Voucher supporters bemoan presidential veto

Wednesday, May 27, 1998

The first congressional voucher legislation that would have provided public funds for needy children in the District of Columbia to attend private schools, including religious ones, did not win President Clinton's signature and an override appears unlikely.

In early May, Congress sent to the president the District of Columbia Student Scholarship Act. Backed by Rep. Richard Armey, R-Texas, and Sens. Joseph Lieberman, D-Conn., Sam Brownback, R-Kan., and Dan Coats, R-Ind., the bill would provide about 2,000 D.C. students with up to $3,000 each for K-12 scholarships at private schools in Maryland, Virginia or the District.

Last week, Clinton — not unexpectedly — vetoed the bill saying, “We must strengthen our public schools, not abandon them. Although I appreciate the interest of the Congress in the educational needs of the children in our nation's capital, this bill is fundamentally misguided and a disservice to those children.”

A recent Washington Post poll revealed that most District residents favored the voucher proposal. According to the poll, 56% said they favored using public money to help needy families send their children to private or parochial schools.

One resident told the Post, “The D.C. schools lack everything.” Early this year, the Post published a five-part series examining the failures of the District's schools. Besides detailing the schools' crumbling buildings, the series noted that at least 40% of D.C.'s students drop out or leave the system before graduating.

Civil rights groups, such as People for the American Way and American Civil Liberties Union, however, claim voucher bills such as D.C.'s are constitutionally flawed.

“Should public taxpayer money go to support religious schools?” asked Elliot Mincberg, People for the American Way's legal director. “Our constitution says no.”

Armey derided Clinton's veto as detrimental to D.C.'s needy children: “It says a lot about the character of our president that he would stand in the schoolhouse door and deny D.C.'s most vulnerable children the opportunity to a decent education.”

Richard Diamond, Armey's press secretary, said it appeared Congress did not have the votes to override Clinton's veto.

“We are going to keep trying,” he said. “The veto was a horrible action for the children of D.C. I don't, however, think that right now we have the votes for an override.”

A presidential veto can be overridden only by a two-thirds vote in each house. The slim House vote — 214-206 — appears unlikely to change, Diamond said.

Mincberg said the D.C. voucher proposal's demise would not stop proponents of such plans from working on their implementation.

“I think the movement will continue, unabated,” Mincberg said. “There is already talk that Congress will attempt to tack a voucher plan onto D.C.'s general appropriations bill.”

Diamond confirmed that altering the D.C.'s general appropriations bill to include the voucher plan was an option but that no decision had been made.

Clint Bolick, vice-president and director of litigation at the Institute for Justice, a D.C.-based libertarian law firm involved in numerous voucher cases nationwide, said that attaching the voucher plan to the District's general funds bill makes sense.

“If the federal government is going to provide funding for the District, it seems to me very logical to require the expansion of educational opportunities,” he said.

Mincberg also said that “voucher proponents sincerely believe that recent Supreme Court decisions suggest the court would uphold a voucher plan today.”

Bolick is one of the voucher supporters who believes the Supreme Court is close to upholding a voucher plan. He points to a couple Supreme Court cases as evidence.

“We are very optimistic because at the Supreme Court level, a variety of programs allowing individuals to use public funds in religious institutions have been upheld,” Bolick said. “It is a factual, as well as a legal, overstatement to say that public money under voucher programs goes directly to religious schools. The money does not go to religious schools, unless the parents decide it goes there.”

One case Bolick cites is Mueller v. Allen, in which the Supreme Court in 1983 ruled that a Minnesota law granting a tax deduction for parents to help offset the cost of providing tuition, textbooks and transportation for their children attending private or parochial schools did not violate the First Amendment's establishment clause.

Chief Justice William Rehnquist, in upholding the tax law, noted that Minnesota's “decision to defray the cost of educational expenses incurred by parents — regardless of the type of schools their children attend — evidences a purpose that is both secular and understandable.”

Rehnquist also noted that any financial assistance that would go to religious schools was an individual choice and not one made by the state.

“It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children,” Rehnquist wrote. “It is also true, however, that under Minnesota's arrangement public funds become available only as a result of numerous private choices of individual parents of school-age children.”

Three years later, the high court ruled in Witters v. Washington Department of Services for the Blind that a state-funded program offering vocational rehabilitation training could be extended to a blind person studying to become a pastor at a private Christian college. The court unanimously held that Washington's program could be extended to the student without subverting the establishment clause.

“On the facts we have set out, it does not seem appropriate to view any aid ultimately flowing to the Inland Empire School of the Bible as resulting from a state action sponsoring or subsidizing religion,” wrote Justice Thrugood Marshall.

As in Mueller, the court noted the way in which financial aid reached the religious institution was worth considering in determining whether the state program violated the establishment clause.

“As far as the record shows, vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice,” said Marshall. “Any aid provided under Washington's program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.”

Bolick noted that currently several state supreme courts are considering the constitutionality of voucher plans. It is only a matter time, he said, before the “constitutional cloud over school choice” is removed.

“Basically, in our view the establishment clause is designed to prevent the direct support of religion, per se,” he said. “It is not designed to prevent individuals from using their tax money,” for support of religious schools.

Bolick said that while he does not see a congressional override as being realistic, he does believe that “after Clinton's term expires, the issue will be revisited.

“All Clinton has done by vetoing the voucher bill is to gift-wrap a political issue for the Republicans,” Bolick concluded.