ACLU misleads legislators, public on constitutionality of vouchers

Victor Joecks

I can’t figure out if the Nevada ACLU is being dishonest here or is just ignorant of a recent Supreme Court ruling allowing vouchers to be used for religious schools. Either way, it’s shameful and – assuming the ACLU has the necessary intellectual honesty – embarrassing for it to be misleading lawmakers and the public like this.

Here’s what Allen Lichtenstein, general counsel with the Nevada ACLU, said about Sen. Michael Roberson’s recent proposal to amend the Nevada Constitution and allow parents to use education vouchers at religious schools:

More pointedly, a longtime ACLU attorney said a voucher program that catered to faith-based schools would violate the First Amendment of the U.S. Constitution. …

Allen Lichtenstein, lead attorney for the American Civil Liberties Union of Nevada, said the Establishment Clause in the First Amendment would be violated. The clause says “Congress shall make no law respecting an establishment of religion.”

Now, this could be debatable, except that the Supreme Court has recently ruled on this issue – whether a voucher program that allows parents to send their child to a religious or secular private school is constitutional under the federal constitution. Here’s what the U.S. Supreme Court said in its 2002 Zelman v. Simmons-Harris decision.

The State of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not. …

The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion. Agostini v. Felton, 521 U. S. 203, 222-223 (1997) (“[W]e continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the `effect’ of advancing or inhibiting religion” (citations omitted)). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden “effect” of advancing or inhibiting religion. …

We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i. e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools.

A summary of the decision is here.

The Supreme Court really couldn’t have put it any more clearly. A voucher program that empowers parents to choose a school for their child (private, religious, online, etc. …) is constitutional under the U.S. Constitution.

The ACLU is factually wrong on the constitutionality of vouchers and should – publicly and on the record – correct its misstatements.

I called the ACLU yesterday for comment, but no one there has returned my call. If I get a response, I’ll post it here.