Legal History of Vouchers

Voucher: A document or chit, usually issued by the state, that can be used by parents to pay tuition at an out-of-district public school, a private school and/or a religious school. The term is also used more broadly to describe school-choice proposals in which states would help pay tuition for children attending private or religious schools.

1869 -- Vermont adopts a tuition statute to ensure that both urban and rural school children can receive a quality secondary education. For children living in towns too small to support a local public school, the state pays the tuition expenses for children to attend any public or non-sectarian private school, including schools outside the state. [See 1961.]

1873 -- The Maine legislature enacts the first law providing state aid for public high schools. Despite this aid, however, it became apparent that many rural towns still cannot afford to build high schools. [See 1903.]

1903 -- The Maine legislature enacts a law that guarantees every child a high school education.This tuitioning system pays the child's tuition to any school of the parents' choice, either in state or out-of-state. [See 1980.]

1961 -- Religious schools are banned from participating in Vermont's tuition program. [See 1999.]

1980 -- The Maine Department of Education rules the tuitioning system will not pay for students to attend religiously-affiliated schools in towns that have public high schools. [See 1999.]

1990 -- In Wisconsin, the Milwaukee Parental Choice Program is enacted, allowing up to 1 percent (approximately 1,000) economically disadvantaged pupils in the Milwaukee Public Schools to use their state share of education funds as full payment of tuition in participating nonsectarian private schools. [See 1995.]

1995 -- The Milwaukee program is expanded in the 1995 Wisconsin state budget to include religious schools among the options; teachers and others sue on First Amendment grounds, forcing an injunction on expansion of the program. The Wisconsin Supreme Court partially dissolves the injunction in Jackson v. Benson, allowing non-sectarian school expansion while keeping the restriction on religious schools. [See 1998.]

The Ohio legislature enacts the Pilot Project Scholarship Program, which established two types of educational assistance, tuition scholarships and tuition assistance grants. The scholarships may be applied toward tuition at eligible and participating private schools within the Cleveland school district, or at public schools in participating adjacent districts. [See 1999.]

1997 -- The Wisconsin state legislature expands the school choice budget. The Wisconsin Supreme Court blocks expansion of the program pending its ruling, but was later deadlocked and remanded the case to district court, where it was ruled unconstitutional. That decision was appealed. [See 1998.]

1998 -- The Wisconsin Supreme Court upholds using publicly-funded vouchers in religious schools in a 4-2 ruling, saying the program "...does not violate the Establishment Clause because it has a secular purpose, it will not have the primary effect of advancing religion and it will not lead to excessive entanglement... The propriety of providing educational opportunities for children of poor families in the state goes without question." The plaintiffs and their attorneys appeal the decision to the U.S. Supreme Court, which declines to hear the case.

1999 - In Ohio, the scholarship program is overturned by the Ohio Supreme Court on a legal technicality, reauthorized by the Ohio legislature but then re-halted under a judicial injunction. Subsequent outcry allows the current students to return to their school of choice; then the case, Simmons-Harris v. Goff, is appealed to federal court, where a U.S. district judge winds up ruling the program unconstitutional; the case is currently on appeal to the Sixth Circuit Court of Appeals.

The Maine Supreme Court rules in Bagley v. Raymond School Department that the 1980 ban on religious schools is not unconstitutional but does not say whether the inclusion of religious schools would be unconstitutional. The decision does not support the right of parents to send their children to a religious institution and receive a tuition reimbursement. At the same time, in Strout v. Albanese, the same issue is raised in federal court and an identical result is delivered. Both the state and federal rulings stand when the U.S. Supreme Court decides not to review either ruling.

Florida enacts the country's first and only statewide voucher program, the Opportunity Scholarship Program, for students in "chronically failing" schools (defined as failing to meet minimum state standards two out of four years.)

The Vermont Supreme Court affirms the decision to revoke vouchers for religiously-affiliated schools, when the citizens and school board of Chittenden, Vermont, challenge the decision in Chittenden Town School District v. Vermont Department of Education. In 1996, the local school board agreed to pay parochial school tuition for the children of about 12 Chittenden families, a decision that was the basis for the lawsuit. The U.S. Supreme Court declined to review the case, effectively letting it stand.

Illinois enacts an educational expenses tax credit, which would provide parents a tax credit of up to 25 percent of education-related expenses (tuition, book fees, lab fees) exceeding $250, for a maximum of $500 per family whether they attend public, private or parochial schools. This program has been challenged in two separate lawsuits.

The U.S. Supreme Court decides not to review the January ruling of the Arizona Supreme Court, which upholds the state's income tax credit for contributions to private school scholarship funds. This is not a voucher program per se, but a $500 state tax credit for donations to school tuition organizations that provide scholarships for any student to attend a private secular or religious school. Any taxpayer who donates funds to school tuition organizations gets a credit up to $500 on the state income tax return (unless the donor gives the funds to his own dependents). This decision is widely considered a harbinger for what the high court might do later in deciding whether to allow vouchers for religious schools. [See 2000.]

2000 -- Florida's voucher program is ruled unconstitutional by a state circuit judge (Bush et al v. Holmes et al), but critics fail in their attempt to have the program stopped while the state appeals to the Florida Supreme Court.

In another case not specifically voucher-related but widely regarded as being a portent for judicial decisions to come in Ohio and Florida, the U.S. Supreme Court ruled that Louisiana private school students are entitled to the benefits of the federal Chapter 2 program. School districts can distribute computers, software and other education materials equitably to all schools regardless of their affiliation. This case was originally brought on the grounds that the distribution of federal aid to parochial schools violated the church-state separation.

The Cleveland, Ohio voucher program was rejected by a three-judge federal appeals court on December 11. The ruling found that the program was unconstitutional because it violated the First Amendment's separation of church and state.

The case is now likely to go to the U.S. Supreme Court since supporters of the program have pledged to appeal the ruling.

Judge Eric Clay of the United States Court of Appeals for the Sixth Circuit wrote in the ruling that the program was not giving Cleveland parents a real choice in schools. The ruling noted that 96 percent of the nearly 4,000 students using the vouchers attend church-subsidized religious schools because of affordable tuition, resulting in government funds being funneled into religious schools.

"This scheme involves the grant of state aid directly and predominantly to the coffers of private, religious schools, and it is unquestioned that these institutions incorporate religious concepts, motives and themes into all facets of their educational planning," Clay wrote. Clay, appointed in 1997 by President Bill Clinton, was joined in the opinion by a 1991 Bush appointee, Judge Eugene Siler.

In a harshly worded dissent, Judge James Ryan, an appointee of President Ronald Reagan, wrote that the majority opinion was "absurd" and "meritless" and it was "an exercise in raw judicial power having no basis in the First Amendment or in the Supreme Court's Establishment Clause jurisprudence." He also criticized the quality of Cleveland's public schools.

2002 -- On June 27, the Supreme Court ruled that the Cleveland voucher program did not infringe upon the constitutional separation of church and state.

In a 5-4 ruling, the Supreme Court said the school voucher program does not constitute the establishment of religion. The much-anticipated ruling on the pilot project involving inner-city Cleveland schools came on the final day of the Supreme Court term, which began in October.

The ruling reverses the December 2000 appeals court decision, which struck down the program because nearly all the families receiving the tax-supported state tuition scholarships attend Catholic schools in Cleveland.

But the Supreme Court majority said the parents have a sufficient range of choices among secular and religious schools that Ohio's voucher plan does not violate the First Amendment prohibition against the establishment of religion.

"We believe the program challenged here is a program of true private choice," wrote Chief Justice William Rehnquist. "The Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district."

With the crucial constitutional hurdle behind them, proponents of school voucher programs are already looking ahead to expand their "school choice" agenda and say the decision provides a boost to voucher programs in Milwaukee and Florida. State legislatures will have to approve voucher programs if they wish to model the Cleveland pilot project.

Rehnquist delivered the decision, joined by Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. The five more conservative members of the High Court who often control key issues produced a ruling which supports the pro-voucher views of the president and many conservative lawmakers.

In a lengthy and bitter dissent, Justice David Souter acknowledged that Cleveland public schools had failed, but said that is not reason enough to provide tax money for religious purposes.

"If there were an excuse for giving short shrift to the establishment clause, it would probably apply here. But there is no excuse," Souter argued.

"Public tax money will pay at a systemic level for teaching the covenant with Israel and Mosaic law in Jewish schools, the primacy of the Apostle Peter and the Papacy in Catholic schools, the truth of reformed Christianity in Protestant schools, and the revelation to the Prophet in Muslim schools, to speak only of major religious groupings in the Republic," he said.