September 1, 2011 2:15PM

Vouchers ARE Government Money, and That’s the Problem

The recent decision of a Colorado court to halt a first-of-its-kind voucher system instituted by a local school district has, not surprisingly, been subjected to widespread criticism from school choice supporters.

The Heritage Foundation’s Rachel Sheffield, for instance, argues “The judge’s decision is the result of a lawsuit brought by the American Civil Liberties Union that claims that the program violates the law by providing public money to religious organizations. . . . In typical statist fashion, these claims are born from a philosophy that holds that the money you earn is in fact not yours to keep but instead belongs to the state.”

The problem with this argument, and with vouchers generally, is that voucher money DOES belong to the state. The recent U.S. Supreme Court ruling in Arizona Christian School Tuition Organization v. Winn that Rachel cites here concerned an education tax credit program in Arizona, not a voucher program.

Vouchers are grants of government funds, while tax credits are private funds. The court held that money spent and claimed as a credit, which is never collected in taxes in the first place, remains private money, not government spending like school vouchers. Other taxpayers can’t be harmed by the choices of those claiming credits because each taxpayer gets to decide, individually, what happens to their own money.

Under vouchers, as Justice Kennedy explained, "a dissenter whose tax dollars are 'extracted and spent' knows that he has in some small measure been made to contribute to an establishment in violation of conscience. ... [By contrast,] awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences."

The challenge to the AZ education tax credit program failed because only private funds are involved. A taxpayer challenging a voucher program would have standing under this decision.

State constitutions typically include provisions that are much more restrictive of how state funds can be used in education and which pose much greater threats to voucher programs. Colorado’s court ruling, for instance, identified five separate legal problems with the Douglas County voucher program.

Part of the reason Colorado’s program was stopped in its tracks is a state constitutional provision that reads: “No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.”

There is certainly room for a different interpretation of this provision, but ruling that vouchers are in violation of it constitutes neither judicial activism nor statist thinking. Indeed, it could be argued that this is the more conservative, originalist interpretation.

There is simply no way around the fact that vouchers are government funds, subject to whatever constitutional and statutory restrictions a state may place on their use. In the case of education, these restrictions are many and serious.

The most recent and bracing conclusion comes, again, from Arizona. In 2009, the Arizona Supreme Court ruled in Caine v. Horne that voucher programs for disabled and foster children violated a state constitutional ban on aid to private schools because it was an expenditure of government funds. That same court previously upheld a state tax credit program on the grounds that the credits did not constitute an expenditure of government funds. The status of vouchers as government funds was key to the decisions overturning Colorado's earlier voucher program in 2004 and Florida's in 2006.

Unlike vouchers, education tax credit programs have withstood every state and federal challenge advanced against them over the past two decades. Major credit programs in Indiana, Florida, Georgia and Pennsylvania – to name a few – have yet to be challenged. And for good reason; they are on solid constitutional ground at both the state and federal level.

Using state money to fund private school choice with vouchers opens a world of serious and legitimate risks to which education tax credits are not vulnerable.