on the Sabbath? Probably not, for the choice is private and personal; the government is in no way involved in the allocation decision.

The difficulty with this reasoning is that the state is still involved to a certain extent in any voucher program. It requires, for example, that funds be expended only on schools—people cannot choose to use the vouchers entirely at their will. Indeed, the state may place other restrictions on which schools are eligible to cash vouchers, such as the restrictions on admissions embodied in the Center's proposal. With these strings riding with the vouchers, it is more difficult to argue that they somehow become entirely "private" once "given" to parents. Furthermore, in the area of racial discrimination, courts have not hesitated to overlook procedural distinctions in arguing that constitutional limitations apply even though funds are channeled through "private" hands in the form of vouchers. Perhaps racial equality is inherently subject to more stringent constitutional protection and scrutiny than religious rights, but the distinction may be hard to maintain.

The second argument, which might be termed the neutral funding argument, rests on the notion that the state expends no more to educate a given child in a religious nonpublic school than it would expend to educate the same child in a secular nonpublic school. -

Isn't this the same argument parochial schools have been trying to make— with notable lack of success—for years? No. For one thing, it is not an argument that the state must fund nonpublic schools. Rather, it is an extension of the doctrine that the judiciary should overrule legislative judgments only when a constitutional principle is clearly violated. If a state legislature has decided that the value of funding all nonpublic schools to improve the quality of educational opportunity available to all children outweighs possible establishment dangers, that judgment should not be lightly overturned. This is especially true in light of the Supreme Court's apparent willingness to reject only those programs which "realistically" establish religion.

But what of the prayers and other religious activities that may go on in parochial schools which receive funds? Isn't this a clear violation of the cases outlawing prayers or Bible reading? No. Those cases all arose with regard to practices in the public schools, which children of many religions are forced to attend. In a voucher system as long as secular public (and perhaps secular non-public) schools are open to any child, then no child will be in a parochial school except at the choice of his parents. Indeed, past Supreme Court decisions restricting prayers in public schools rested in part on the fact that parents were still free to choose a religious education for their children. In the words of Mr. Justice Brennan:

Attendance at the public schools has never been compulsory. Parents remain morally and constitutionally free to choose the academic environment in which they wish their children to be educated. In my judgment, the First Amendment forbids the State to inhibit that freedom of choice by diminishing the attractiveness of either alternative—either by restricting the liberty of the private schools to inculcate whatever values they wish, or by jeopardizing the freedom of the public schools from private or sectarian pressures.34

Absent public regulation or subsidy, poor families cannot exercise this theoretical freedom of choice. A voucher plan, in this sense, does nothing more than extend to all families the same opportunity to make a religious choice which was previously available only to the relatively affluent.

But even if it is constitutional to allow parents to send their children to publicly subsidized parochial schools, does it not violate the constitutional rights of other taxpayers to make them bear the cost of that subsidy? Two arguments suggest not. First, as long as the state spends no more to educate the child at the parochial school than it would to educate the child in a public school, the taxpayer is not shouldering an unconstitutional religious burden. Without public aid, most children in parochial schools will soon seek admittance to the public system, at perhaps even greater cost to the taxpayers. Secondly, even if aid to parochial schools nevertheless infringes in some way upon the religious rights of taxpayers, that infringement may be less than the infringement of freedom which no aid causes to families who are thereby kept from enrolling their children in parochial schools. The conflicting interests may require balancing, as in other difficult constitutional areas, such as free speech. The balance may well favor aid once an important secular purpose, such as raising the quality of secular education in all schools, is added to the scales.

In summary, the fate of participation by religious schools in voucher programs may be determined by the position adopted by the Supreme Court with regard to purchase-of-services legislation. There are several important ways, however, in which voucher plans appear more in keeping with the fundamental policies embodied in the religion clauses than do existing purchase-of-services laws. Therefore, the constitutionality of the parochial school participation in voucher plans will probably remain unresolved until a specific constitutional test of vouchers occurs. In the meantime, educational policy and state laws should guide decisions on this matter.35

Quality In Education Critics of the voucher plan also charge that it may lower the quality of education. They claim the voucher plan would, on the one hand, allow fly-by-night schools to open and flourish. On the other hand, it would allegedly drain the most talented students from the public schools, leaving them only the most difficult children. While these complaints are not the most consistent charges ever raised, they point to two potential problem areas.

First, supporting nonpublic schools could lead to the exodus of the most talented, or the most wealthy, from the public system unless strong guarantees of open admissions are enforced in nonpublic as well as public schools. The restrictions on racial discrimination discussed earlier are important but incomplete safeguards. It is equally important to prevent nonpublic schools from arbitrarily denying entrance to poor students or to those with learning problems. Because the protections of the Fourteenth Amendment are unlikely to go far enough, administrative or statutory guarantees are necessary. The Center proposal that any school should allocate at least one half of its open places randomly among the students who apply to that school is one approach. Consideration should also be given to possible frustration of open admissions requirements that could arise if nonpublic schools could arbitrarily suspend or expel "undesirable" students. The Center proposal suggests that all students should be entitled to at least the same due process protections in suspension or expulsion proceedings that they are accorded in the public system. Appropriate legislation can accomplish these results. With genuine open admissions, public schools should not be at a disadvantage with regard to serving students of all needs and abilities.

The problem of maintaining quality in nonpublic schools remains. Financial hucksterism should be relatively easy to avoid. If nothing else, voucher funds might be issued at intervals during the year, thereby preventing a school from opening, collecting all of its funds, and disappearing into the night.

But what of educational hucksterism? First, whether or not public funds are provided, states have a clear right to regulate all nonpublic schools. As the Supreme Court explained in Alien:

Since Pierce [v. Society of Sisters], a substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. [These] cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular education function.36

In exercising this right to regulate all schools, public and nonpublic alike, many states demand certification of nonpublic school teachers. Others specifically define required courses, or various measures of equivalence between non-public and public school instruction.37

Indeed, the legal precedent for state control of nonpublic schools is so clear that the real danger is not lack of regulation but overzealous regulation. The end result could be to turn nonpublic schools into carbon copies of the most restricted public schools unless freedom for diversity and from unnecessary regulation is carefully protected.

Relevant legal precedent is again available. In Pierce v. Society of Sisters, a decision which might be viewed as the magna carta of nonpublic schools, the Supreme Court struck down an Oregon statute which would have required all children to attend public schools. It held that "the fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers." 38

Similarly in Meyer v. Nebraska, the Court struck down a Nebraska statute which prohibited teaching any language but English to anyone who had not passed the eighth grade. It held that the statute violated the teacher's "right thus to teach and the right of parents to engage him so to instruct their children."39 Finally, in Farrington v. Tokushige,40 the Court struck down a Hawaii statute which both taxed and heavily regulated the Japanese foreign language schools. The Court found that the law deprived parents of a fair opportunity to procure for their children instruction which they thought important.

In a voucher system parents are the responsible arbiters of quality. While the state should certainly continue to be vigilant in denying funds to educationally dangerous schools, the real danger is that the state may instead become a vigilante driving out diversity in nonpublic schools. Overzealous effort to "protect children" and their parents from their mistakes could destroy what little diversity now exists.

In Conclusion In this examination of some major legal aspects of a voucher plan, three characteristic relationships between legal and educational policies have emerged. With racial segregation, legal constraints and educational wisdom run parallel. In church-state matters, federal law remains unclear. State law is often restrictive and may hamper the free play of educational choice. In the regulation of quality, there is a wide variety of choices. Power to regulate is clear, and the critical issue is how state and local officials will use their considerable authority.

The law does erect firm barriers to some types of voucher plans. Plans aimed at furthering racial discrimination, for example, would be forbidden. But for the most part, courts have avoided educational policy-making, stepping in only in those instances, such as racial discrimination, where efforts at self-regulation have failed. This is as it should be, for the other side of imposing apparently desirable principles by judicial fiat is a loss of flexibility, of maneuverability in shaping the education of our children and ourselves. It also means that difficult issues of religion, of quality, and ultimately the way in which we finance education will not be resolved by judges; they remain for us to decide.

1 Illinois ex rel. McColltan v. Board of Education, 333 U.S. 203, 237 (1948) (concurring opinion).

2 Brovmv. Board ofEducation, 347 US. 483 (1954).

3 For a more complete discussion of the plan, see, Education Vouchers: A Report on Financing Education by Grants to Parents. Prepared by the Center for the Study of Public Policy, Cambridge, Massachusetts, December, 1970.

4 See, Coffey v. State Educational Finance Commission, 296 F. Supp. 1389 (S.D. Miss. 1969); Griffin v. State Board of Education, 296 F. Supp. 1178 (E.D. Va. 1969); Brown v. South Carolina State Board of Education, 296 F. Supp. 199 (D.S. Car. 1968) 393 U.S. 222; Poindexter v, Louisiana Financial Assistance Commission, 275 F. Supp. 833 (E.D. La. 1967), off d per curiam, 389 U.S. 571 (1968); Lee v. Macon County Board of Education, 267 F. Supp. 458 (M. D. Ala. 1967); Hawkins v. North Carolina State Board of Education, 11 Race Rel. L. Rep. 745 (W.D.N.C. 1966).

5 Smith v. A llwright, 3 21 U.S. 649 (1944).

6 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

7 Evans v. Newton, 382 U.S. 296 (1966). For a subsequent case holding that because the park could not be run on a segregated basis as requested in the donor's will, ownership must revert to other heirs, see, Evans v. Abney, 90 S. Ct. 628 (1970).

8 Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied, 376 U.S. 938 (1964). Accord, Cypress v. Newport New General and Nonsectarian Hospital Assoc., 392 F. 2d 89 (4th Cir. 1967).

9 For an important case holding Girard College subject to state action, see, Pennsylvania v. Brown, 270 F. Supp. 782 (E.D. Pa. 1967), aff d 392 F. 2d 120 (3rd Cir. 1968), cert, denied, 391 U.S. 921. Cf. the holding of J. Skelly Wright: "At the outset, one may question whether any school or college can ever be so 'private' as to escape the reach of the Fourteenth Amendment. Institutions of learning are not things of purely private concern. ... No one any longer doubts that education is a matter affected with the greatest public interest. And this is true whether it is offered by a public or private institution. Clearly the administrators of a private college are performing a public function. They do the work of the state, often in the place of the state. Does it not follow that they stand in the state's shoes? Reason and authority strongly suggest that the Constitution never sanctions racial discrimination in our schools and colleges, no matter how 'private' they may claim to be." Guillory v. Administrators of Tulane University, 203 F. Supp. 855, 858-59 (E. D. La. 1962), opinion vacated on other grounds, 207 F. Supp. 554, aff'd, 306 F.2d489 (5th Cir. 1962).

10 De jure segregation has been held unconstitutional by the courts; de facto segregation, by contrast, has generally not. See, Offerman v. Nitkowski, 378 F. 2d 22 (2nd Cir. 1967); Deal v. Cincinnati Board of Education, 367 F. 2d 55 (6th Cir. 1966), cert, denied, 389 U.S. 847 (1967); Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir. 1965). Contra, Blacker v. Board of Education, 226 F. Supp. 208, 229 F. Supp. 709(E.D.N.Y. 1964); Branche v. Board of Education, 204 F. Supp. 150 (E.D.N.Y. 1962). While there is little sign of this distinction changing, it is becoming less important as courts appear more willing to label situations in the North and West as de jure. Recently, for example, de jure segregation has been found, and held unconstitutional, in Colorado, Illinois, California, and Michigan. See, Bradley v. Milliken, Civ. No. 20794 (6th Cir. 1970); Davis v. School District of Pontiac, Civ. No. 32392 (E.D. Mich. 1970); Keynes v. School District No. 2, 303 F. Supp. 280 (D. Colo. 1969); United States v. School District HI of Cook County, Illinois, 301 F. Supp. 210 (N.D. 111. 1969); Craw-ford v. Board of Education of Los Angeles County, Civ. No. 822854 (Cal. Sup. Ct. 1970).

11 The extent to which courts will go to prevent any aid going to discriminatory private schools is indicated by the recent ruling in Green v. Kennedy, 309 F. Supp. 1127 (D.D.C. 1970). There a three-judge court granted a preliminary injunction against tax benefits (which are traditionally sacrosanct) because they were going to segregated private Mississippi schools.

12 The term "voucher school" or "nonpublic school" is used throughout this article to call attention to the fact that the traditional labeling of schools as public or private is often misleading. The term "public" is applied to colleges even when they charge tuition many people cannot afford; or to academically exclusive high schools even when they have admission requirements few can meet; or to entire school systems even though they refuse to give out information about what they are doing or how well they are doing it. Conversely, the term "private" is applied to schools run by private organizations even when they are open to all applicants on a nondiscriminatory basis, charge no tuition, and willingly provide information about their operation. In other words, definitions have focused too much on who runs schools and not enough on how they are run.

13 See, Gomillon v. Lightfoot, 364 U.S. 339 (1960), in which the Supreme Court considered a law establishing municipal boundaries. On the surface, the law was unobjectionable. Nonetheless, the Court ruled that if the effect of the law was to deprive black citizens of the benefits of municipal residence, including the right to vote in municipal elections, then it was unconstitutional. For a more complete discussion of the role legislative motivation should play in constitutional adjudication, see, Ely, "Legislative and Administrative Motivation in Constitutional Law," Yale Law Journal, Vol. 79, 1970.

14 Griffin v. State Board of Education, 296 F. Supp. 1178 (E.D. Va. 1969).

15 Ibid.

16 Green v. County School Board, 391 U.S. 430.441 (1968).

17 Brown, op. cit.

18 See, John E. Coons, William H. Clune III, and Stephen D. Sugarman. Private Wealth and Public Education. Cambridge: Harvard University Press, 1970; Kirp, "The Poor, the Schools and Equal Protection," Harvard Educational Review, 1968, Vol. 38, p. 635; Michelman, "Forward to the Supreme Court Term of 1969: On Protecting the Poor through the Fourteenth Amendment," Harvard Law Review, 1969, Vol. 83, p. 7. Cf. James Coleman, et al., Equality of Educational Opportunity. Washington, D.C.: U.S. Department of Health, Education and Welfare, 1966: "It appears that variations in the facilities and curricula of the schools account for relatively little variation in pupil achievement insofar as this is measured by standard tests.... A pupil's achievement is strongly related to the educational backgrounds and aspirations of the other students in the school...." _

19 Lemon v. Kurtzman, 310 F. Supp. 35 (E. D. Pa. 1969), prob.juris.noted, 90 S. Ct. 1354 (1970).

20 DiCenso v. Robmson, 316 F. Supp. (D.R.I. 1970), prob.juris.noted, 39 U.S.L.W. 3194, Nov. 10,1970.

21 Ever son v. Board of Education of the Township of Ewing, 330 U.S. 1 (1947). See also, Quick Bear v. Leupp, 210 U.S. 50 (1907), a case upholding public funding of parochial schook attended by Indians.

22 Board of Education of Central District No. 1 v. Alien, 392 U.S. 236 (1968).

23 Walz v. Tax Commission of the City of New York, 90 S. Ct. 1409 (1970).

24 Ibid.

25 Ibid.

26 Ibid.

27 Pa. Star. Ann. Tit. 24, 5601-09 (1968).

28 DiCenso v. Robinson, op. cit.; Johnson v. Sanders, Civ. No. 13432 (D. Conn. Oct. 15, 1970).

29 See, Coleman, op. cit.

30 Sherbert v. Verner, 374 U.S. 398 (1963).

31 Ibid.

32 Pennsylvania Office of Aid to Nonpublic Schools, An Analysis of Significant Data (1969).

33 72 Stat. 1177 (1958), 38 U.S.C. 1620. Approximately 36,000 veterans used the G. I. Bill to pay for training as Protestant ministers.

34 Abington School District v. Schempp, 372 U.S. at 242 (concurring opinion).

35 For an example of more restrictive state provisions, see, New York Constitution, Art. 11, 3 (known as the Blaine Amendment): "Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid of maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning." But the textbook program upheld in Alien was also upheld against this provision of the New York State Constitution. For discussion of the theory that just as the free exercise clause may limit the application of the establishment clause, now that it had been applied to the states, so it may also limit state constitutional provisions which are more restrictive of free exercise rights, see, A.M. Bickel. The Supreme Court and the Idea of Progress. New York: Harper & Row, 1970; Drinan, "Public Aid to Parochial Schools," 15 Case and Comment 13 (1970). Cf. Mulkey v. Reitman, 387 U.S. 369 (1967).

36 Board of Education of Central District No. 1 v. Alien, op. cit.

37 For a detailed history of state regulatory statutes, see, Elson, "State Regulation of Non-public Schools: The Legal Fraamework" in Donald Erickson. Public Controls for Non-Public Schools. Chicago: University of Chicago Press, 1969.

38 Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).

39 Meyer v. Nebraska, 262 U.S. 390,400 (1923).

40 Farrington v. Tokushige, 273 U.S. 284 (1927).

Cite This Article as: Teachers College Record Volume 72 Number 3, 1971, p. 389-404
https://www.tcrecord.org ID Number: 1686, Date Accessed: 10/28/2021 3:42:18 AM

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  • Walter McCann
    Harvard University
    Walter McCann is chairman of the program in educational administration and associate professor of education, Harvard University
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