Lawmakers in Texas, New York push voucher plans

Wednesday, March 10, 1999

Politicians in Texas and New York are urging the enactment of voucher programs for some of their states' largest school districts despite objections from civil libertarians who say the programs violate the separation of church and state.

Vouchers provide government funds for parents to send their children to private schools, including religious ones. Such programs have been challenged, and in 1973, the U.S. Supreme Court struck down a New York state program that gave tuition reimbursements to poor parents whose children attended private schools, the vast majority of which were sectarian.

Last year, however, the Wisconsin Supreme Court in Jackson v. Benson upheld a Milwaukee voucher program.

The court ruled that government funding of sectarian education does not subvert the Wisconsin Constitution's prohibition against public funding of religious institutions or the First Amendment's establishment clause. In a wordy and often redundant opinion, the court concluded that Milwaukee's voucher program was a neutral educational assistance program that did not amount to government advancement of religious education.

Since the Wisconsin decision, voucher proposals and similar measures, such as tax breaks for parents who send their kids to private schools, have gained momentum in state and city governments throughout the nation. Two weeks ago the Florida Legislature started debating a voucher proposal supported by Jeb Bush, the state's newly elected Republican governor.

New York City Mayor Rudolph Giuliani and Texas Republican lawmakers have recently joined the call for vouchers.

In mid-January, Giuliani proposed a voucher plan for some New York City schools. Giuliani said the Milwaukee program had inspired him and that his plan would mirror it. The New York Times has reported that in 1995, the Republican mayor told a teachers union that vouchers would be “a terrible mistake.”

In the last few weeks Giuliani has worked to convince the New York City Board of Education to adopt a $12 million plan to provide poor students in one city school district with vouchers to attend private schools, including religious ones.

Giuliani has defended his desire to implement vouchers against complaints voiced by the New York Civil Liberties Union and city Schools Chancellor Rudy Crew as a way to force the city's over-crowded, poorly operating schools to improve. “The children are not in any way required to take religious education,” Giuliani said in January. “People who oppose it will find all kinds of reasons why it isn't working. It makes a lot of sense though, doesn't it? To create that kind of competition.”

Late last week a state senator in the Texas Legislature, with the support of Gov. George W. Bush, introduced a voucher plan for several of the state's urban counties.

State Sen. Teel Bivins introduced a Public Education Scholarship Program that would provide tax dollars to parents of low-income students in Dallas and other urban school districts.

“My record as a senator is clear evidence of my support of public education,” Bivins said in a prepared statement. “Yet I believe we owe it to the school children of Texas to continue to try new approaches to education. Senate Bill 10, which establishes a limited voucher program, will allow us to effectively compare a variety of approaches.”

People for the American Way, a national civil rights organization, has vowed to fight the proposals in New York City and Texas. Elliot Mincberg, legal director and executive vice president of the group, says the Milwaukee model is flawed and does not provide evidence that K-12 education is improved.

“There has been no evidence produced in Milwaukee that supports the argument that these programs produce a better education for students,” Mincberg said. “There has, however, been evidence that voucher schools in Milwaukee have been violating state law requiring random selection of students and instead choosing the students they want.”

Mincberg says that the law on vouchers still is controlled by the U.S. Supreme Court's 1973 decision in Committee for Public Education v. Nyquist, not by the Wisconsin high court's ruling.

“The law of the land remains the same outside of Wisconsin; Nyquist still controls in 49 out of 50 states,” Mincberg said. “But those states and municipalities that choose to rely on the Wisconsin decision for voucher programs will clearly have constitutional challenges awaiting them. Our group will be ready and able to challenge voucher programs on behalf of citizens who see them as a violation of the separation of church and state.”

Justice Lewis Powell, writing for the majority in Nyquist, concluded that portions of the New York voucher plan ran afoul of the First Amendment “because their effect, inevitably, is to subsidize and advance the religious mission of sectarian schools.”