School Vouchers and the Constitution - Permissible, Impermissible, or Required?

Abstract:     
This article focuses on two Supreme Court decisions with major implications for the constitutionality of school vouchers: Pierce v. Society of Sisters in 1925, which held on due process grounds that the state cannot compel parents to send their children to public school; and Zelman v. Simmons-Harris in 2002, which held that vouchers for parochial school education do not violate the Establishment Clause. Part I argues that if Pierce is correctly decided, then the state cannot compel parents to send their children to any school unless it provides poor parents with the funding needed to send their children to private schools. Part II then looks closely at whether Pierce is correctly decided and maintains that it is not. Despite the Supreme Court's various reaffirmations of Pierce as a "privacy" case, Pierce does not implicate a right of fundamental constitutional stature and deserves no greater respect than the many discredited substantive due process cases of the Lochner era in which it was decided. Part III considers whether parents who object to compulsory public education on religious grounds stand on stronger footing than ones relying on the generalized due process right recognized in Pierce. It concludes that although a fundamental right - free exercise of religion - is implicated, the right typically is not substantially burdened by compulsory public education. Part IV contends that the Court's recent decision in Zelman upholding vouchers for parochial schools incorrectly answers the Establishment Clause inquiry that the Court claims the case presents. More basically, Part IV further maintains that by framing the relevant inquiry in terms of endorsement of religion, the Court in Zelman takes much too narrow a view of the possible constitutional difficulties presented by laws providing state financial support to religion.

Accepted Paper Series