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Breaching the Church-State Wall in Education

Public money is increasingly being used to fund religious schools with seeming immunity. As of Sept. 2012, 11 states allowed the use of scholarship tax credit programs to apply to private school tuition. Although the practice has been controversial since its inception in Arizona in 1997, the latest news out of Georgia promises to trigger new lawsuits ("Backed by State Money, Georgia Scholarships Go to Schools Barring Gays," The New York Times, Jan. 21).

According to the Southern Education Foundation, at least 115 religious schools in Georgia, which launched its private school scholarship program in 2008, have strict antigay policies. That means students whose sexual orientation is at odds with the religious principles of the school can be expelled. So far, no parents whose children have been expelled on that basis have come forward. But that doesn't mean lawsuits won't be filed. In fact, I think it is only a matter of time. In Pennsylvania, for example, a teacher at the Covenant Christian Academy filed a federal lawsuit when her contract was not renewed after she supported her son who came out as gay on Facebook. Her suit was settled out of court.

I recognize that private and religious schools have different missions than public schools. Nevertheless, private and religious schools in this country still are bound by the law. For example, in Apr. 2011 when the U.S. Supreme Court upheld Arizona's school tuition plan, it did so on the basis that the plaintiffs had no legal standing. It sidestepped the fundamental-church-state issue. As a result, I'm not convinced that the issue is dead.

The entire trend was made possible by the U.S. Supreme Court's ruling in 2002 in Zelman v. Simmons-Harris. In that landmark case, the high court held that vouchers do not violate the establishment clause of the First Amendment as long as five criteria are met. The single most important criterion is that the vouchers are given directly to parents - not to schools. Yet I foresee future lawsuits based on another requirement of the Zelman case: there must also be adequate non-religious options open to parents. But since nearly 90 percent of non-public schools are religious-based, I think it will be hard to meet that requirement.

Some readers will no doubt argue that scholarship tax credit programs are not vouchers, which have been turned down by voters in state after state. I'm not a lawyer, but a rose by any other name is still a rose. Perhaps a more accurate term is that they are neo-vouchers. Semantics aside, though, the intent is the same: using public money for private and religious schools. I think that's a dangerous path to follow.

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The opinions expressed in Walt Gardner's Reality Check are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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