In God We Trust:
The Lemon Test and Public Funds for Parochial Schools
Elyssa D. Durant, Ed.M
1. How can school vouchers reach a balance between serving the public interest and preserving individual freedoms and rights?
2. What additional arguments can be presented for against the use of school vouchers for parochial schools?
3. How is the issue of school vouchers for sectarian institutions different or similar from issues surrounding prayer in school?
4. What are the common issues relevant to both charter schools and voucher programs?
This article will address concerns regarding the long-term outcomes of school choice and voucher programs. Specifically: do school vouchers exacerbate the inequality between the rich and the poor?
Since I believe that health care and education are both social goods, I have some reservations about letting the free-market run amok during such a critical point in history. Is it wise to allow for-profit market forces to dictate public goods when natural rights are at stake?
The shortcomings of the Medicaid managed care programs, Medicare supplemental insurance policies, and demonstration projects such as the privatization of prisons provide sufficient evidence of the dangers of profit driven corporations in American culture. Corporate scandals with food and other suppliers contracted by the Board of Education in New York City in the late 1990's provide excellent examples of how easy it is for private companies to manipulate funds away from the target recipients.
It was not too long ago that private managed care companies offered gifts to boost enrollment by enticing desperate Medicaid recipients to join their plans. This marketing strategy is simply offensive when we are dealing with a social good albeit health care or education. Vulnerable populations are frequently exploited through corporate contracts and there is little reason to believe that for-profit conglomerates would treat public schools or economically disadvantaged students and families otherwise.
Arguments on both sides of the school voucher issue are very similar to those presented for and against charter schools and free-market school choice. Smrekar (1998) presents four key issues that have been at the center of the school choice debate: (1) economic, (2) political; (3) social justice; and (4) pedagogical.
The economic argument in favor of school choice points out that our current public education system resembles a monopoly. Proponents argue that the introduction of choice into the educational marketplace will promote competition and force schools with poor performance records to improve or close (Friedman, 1968).
The political argument is centered on the democratic ideal that the freedom to choose where your child attends school is a fundamental right. The political argument also triggers strong feelings about the role of education in a democratic society. There are those who feel that the public school is intended, at least in part, to create a common set of core values that is best served by the public sector.
At the core of the political school choice argument is a debate regarding the benefits of providing a common set of experiences in a democracy versus promoting individual choice and liberty (Smrekar, 1998). This issue, while not dead, was challenged in 1925 when the Supreme Court ruled in Pierce v. Society of Sisters (268 U.S. 510 (1925)) in favor of parents who sent their children to private school. This argument continues today and is at the center of both school choice and curriculum debates.
The social justice argument is a bit more complicated and there is little agreement on any front. Proponents argue that school choice empowers the poor to participate in the education of their children by giving them the same options available to wealthier families in the United States. According to a 1997 poll in USA Today, 47% of parents would send their children to private schools if they had the financial resources (Doyle, 1997).
Information is an essential component to any school choice program. In order to ensure social equity in school choice programs we need to be sure that the "poor" are fully informed of their choices and are not taken advantage of in the open market. Research has shown that the act of "choosing" has positive effects on the school environment and promotes parental involvement in their children's education (Doyle, 1997). Additional components of the social justice argument have focused on the nuts and bolts of choice programs, and point out how there are several different ways that choice programs may (wittingly or unwittingly) promote social inequity (Cookson, 1995). Such arguments focus on transportation problems, admissions policies, the availability of information, and how we define "choice" and implement policies regulating recruitment, enrollment and performance of participating schools, (Cookson, 1995; 1997).
The pedagogical argument points out that school choice programs are better suited for the individual needs inherent to a pluralistic society. Although some feel there is value in providing core curriculum and a common set of basic skills, there is a current trend towards specialty schools that focus on the arts and sciences, technology, vocational training, etc. Educators look towards successful magnet schools as examples of the pedagogical success that demonstrated the importance of school choice and parental involvement as indicators of educational outcomes. Some educators fear that the introduction of school choice and voucher plans would prompt the best students to leave public schools and that this would have a negative effect on the overall climate of public classrooms.
Among the various school voucher programs, there is considerable controversy surrounding the program design that gives qualified individuals the choice to attend parochial schools using public funds. Traditional arguments against this type of school voucher program have focused on the constitutionality of using state funds for sectarian institutions. In theory, public schools are believed to be completely independent of religious institutions and provide a place where young adults can join together and develop a core set of "American" values and "democratic" principles. Just this year, states such as Tennessee have modified the curriculum to include Bible class in publicly funded classrooms. It is not yet known how this will be implemented given the number of students who did not meet the No Child Left Behind (NCLB) benchmarks. They are just now trying designing the course content and have not yet selecting the text to be used next fall (2008).
Historically, the church had a key role in the education of children in America. During the National Period (1780-1830), churches were used to educate children, and the King James Bible was used as a reader in these classrooms (Smrekar, 1998). Derek Neal (1997) points out that much of the current sentiment against Catholic schools is not a reflection of their excellent performance record, but rather an indication of the anti-Catholic sentiment which swept the country during the late part of the 19th Century (Neal, 1997). Neal argues that until that point, there was no contest to religious education as long as it was Protestant.
Catholic schools have traditionally served the children of the working class. They were a major socializing force earlier in the century and continue to succeed with children who might otherwise fall through the cracks in public schools. Despite tapering enrollment, Catholic schools remain a viable force in the private sector providing a reasonably priced private education to American children. Neal conducted a study that looked at the graduation rates of minority children attending Catholic schools compared with children attending public schools in the inner cities. Controlling for demographic variables, (parent's education, parent's occupation, family structure, and reading materials at home) closer analysis revealed graduation rates for urban minorities are 26% higher in Catholic schools compared with public schools in the same communities. Although Neal found similar benefits for whites and in suburban communities, this effect was most profound for urban minorities.
Other studies have focused on identifying the qualities that make Catholic schools successful. A number of factors have been identified by Bryk and Lee, including active parental participation and the benefits of school choice in creating an inclusive community that fosters a common set of values and ideals (Bryk & Lee, 1995). Interestingly, the very same variables found to enhance the performance of Catholic school students are remarkably similar to the reported benefits of magnet schools and choice programs. Despite the excellent performance records of Catholic schools, there are currently no voucher programs that allow parochial schools to participate in state funded voucher programs.
The reason for this is quite simple, but not necessarily correct or in the best interest of our children. The Establishment Clause of the First Amendment of the United States Constitution prohibits the use of public funds in religious institutions. However, it can also be argued that it is unconstitutional to exclude parochial schools from voucher systems because it violates the student's free expression of religion. In addition, voucher programs require a conscious decision on the part of the student and the parent. The state does not enforce a blanket endorsement of any one religion. I use Catholic schools as an example because they represent the majority of parochial schools in urban America.
Voucher programs typically undergo strict scrutiny for all four reasons mentioned above, but this issue is especially true of any choice or voucher program that channels funds into Parochial schools. For this reason, Catholic schools and other schools with religious affiliations have been excluded from voucher plans up until this point. It is not politically viable to institute a choice or voucher program at any level (at the district, state or national level) since similar plans have historically presented long-standing, hard-fought, legal challenges to the Establishment Clause of the First Amendment of the United States Constitution.
Since the Supreme Court has not ruled on this issue, most challenges up until this point have taken place in state courts. These state decisions have been split, and while there are a few voucher programs operating in Wisconsin and Ohio, neither permits sectarian schools to participate in their programs. Milwaukee designed a voucher system that included parochial schools in 1995 but later revised their proposal after the Wisconsin Supreme Court issued a temporary injunction against expansion into religious schools (Kremerer & King, 1995).
School choice programs that involve vouchers have not been tested in the Supreme Court, but there is a long history of court cases that challenge the flow of money from the public sector into private, sectarian institutions. The recent pattern of Supreme Court rulings has lead some legal scholars (Kremerer & King, 1995) to conclude that school vouchers would pass constitutional muster under the following circumstances:
1. Provides payments in the form of scholarships to parents of school age children
2. Allows parents to choose among a variety of public and private sectarian and nonsectarian schools for their children
3. Gives no preference to sectarian private institutions
Voucher programs up until this point have encountered substantial resistance from the legal community and a number of civil rights and political organizations. This becomes more pronounced when the voucher model includes sectarian institutions in the model plan and state court rulings have been inconsistent in decisions surrounding the constitutionality of voucher programs.
The definitive case regarding school voucher programs is Lemon v. Kurtzman (403 U.S. 602 (1971)). The Court's ruling in Lemon was based on three components that came to be known as the "Lemon Test." The Lemon Test applies the following to any Constitutional challenge of the Establishment Clause:
1. The government action must have a secular purpose
2. The primary effect must neither advance, nor inhibit religion
3. It must not result in excessive governmental entanglement with religion
Since voucher programs do not generally provide support directly to the institution, individual freedom and choice remain intact. Individual families are empowered by educational vouchers since they choose the school and religion appropriate for them. Qualified schools are not determined by religious affiliation and all schools are required to adhere to state and federal regulations that increase accountability. Similar issues came before the courts in Pierce v. Society of Sisters (268 U.S. 510 (1925)) as well, however Lemon v. Kurtzman (403 U.S. 602 (1971)) is considered to be both the landmark and test case currently before the courts.
The reason for this is quite simple, but not necessarily correct or in the best interest of our children. The Establishment Clause of the First Amendment of the United States Constitution prohibits the use of public funds in religious institutions. However, it could also be argued that it is unconstitutional to exclude parochial schools from voucher systems because it violates the free expression of religion. In addition, voucher programs require a conscious decision on the part of the student and the parent. The state does not enforce a blanket endorsement of any one religion. I use Catholic schools as an example because they represent the majority of parochial schools in urban America.
Teacher's unions are resistant to bring in a new system that has the potential to upset their job status and security. It will likely be a number of years before we truly understand the effects of magnet schools and can evaluate the implementation of school choice programs that are already in place. Because we are dealing with such an essential human, social good, it is my recommendation that we do not implement a largest-scale voucher program until issues of access and equity are resolved on other public fronts. We must ensure real choices for the students and families who are not information savvy and may be limited in their ability to recognize the real value of their options. We must find a way to ensure the equitable distribution of resources so that education truly does will empower the poor.
Is it time to apply the Lemon Test to school vouchers?
Cookson, P.W., Jr. (1994). School choice: The struggle for the soul of American education. New Haven: Yale University Press.
Cookson, P.W., Jr. (1995). ERIC Digests: School Choice.
Doyle, D.P. (1997). Vouchers for religious schools. Public Interest, 127, 88-95.
Haynes, C.C. (1993). Beyond the culture wars. Educational Leadership, 51(4), 30-34.
Houston, P.D. (1993). School vouchers: The latest California joke. Phi Delta Kappan, 75(4), 61-64.
Kremerer, F.R. & King, K.L. (1995). Are school vouchers Constitutional? Phi Delta Kappan, 77(1), 307-311.
Kremerer, F.R. (1995). The Constitutionality of school vouchers. West's Education Law Reporter,101 Ed. Law Rep. 17.
Kremerer, F.R. (1997). State Constitutions and school vouchers. West's Education Law Reporter, 120 Ed. Law Rep. 1.
Neal, D. (1997). Measuring Catholic school performance. Public Interest, 127, 81-87.
 Including a decision that was handed down regarding a choice plan in Ohio. (12/18/2000)
Elyssa D. Durant © 2007-2014