A few years ago the school voucher movement appeared to be heading toward demise.
With rare exceptions, the courts looked unfavorably on government plans that paid for tuition at religious and other private schools. The few programs that were operating did so under a cloud of constitutional uncertainty. Numerous federal and state courts had invalidated voucher schemes on First Amendment grounds, citing the principle of separation of church and state.
In addition, voters in a raft of states, including California, Michigan, Colorado, Oregon and Washington, had turned away initiatives to implement voucher proposals, usually decisively. In Michigan and California, voters in the 2000 general election rejected voucher initiatives overwhelmingly, with 71 percent of Californians and 69 percent of Michiganders just saying "no."
That scenario changed overnight with the Supreme Court's 2002 summer ruling in Zelman v. Simmons-Harris that upheld an Ohio voucher law. The justices' 5-4 decision re-ignited a well-funded pro-voucher drive in the states and Congress. A select group of wealthy right-wing foundations and individuals is ratcheting up its financial support of the political and religious organizations that have been leading the voucher movement for many years.
The president and the Republican-controlled Congress, moreover, are likely to push "educational choice" legislation including voucher schemes. In fact, shortly after the Zelman decision, Bush went before an adoring crowd in Cleveland, the city where the Ohio voucher program got its start, to laud the Supreme Court for handing down a decision "just as historic" as Brown v. Board of Education, the landmark 1954 ruling that outlawed segregation in the public schools. Bush also declared Ohio's voucher law a "constructive approach to improving public education," The New York Times reported.
With the national scene dramatically changed, advocates of public education and church-state separation are gearing up for major battles.
" Just as we suspected, the high court's deplorable ruling on vouchers has breathed new life into the pro-voucher movement," said Barry W. Lynn, executive director of Americans United for Separation of Church and State. "We expect to find this a very challenging year."
Lynn said voucher advocates will be waging their campaign on several fronts the state courts, the state legislatures and Congress.
Proponents of tax aid to religious schools must still overcome legal hurdles before they see their movement flourish in the states. The Zelman case dealt only with the question of whether the Ohio voucher law violated the U.S. Constitution's First Amendment, which mandates church-state separation. States also have their own constitutions, and the vast majority of them include "no establishment" clauses, which are much stricter in barring public funding of religious institutions than the federal Constitution.
In fact, a Florida judge in August invalidated the nation's only statewide voucher program because it "ran afoul" of the state constitution's provision that forbids tax dollars from flowing to religious institutions. Section 3 states, in part, that "No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution."
The Institute for Justice (IJ), a Washington, D.C.-based libertarian organization, is leading the charge to invalidate the no-establishment clauses found in state constitutions, according to a Boston Globe article from July. IJ's website, www.ij.org, indeed describes its strategy and denounces the states' no-establishment provisions as "remnants of anti-Catholic and anti-immigrant hysteria in the late 1800s."
" So the Institute for Justice is taking the battle for parental liberty to the states, launching a wave of lawsuits challenging the discriminatory state constitutional provisions," IJ declares on its website. "Our goal is to clear the way for effective school choice programs with the goal of securing a national precedent in the U.S. Supreme Court."
IJ has already lodged suits against Maine and Washington, with the promise of "additional challenges to come." The Globe article noted that the constitutions of Massachusetts and Vermont are also facing challenges from "conservative and sectarian legal foundations."
IJ's claim that the states' constitutional no-establishment clauses emanate from anti-Catholic bigotry of the 19th century revises history. Some, but not all, strict no-establishment clauses in state constitutions may be traced to the Protestant-Catholic divisions of the 19th century. In 1875, Maine congressman James G. Blaine proposed an amendment to the U.S. Constitution barring states from diverting public funds to religious institutions, including schools. Some who supported Blaine were motivated by animus toward Catholics. While Congress rejected Blaine's amendment, most states have adopted constitutional provisions prohibiting state funding of sectarian institutions and schools.
Many states had created the strict no-establishment clause provisions long before Blaine introduced his amendment to Congress. As AU's Lynn maintains, many of those provisions were influenced by Thomas Jefferson's advocacy of a "wall" separating church and state. Charles Haynes, the Freedom Forum's senior scholar, agreed with Lynn, telling Church & State that "contemporary efforts to maintain strict separation are no longer rooted in the nativist movements of the 19th and early 20th centuries." In 1875, the same year Blaine introduced his amendment, President Ulysses S. Grant reaffirmed the Jeffersonian principle of church and state separation when he said, "Leave the matter of religion to the family altar, the church, and the private school supported entirely by private contributions."
So who or what, besides a positive Supreme Court decision in Zelman and the backing of the president and Congress, is fueling the drive for vouchers in the states and on the federal level?
The impetus comes largely from a group of foundations and individuals that has funded the organizations both state and federal that litigate and lobby on behalf of voucher programs. These players come from different ideological perspectives, but their goal is the same undercut the public school system and move toward a plethora of tax-funded private schools. For example, the Family Research Council, a Washington, D.C.-based Religious Right group, wants more children attending religious schools because of the organization's evangelical Christian identity. In contrast, the Institute for Justice and the Cato Institute, which hold libertarian philosophies, support vouchers to bring a free-market type of competition to education.
Samantha Smoot, director of the Texas Freedom Network, warns that the voucher crusade is composed of powerful and extreme groups and individuals. Her comments before an anti-voucher gathering in San Antonio, Texas, in late 1999 provide a nutshell description of the forces advocating vouchers nationwide.
" The voucher lobby has become very clever about disguising and shielding this agenda," Smoot said in the speech. "We have a very unholy alliance of religious political extremists who would like everyone to be taught the Bible in school, and they've linked up forces with some dangerous partners free-market thinkers and wealthy individuals who stand to make untold amounts of money off privatizing our public schools. This is a dangerous combination."
The voices and lobbyists for voucher proposals in Texas, as well as all the other states, are the tools of a gaggle of wealthy investors.
The Lynde and Harry Bradley Foundation, based in Milwaukee, Wisc., was founded to commemorate the brothers by "preserving and defending the tradition of free enterprise and defending the tradition of free representative government and private enterprise," the Foundation's website states. That survival-of-the-fittest philosophy undergirds the Foundation's mission to fund as many pro-voucher groups as possible. The Foundation came to the defense of Milwaukee's voucher program, giving the state of Wisconsin $350,000 to help pay for the legal defense of the scheme. The Foundation continues to provide grants to the numerous non-profits working to divert public funds to private schools, including the Becket Fund for Religious Liberty, the Center for Education Reform, the Heritage Foundation, the American Enterprise Institute, the Evergreen Freedom Foundation, the Free Congress Foundation and the Heartland Institute, a Chicago-based libertarian think tank.
Joining the Bradley Foundation in showering money on pro-voucher groups is the Friedman Foundation, an organization created in the late '90s by free-market economist Milton Friedman and his wife Rose.
" What is needed in America is a voucher of substantial size available to all students, and free of excessive regulations," Friedman is quoted on the Foundation's website.
The Friedman Foundation has channeled large sums of money to campaigns promoting vouchers in numerous states, such as California, Florida, Michigan and New Mexico. The Foundation has also subsidized the efforts of the recently formed Black Alliance for Educational Options (BAEO), a group launched in 2000 to build support for vouchers among African-Americans.
Friedman, who calls the Institute for Justice "a close partner," revealed his laissez-faire hopes for the American education system when in 1995 he wrote that "the privatization of schooling would produce a new, highly active and profitable private industry."
The Walton Family Foundation and Wal-Mart heir John Walton are also enthusiastic promoters of the pro-voucher charge. Funding some of the same pro-voucher think tanks as the Bradley and Friedman foundations, Walton has also personally bankrolled voucher initiatives in California, Michigan and Minnesota. In 2001, the Arkansas-based foundation granted more than $49 million to pro-voucher groups, including the Center for Education Reform, the Children's Educational Opportunity Foundation, the Friedman Foundation and Florida's School Choice Fund.
All of this big-bucks backing is bearing fruit. Americans United research shows that at least 24 states could consider voucher legislation this year. (See list, page 7). Moreover, Congress already has a voucher proposal before it, and the president's "No Child Left Behind" Act, which initially included a provision to allow students in "failing schools" to receive vouchers for private schools, might be revisited with the intent of adding the voucher provision that the president campaigned on in the 2000 general election. Sen. Judd Gregg (R-N.H) has re-introduced a bill that would allow the nation's 6.5 million special-education students to attend religious schools with federally funded vouchers.
AU's research, as well as media reports, point to hot voucher debates in New Hampshire, South Carolina, Georgia, Louisiana, Texas and Colorado. A late November article from the Boston Globe noted that during the midterm elections, those states voted for governors and state lawmakers who campaigned on vouchers. Along with voucher legislation, many of the same states will also consider tax credit laws for individuals and corporations, which typically provide incentives for wealthy Americans to subsidize religious and other private schools. Though tax credits may sound less threatening than vouchers, they wind up accomplishing the same goal of supporting religious schools with taxes.
" We're seeing a positive momentum, post-Zelman," Robert C. Enlow, a vice president of the Friedman Foundation, told the Globe in late December. "There is a lot of action on the legal front and more opportunities for school choice legislatively."
Texas is one of those states where the opportunity for voucher promotion looks better than it has in more than a decade. For the first time in 131 years, Republicans will control the Texas House. Moreover, Texas Gov. Rick Perry and both leaders of the state Senate and House are on record supporting vouchers, according to the Heartland Institute's January 2003 "School Choice Roundup," which can be obtained from the group's website.
San Antonio physician James Leininger will also continue funneling money to the pro-voucher efforts in Texas. A Texas Monthly report from November referred to Leininger as one of the state's "most active political donors." Leininger founded the Texas Public Policy Foundation, a right-wing think tank, and has invested "millions in private school voucher programs in San Antonio," the magazine noted.
Following the Supreme Court's Zelman decision, Jeff Judson, president of Leininger's Texas Public Policy Foundation, told Ty Meighan, a columnist for the Corpus Christi Caller-Times, that, "State leaders must now allow Texas parents to exercise their constitutional rights by passing a school choice bill."
Some Texas commentators and lawmakers, however, cite a serious budget problem as an obstacle to a state voucher program.
State Sen. Bill Ratliff, a Republican and also a voucher supporter, told The Dallas Morning News in mid-January that budget problems would dominate the legislature's session. According to Ratliff, the fiscal crunch will influence and overwhelm all agendas that need money, including vouchers. The newspaper cited lawmakers as saying the state budget could see a "$10 billion shortfall."
As in Texas, political developments in Colorado make vouchers a likely topic of debate.
In early January, the Denver Post noted that Republican Gov. Bill Owens is a "staunch supporter" of vouchers and that "at least five" voucher bills could be introduced during the session. State Rep. Nancy Spence has already announced her intention to introduce a measure that would allow poor students in troubled public schools to attend religious schools. Also according to the Post, a bill will be introduced that would provide every student in Colorado with a voucher for religious schools as well as tuition tax credits for parents sending their children to private schools. The Colorado chapter of the libertarian-leaning Greater Educational Opportunities Foundation is joining the state legislators in calling for a voucher law.
The New Hampshire Statehouse is also likely to be the center of a voucher debate.
Republican businessman Craig Benson campaigned on the promise of implementing a voucher law and is now the state's governor. Also, State Rep. Thomas I. Arnold has introduced a bill proposing to dump the strict no-establishment language found in the New Hampshire Constitution. Article 6 declares that "no person shall ever be compelled to pay towards the support of the schools of any sect or denominations." Article 83 of the second part of the state's constitution provides that "no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination." Arnold's bill proposes yanking both clauses from the constitution. The House Education Committee has scheduled a vote on the bill for March 20.
New Hampshire, however, is faced with a growing budget deficit, which could undermine the success of Benson's pledge to institute a voucher plan in the state.
Top lawmakers in South Carolina and Louisiana are also working to pass voucher legislation.
South Carolina Gov. Mark Sanford campaigned on using tax dollars to pay as much as $3,500 in religious school tuition for students who attend poorly performing public schools. Like Texas, this is the first time in modern political history that Republicans control both houses of the South Carolina General Assembly and the governor's office. But also like Texas, South Carolina is facing a "continuing budget crisis" according to the Columbia daily newspaper, The State. A Jan. 12 article from The State notes that "most Democrats" oppose Sanford's voucher proposal and predicts that the plan's success is "a long shot."
In Louisiana, the New Orleans Times-Picayune reported on Jan. 13 that State Senate President John Hainkel along with "several legislators" are drafting voucher bills. Hainkel told the newspaper that he was "willing to try anything at this point" to repair what he describes as a failing public school system. Democrats in the Louisiana Senate and House told the newspaper they would fight the proposals, fearing they would lead to state abandonment of the public schools.
Americans United's Lynn says all of these developments add up to a critical moment for church-state separationists.
"The pro-voucher campaign is extremely well funded and working overtime to lobby state lawmakers nationwide to implement plans that would drain money from public schools and bolster religious education," Lynn said. "The defenders of church-state separation must work equally hard to protect the American way of life."
Jeremy Leaming is communications associate with Americans United for Separation of Church and State.