• by Albert Cortez, Ph.D. • IDRA Newsletter • June- July 1999

Dr. Albert CortezEditor’s Note: The following is an excerpt from “Students for Sale – The Use of Public Money for Private Schooling” (with updated information about litigation in Ohio and Maine) published by the IDRA Institute for Policy and Leadership in May.

Those who oppose or have reservations about vouchers have expressed many concerns, including the numerous legal aspects of the issue. In states where legislatures have adopted voucher plans, individuals and groups have filed suits challenging the legality of those initiatives. To date there have been suits filed in Arizona, Georgia, Maine, Ohio, Vermont and Wisconsin. State courts in Wisconsin and Ohio have issued two distinct and apparently contradictory decisions. Additional litigation is pending, and it is anticipated that the issue will ultimately be decided by the U.S. Supreme Court.

The legal questions are complex and difficult. While a body of case law related to use of public monies to fund education in private settings is emerging, some voucher proponents claim that there has been no truly precedent-setting decision that can be used to guide state or national legal deliberations on the question.

Yet in the 1971 Lemmon vs. Kurtzman case, the US Supreme Court concluded that federal money could be used to provide educational services to students enrolled in private and sectarian schools. The case is considered a landmark case in its departure from earlier rulings forbidding the use of federal tax revenues to support educational services provided in private and religious school settings. While allowing some public funding for services provided to private schools, the case established three criteria that are seen as the litmus test by which related measures are judged (NCPE, 1997). The Supreme Court’s three criteria include:

  • does the legislative action have a secular purpose?
  • does its primary effect neither advance nor inhibit religion?
  • does the action create excessive entanglements between government and religion?

The National Coalition for Public Education (NCPE) comments:

Although the Supreme Court has yet to rule on vouchers per se… in a similar case (Committee for Public Education and Religious Liberty vs. Nyquist, 1973) the high court held that grants and tax benefits (supporting attendance at private religious schools) had the unlawful effects of advancing religion because the aid unavoidably would be used to fund sectarian activities, even though the financial benefits flowed through the parents (NCPE, 1997).

According to NCPE, “Voucher advocates inaccurately claim that several Supreme Court decisions support the constitutionality of vouchers,” including Mueller vs. Allen in which the court ruled that granting state tax deductions for tuition, materials and transportation expenses was acceptable. The NCPE points out that Mueller involved benefits that were available to public and private school students and that only an “unattenuated financial benefit flowed to parochial schools” (NCPE, 1997).

In the Wisconsin case, MTEA vs. Benson, the Wisconsin State Supreme Court overturned the Appeals Court decision on a 4-2 vote and concluded that the Wisconsin voucher program met all three criteria of the Lemmon case and thus did not violate state or federal provisions related to the separation of church and state. As a result, the program will be expanded from 1,500 pupils attending private nonsectarian schools to include 15,000 low-income pupils who may enroll in private and religiously affiliated institutions (PFAW, 1999).

Concerns with private school compliance in the Milwaukee voucher program recently surfaced. The NAACP has filed new litigation charging that many Milwaukee private schools that receive voucher funding have violated the random selection requirements by continuing to use screening criteria. Such possible violations include providing preferences for siblings of former private school pupils and parishioners and giving some families advantages over public school candidates.

The Ohio state courts thus far have taken the opposite view from the Wisconsin courts. In Simmons-Harris vs. Goff, the Court of Appeals issued a ruling striking down the Cleveland voucher program on the contention that it violated the constitutional provision relating to the separation of church and state. The State Supreme Court allowed the program to continue to operate until it reviewed and ruled on the case (Boyer, 1997). In May 1999, the Ohio State Supreme Court ruled that the program does not violate the separation of church and state provisions of the state constitution but that it does violate the provisions prohibiting the use of public funds for private schools.

In Arizona, litigation was filed in Kotterman vs. Killian challenging the constitutionality of the private school voucher tax credit law. Arguments have been presented at the state court level, and a decision is pending (PFAW, 1999).

In Pennsylvania, a case is challenging a local school district’s decision to provide public school funding for students to attend local private schools. In Giacomucci et al. vs. Delco School District, plaintiffs are arguing that the action violates state and federal constitutional provisions (PFAW, 1999).

In Vermont and Maine, voucher proponents challenged rulings that limit use of state-funded vouchers to nonreligious public schools. In those two states, voucher programs have been in place that provide vouchers to rural residents to help subsidize attendance at private sectarian schools. Religious school officials, unhappy with that exclusion, filed litigation attempting to force state officials to expand eligibility. In May and June, courts in both states ruled that a tuition program may not be expanded to include religious schools. The Vermont decision was based on a church-state provision in the state constitution, while the Maine decisions were based on the First Amendment of the US Constitution.

Though many cases on recent voucher programs are still making their way through the courts, the various decisions suggest that voucher programs must be carefully crafted to withstand legal scrutiny.


Boyer, D. “Voucher Opponents Urge N.J. to Halt Local Choice Plan,” Education Daily (Alexandria, Virginia: February 14, 1997).

National Coalition for Public Education. “Constitutional Issues in the Voucher Debate,” fact sheet (Washington, D.C.: National Coalition for Public Education, 1997).

People for the American Way Foundation. “In the Courts,” Internet posting (Washington, DC: People for the American Way Foundation, 1999) .

Albert Cortez, Ph.D., is the director of the IDRA Institute for Policy and Leadership. Comments and questions may be directed to him via e-mail at feedback@idra.org.

For a copy of “Students for Sale – The Use of Public Money for Private Schooling” ($7), contact IDRA at 210/444-1710 or view the policy brief and related tables online at http://www.idra.org/research_articles/education-policy-briefs/ (free).

[©1999, IDRA. This article originally appeared in the June-July 1999 IDRA Newsletter by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]