SCOTUS Rebuffs Maine School Voucher Case

This morning, the U.S. Supreme Court declined to hear a case seeking to overturn the exclusion of religious schools from Maine’s school voucher (a.k.a., “tuitioning”) program.

Maine’s tuitioning program was created in 1873, and until 1980 it allowed families whose towns did not operate their own public high schools to choose any public or private school, using funds allocated for their education by the local taxing authority.

In 1980, then-Attoney General Joseph Brennan (D), ruled that the inclusion of religious schools violated the First Amendment of the federal Constitution, and religious schools were subsequently expelled from the program. That prohibition has persisted to this day, even in the wake of the 2002 U.S. Supreme Court ruling, Zelman v. Simmons-Harris, that found vouchers for religious schools to be constitutional.

The case was filed by 8 families whose children are not eligible for tuition assistance solely because their children attend religious schools. They were represented by the Institute for Justice which would have argued that the exclusion of religious schools was itself an unconstitutional act of discrimination against religion by the state.

There is certainly something to be said for this argument. Under the federal constitution, as interpreted by the Supreme Court, governments must strive to remain neutral with respect to religion, and clearly parents who chose religious schooling in this case are being denied an opportunity afforded to all other parents. That is not neutrality.

The proscription against religious schools is not only legally dubious, but socially divisive, as well. Parents who wish to send their children to religious schools are taxed to pay for services they cannot themselves use – a recipe for social tension. There is, however, a school choice system capable of ensuring that all families have an unfettered choice of schools for their children without anyone being forced to pay for schooling to which they object: the education tax credit.

By offering personal use tax credits (essentially targeted tax cuts) to parents who pay for their own children’s education, as well as tax credits for donations to private scholarship organizations (that in turn subsidize education for low income families) a system of private funding could be created that would ensure universal school choice without compelling anyone to fund schooling to which they objected.

Such a system would achieve the goals of public education far more ably than our current system of state-run schooling, while avoiding most of the legal problems that beset government-funded voucher programs.

Why would anyone oppose such a system, except perhaps because they wish to make it artificially difficult for families to obtain religious schooling, or because they wish to protect the lucrative monopoly for the public school employee unions?