Note to the ACLU: U.S. Supreme Court has ruled that vouchers are constitutional

Victor Joecks

This morning I was listening to KUNR’s “Beyond the Headlines” program. Host Brandon Rittiman interviewed Gov. Sandoval’s senior policy adviser, Dale Erquiaga, on Sandoval’s education reforms, including vouchers. He then had on Craig Hulse, from the Washoe County School District, and Allen Lichtenstein, from the ACLU, to respond.

One of the first objections Lichtenstein made to the voucher program was that it would be unconstitutional under the U.S. Constitution, because it would give public money to private schools. That assertion is wrong.

The U.S. Supreme Court ruled in Zelman v. Simmons-Harris (2002) that a well-designed voucher program that gives public money to private, religious schools is constitutional.

Ohio’s Pilot Project Scholarship Program gives educational choices to families in any Ohio school district that is under state control pursuant to a federal-court order. The program provides tuition aid for certain students in the Cleveland City School District, the only covered district, to attend participating public or private schools of their parent’s choosing and tutorial aid for students who choose to remain enrolled in public school. Both religious and nonreligious schools in the district may participate, as may public schools in adjacent school districts. …

Held: The program does not offend the Establishment Clause. Pp. 6-21.

(a) Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U.S. 203, 222-223. This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U.S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits. Pp. 6-11.

(b) The instant program is one of true private choice, consistent with the Mueller line of cases, and thus constitutional. It is neutral in all respects towards religion, and is part of Ohio’s general and multifaceted undertaking to provide educational opportunities to children in a failed school district.

While I’ll refrain from making a joke about the ACLU’s general counsel not being familiar with a major U.S. Supreme Court case on vouchers, the record does need to be clear and corrected.

A well-designed voucher program is constitutional under the U.S. Constitution.

Whether a voucher program is constitutional under the Nevada Constitution is a separate issue (I’d argue it is constitutional) and, at the moment, an irrelevant one, because Sandoval’s voucher program would be passed as a constitutional amendment.