Public funds for Private Schools. Are vouchers even legal?

Diverting public funds to private schools has been widely contested for decades and continues to be a divisive issue. While many states have enacted laws allowing taxpayer dollars to be used for private schools through vouchers, there have been numerous challenges to the constitutionality of the laws, some of which were successful and some not. 

In June of 2015, the Colorado Supreme Court struck down the state’s voucher program on the grounds that it was in violation of the state constitution’s ban on the usage of public funds for religious institutions. The majority opinion states that a “constitutional provision makes one thing clear: A school district may not aid religious schools. Yet aiding religious schools is exactly what the [voucher program] does.” It goes on to say that, “The [voucher program] has created financial partnerships between the District and religious schools…This constitutes aid to religious institutions…Therefore, we hold that the [program] violates [the constitution].” This constitutional provision is oftentimes called the Blaine Amendment, which prohibits state funding of religious schools, and exists in 37 states.

Similarly, in 2014 a judge declared the North Carolina voucher program unconstitutional based on several reasons, one of which was the money was used to fund religiously discriminatory private schools.[1] “The General Assembly fails the children of North Carolina when they are sent with public, taxpayer money to private schools that have no legal obligation to teach them anything,” stated Judge Hobgood.

Florida’s voucher program was also struck down in 2006 because, according to the majority opinion, "It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children."[2]

However, challenges to voucher programs have not always been successful. A 2002 US Supreme Court Case, in which vouchers were challenged on the grounds of violating the First Amendment’s Establishment Cause, upheld an Ohio voucher program. In 2013, the Indiana Supreme Court declared that the state’s voucher program was legal under the state constitution. Many other challenges, with varying outcomes, have been brought to courts.

Because the constitutionality of voucher programs have been challenged so many times, and there has been no consistent decision, a variety of other programs, such as education savings accounts and tax credit scholarships, have sprung up as creative attempts to siphon public funds to private schools. These too have been challenged but more consistently upheld.[3]





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