Zelman v. Simmons-Harris, 536 U.S. 639 (2002), was a case decided by the United States Supreme Court which tested the allowance of school vouchers in relation to the establishment clause of the First Amendment.
Sound familiar? This Supreme Court case overturned precedent and opened the way for the Louisiana K-12 Scholarship Program .
Under the Private Choice Test developed by the court, for a voucher program to be constitutional it must meet all of the following criteria:
- the program must have a valid secular purpose,
- aid must go to parents and not to the schools,
- a broad class of beneficiaries must be covered,
- the program must be neutral with respect to religion, and
- there must be adequate nonreligious options.
The court ruled that the Ohio program met the five-part test in that 1) the valid secular purpose of the program was “providing educational assistance to poor children in a demonstrably failing public school system”, 2) the vouchers were given to the parents, 3) the “broad class” was all students enrolled in currently failing programs, 4) parents who received vouchers were not required to enroll in a religious-based school, and 5) there were other public schools in adjoining districts, as well as non-sectarian private schools in the Cleveland area, available that would accept vouchers.
Let’s take these 5 requirements in turn for the Lousiana program:
1) Does the Louisiana voucher program have a valid secular purpose? As in the Zelman case, yes – the purpose is to improve the education of children in poorly-rated public schools.
2) Are the vouchers were given to the parents, not the schools? I’m not sure about this one. According to the Louisiana program website, “Funds will be paid directly to the school on behalf of the student.” However, this probably passes the test because in theory, if not in practice, it is a parent’s choice where to enroll a student.
3) Is a broad class of beneficiaries covered? Participation is subject to school attendance (only a student attending a poorly-rated school – a school given a C, D, or F grade by the state – qualifies for a state/local voucher), and to income limitations.
4) Is the program neutral to religion? Both non-sectarian, parochial, and other faith-based private schools are eligible to offer voucher seats and accept money from the state.
We’re on a roll! It’s all good, right?
5) Are there adequate nonreligious options?
Oops. So close!
I believe the Louisiana program fails the last test. Certainly in the real Louisiana we all share.
In the Cleveland, Ohio case decided by the Supreme Court, Rehnquist writing for the majority relied heavily on the availability of non-sectarian options, including Cleveland “community” (i.e., charter) schools and public magnet schools:
Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school. The Establishment Clause question whether Ohio is coercing parents into sending their children to religious schools must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a scholarship and then choose a religious school.
So what are the non-sectarian options in Louisiana? Looking at the listing of seats available, linked from the Louisiana program website:
There are 30 Louisiana parishes that have participating schools. Of these, East Baton Rouge (2 of 17 schools), Jefferson (2 of 13), Orleans (1 of 22), Ouachita (1 of 6), and St. Landry (1 of 2) have schools that are not obviously – from the school name – religiously affiliated offering seats. In 25 parishes with participating schools, then, there is no non-sectarian choice for a voucher school.
Looking more closely at the larger parishes:
- in East Baton Rouge, 158 or 889 seats offered are in non-sectarian schools (and on a related note, 130 of those 158 seats are offered at a school that according to one online database currently has 4 teachers for 52 students).
- In Jefferson Parish, 12 of 402 seats are available in two private schools not explicitly religiously affiliated.
- In Orleans Parish, 15 of 936 seats are potentially available in non-sectarian schools (and that’s not definitely a non-religious school).
So, does our plan pass the test outlined by the court in the Cleveland case?
A low-income parent with a child at a poorly-rated public school in most Louisiana parishes has at most two choices: stay in the questionable public school system, or try for the voucher money and a chance to attend a religious school, even if you do not believe in the religious education that the voucher is paying for.
As it currently stands, no. The state does not offer the level of non-sectarian options that the court could rely on in Zelman: for example, even if more successful public school choose to participate, and most public schools – required by law to offer more services than private schools need to – don’t have space or resources available even at a level funding. The state plan offers no additional money that a student can bring to another public school, as in the Cleveland plan.
In theory, I suppose, a new chain of secular-humanist private schools could spring up to offer a better education to a student attending a “failing” public school. That might solve this particular issue I have with the voucher program and its constitutionality. However, the Constitution needs to be interpreted in light of the world we have, not the world we wished we had.
If the program had been designed less as an attack on the very idea of public education, and more as a carefully-considered way to offer a way up for some of our poorer students, it might not be making such a joke of Louisiana’s state educational system.