Must Voucher Programs Include Religious Schools?

That's the question that several Maine families and the Institute for Justice have put before the U.S. Supreme Court.

Maine has had a voucher-like "tuitioning" program for well over a century. During most of that period, it allowed participating famillies to choose either a secular or religious school. Then, in 1980, the state decided it had been acting unconstitutionally. Maine's Attorney general told the legislature that its tuitioning program violated the First Amendment's proscription against establishing religion. Quick to obey, the legislature passed a law ending the right of voucher-receiving parents to choose religious schools.

A number of court cases have since tried to undo the legislature's actions. These efforts gained momentum in 2002, when the U.S. Supreme Court ruled in Zelman v. Simmons-Harris that voucher programs do NOT violate the First Amendment's establishment clause.

From that point on, it clearly has been legal for Maine to once again allow the participation of religious schools, but the state has elected not to do so. A group of Maine parents have thus joined with the Institute for Justice this week and petitioned the U.S. Supreme Court to force the state to permit religious schools to participate.

Their legal argument is that, if a state operates a voucher program, the equal protection and free exercise clauses require it to treat religious and non-religious schools equally, allowing parents to choose either.

That argument has merit. It is discriminatory to exclude religious schools simply because of their religiosity.

But the plaintiff's solution is not without problems of its own.

If they are successful, parents who object to funding religious schools will nevertheless be compelled to do so. While this sort of compulsion has not been ruled to constitute a federally unconstitutional infringement of taxpayers' rights, it is nevertheless a bad idea. Compulsion to fund instruction that some taxpayers find objectionable is a recipe for social conflict -- a conflict that can currently be seen in the Netherlands over the funding of some conservative Islamic voucher schools.

Fortunately, there is an alternative: The use of education tax credits instead of vouchers to ensure universal access to the public or private schools of parents' choice. These programs can avoid virtually all of the compulsion that makes public schools a social battleground, and that remains a concern under government voucher programs. See the link above for a short explanation of the tax credit advantage, or this paper for a more substantial one.

Furthermore, even if the parents' suit prevails, it does not mean that all will be rosy for state-level school voucher programs. All but three states (and Maine is one of those three) have their own constitutional provisions against government funding going to religious institutions. If the U.S. Supreme Court forces all voucher programs to include religious schools, some states may be obliged by their state constitutions to shut down or forego voucher programs rather than allow them to operate with the participation of religious schools.

This, in other words, is a messy, and unnecessary, road to travel. There is a better option: education tax credits.