School Vouchers: A Solution or a Problem?

Samu Jayaprakash

Edited by Ann Vadakkan, Anshumi Jhaveri, Sahith Mocharla, Jia Lin, and Judge Baskin

The structure of the American education system directly reflects the country’s broader constitutional framework—with the United States Constitution not explicitly guaranteeing a right to education, and leaving the responsibility primarily to state and local governments through the Tenth Amendment. This federal vs state authority was examined in the 1973 Supreme Court case of San Antonio Independent School District v. Rodriguez, in which the Court ruled that states have control over school funding, making education a state issue, not a federal one. With authority continually reaffirmed as a state-level administrative decision, school funding, school regulations, and educational requirements vary significantly across state lines. Among the most contentious issues is the use of school vouchers, a policy that varies widely by state and raises fundamental questions about public funding, school choice, and the role of government in education. School vouchers, also referred to as school choice, are one of many programs that vary by state and are subject to significant debate. School vouchers/choice programs function such that parents are allocated public money to pay for private school and/or homeschooling costs. The first voucher programs began in Vermont in 1869 and were called “town-tuitioning programs” [1]. These first programs were created to provide children in rural towns with education, as they didn’t have public schools that they could attend on their own [2]. Then, during the 1950s, private school vouchers emerged amidst efforts to escape school integration. Today there are 23 school voucher programs across 13 states: Georgia, Indiana, Louisiana, Maine, Maryland, Mississippi, New Hampshire, North Carolina, Ohio, Oklahoma, Utah, Vermont, Wisconsin, and the District of Columbia [3]. In the 85th legislative session, the Texas Senate passed Senate Bill 2 (SB2), which allows parents to use state funds for private school costs, and revoked many of the arguments surrounding school voucher programs. The arguments on the effects of vouchers include anything from the diversion of public funds to the separation of church and state [4]. Although at face value, school voucher programs allow parents to choose what's best for their child's education, there are many potential drawbacks which critics frequently cite. First, the possible private religious education of a few at the expense of a broad secular education of all. Next, the reduced accountability of private schools and a reduction in funding for public schools (that are already struggling). Finally, low-income students, who are often served by these public schools, being left behind. 

Possible Infringement on the Establishment Clause

Firstly, school vouchers may indirectly promote the religious education of a few students at the expense of a broader secular education for all and may therefore violate the Establishment Clause of the First Amendment. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion” [5]. This is especially pertinent regarding school voucher programs. According to the Pew Research Center, “about three-quarters of private school K-12 students (77%) attended a religiously affiliated school,” with Catholic schools accounting for more than a third of private school enrollment [6]. Therefore, while the government may not directly be promoting a religion through the facilitation of school voucher programs, the program undoubtedly benefits private schools, the majority of which are religious. 

Proponents of school vouchers argue that they are constitutional, given that the government doesn’t directly provide these funds to the schools but rather to the parents who send their children to such schools. Advocates for school choice programs may point to the Supreme Court case Everson v. Board of Education (1947), in which the Supreme Court ruled that a New Jersey law that allowed reimbursement for student transportation to religious schools did not violate the Establishment Clause [7]. However, in this scenario, the program had a public cause: it did not directly support Catholic schools, but rather helped students with transportation to such schools. However, with school vouchers, these funds are indirectly given to private schools, and as stated by Justice Wiley Rutledge, “it is of no importance... whether the aid is directly bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church and it can no more tax its citizens to furnish free carriage to those who attend a Church” [8]. 

Moreover, 37 state constitutions include the Blaine Amendments, named after a failed federal constitutional amendment originally proposed by U.S. Senator James G. Blaine in 1875 [9]. While these amendments vary by state, they generally prevent state legislatures and other governmental entities from allocating funds to religious institutions, including religious schools. For instance, in Texas, Article I Section 7 of the Texas Constitution states that “no money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes” [10]. School vouchers are meant to enable more parents to access more forms of schooling, including sending their children to private schools, which generally benefit from such voucher programs [11]. As these programs derive money from the state, they violate the Blaine Amendments of the Texas Constitution. Some may argue that the Blaine Amendments themselves are unconstitutional (citing they violate the First Amendment protection of the freedom of religion), and therefore should not apply to school vouchers. In Espinoza v. Montana Department of Revenue in 2020, the Court struck down Montana's Blaine Amendment, as it “unlawfully discriminated against religious schools by excluding them from a tax benefit” [12]. However, in this scenario, the school voucher program does not discriminate against private schools but instead benefits private schools, likely at the expense of public schools due to diverted funds. Moreover, Justice Sonya Sotomayor has stated in other cases that the “Court has consistently refused to treat neutral government action as unconstitutional solely because it fails to benefit religious exercise” [14]. However, when a government does “make a law respecting an establishment of religion,” it is unconstitutional as a violation of the First Amendment. 

There are two landmark school choice cases related to its relationship with the Establishment Clause. Firstly, the Mitchell v Helms decision of 2000 found that Chapter 2 of the Education Consolidation and Improvement Act of 1981 was constitutional [15]. This act called for the allocation of funds for educational materials to both public and private elementary and secondary schools. In this case, funds were allocated to both public and private schools, but in school choice programs, funds are only allocated to private schools. Secondly, the Zelman v. Simmons-Harris Supreme Court case of 2002 found that Ohio’s school voucher program was constitutional since it provided tuition aid in the form of vouchers to parents to attend public or private schools of their choice. Additionally, the Zelman v. Simmons-Harris established a five-part test in order for a voucher program to be constitutional. The test includes that the program must have a valid secular purpose, aid the parents and not the schools, have a broad group of beneficiaries, be neutral concerning religion, and there must be adequate options for private schools [14]. While many voucher programs may meet most of these requirements, it is difficult to discern how many options are necessary for it to count as “adequate.” However, as said in the dissenting opinion of Justice Stephen Breyer, in the Supreme Court case Espinoza v. Montana Department of Revenue, “if the Court has found it possible to walk what we have called the ‘tightrope’ between the two aspects of religion it is only by ‘preserving doctrinal flexibility and recognizing the need for a sensible and realistic application’” [16]. Therefore, the school choice test established in Zelman v. Simmons-Harris must be re-evaluated in each given scenario, to determine a school voucher program’s constitutionality. 

Regardless, voucher programs that use government funds can directly or indirectly promote the religious education of a few students at the expense of a broader secular education for all. Since the majority of private schools benefiting from these voucher programs are religiously oriented, government funds indirectly benefit religious institutions and, therefore, violate the Establishment Clause. 

A Lack of Accountability

Secondly, school vouchers may reduce the accountability of private schools, particularly concerning the curriculum and student achievement levels. Some states with vouchers have school evaluation and accountability systems similar to those in public schools, such as Indiana (which uses an A to F grading scale for public and private schools). In states like Louisiana and Ohio, students who receive vouchers are required to take the same standardized tests as those in public schools. However, other states, such as North Carolina, have minimal oversight of private schools. Therefore, parents in states with lower measures of accountability have almost no resources or data when trying to decide whether private schools are beneficial. 

Furthermore, the Supreme Court case of Farrington v. Tokushige, in 1927 ruled that the Territory of Hawaii’s law that regulated hours, textbooks, and curriculum of private schools was “unreasonable and that parents had the right to exercise control over how their children were educated without restrictions that were unrelated to any rational state goal” [17]. The Court ruled that the law violated the Due Process Clause of the Fifth Amendment, which provides that no person shall be “deprived of life, liberty, or property, without due process of law” [18]. In this scenario, Hawaii did not have a state-voucher program. However, in a state with voucher programs, state funds would be spent towards the private education of students, but the government would have limited regulation of these schools, due to the aforementioned application of the Due Process Clause. 

Additionally, while proponents of the school voucher program may argue that it allows parents to have better control over  their children’s education by increasing access to private education, this may not necessarily be true. The Tinker v. Des Moines Supreme Court case of 1969 established that students, and indirectly their parents, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” [19]. This case was vital in balancing parental rights with school authority and allows both parents and students to express their opinions, even if they are critical of the school. However, “private institutions generally are not bound by the First Amendment” [20]. Therefore, while parents may believe they have more control over their child’s education in a private school, their rights to speak out against these institutions may be limited. The Texas Association of School Boards states that parents who send their children to private schools would forfeit their “right to review their child’s educational records and request corrections… right to be notified of incidents of bullying… [and] protection of their family faith,” among others [21]. Therefore, in voucher programs, state funds would be spent towards the private education of students, but the government and parents would have limited regulation of these schools. 

A Threat to the Equal Protection Clause

Lastly, school vouchers may lead to increased disparities and unequal opportunities for children, thereby possibly violating the Equal Protections Clause. In 1868, the Fourteenth Amendment was ratified, which included the Equal Protections Clause, which provided all citizens with “equal protection of the laws” [22]. Then in 1954, Brown v. Board of Education, this principle was applied to schools. This court case concluded that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal” [23]. 

While supporters of the school voucher program may argue that this program would offer students in struggling schools access to better schools, students in those schools may in fact be disproportionately disadvantaged. Often, struggling schools are found in rural areas and are negatively impacted by poverty [25]. Yet despite claims of advancing equality and access, school voucher programs may exacerbate this inequality as there are more private schools located in suburbs (10,911) and in cities (10,005) than in rural areas [26]. These programs disadvantage rural students—for whom there aren’t as many options for private school nor access to transportation. Another group of students who are disadvantaged are those with limited financial resources or those living in poverty. Since vouchers often don’t cover the full cost of private schools, families are often forced to choose between the supposed ‘better’ education their child is receiving at a cost level even a subsidy (voucher) cannot alleviate the burden of. Texas SB2, provides $10,000 each year per student who attends an accredited private school [27]. But the average cost for private schools in Texas is about $11,100 and can range to upwards of $40,000 [28]. Therefore, even parents who receive vouchers may not be able to pay this difference and may not be able to send their children to private schools. Additionally, while a private school may accept a voucher, it doesn’t mean they will admit every student with a voucher. Therefore, through selective admissions, private schools often exclude those with poor academic records, disabilities or specialized needs (who require more resources or staff), or those with different religious beliefs—much of which may facilitate and engender discrimination (whether directly or indirectly) [29]. However, since funds are diverted from public schools as a whole to support these voucher programs, all students are negatively affected. Rural and financially disadvantaged students, as well as those who may not be accepted by or have access to private schools, are affected most detrimentally. Additionally, state and public school funding is often attendance based, and by losing students, there would be less federal and state funding, negatively impacting students at public schools [30]. Therefore, school vouchers may indirectly lead to the segregation of students into those who can afford and get accepted through selective admissions into private schools, and those who can’t to public schools. This separation would not only be permitted but also facilitated through state funds, and therefore wouldn’t abide by the decision in Brown v. Board of Education. 

Another case related to the issue of inequalities in educational funding, is the 1971 Serrano v. Priests decision, in which the California Supreme Court ruled that California’s school finance system was unconstitutional as it “[failed] to meet the requirements of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the California Constitution” [31]. This was because students' education quality depended on the wealth of their community and thereby the wealth of their family. This concern is reflected in the school voucher program, since students whose families would not be able to afford the private school tuition that is not covered by the voucher would therefore receive public education. However, since funding is diverted from public schools to private schools, students who face financial difficulties would have a lower quality of education due to their family’s economic status. Additionally, as stated in Justice Thurgood Marshall’s dissenting opinion, “countless children [will] unjustifiably receive inferior educations that 'may affect their hearts and minds in a way unlikely ever to be undone’” [32]. This concern of Justice Marshall is reflected in the concerns against the school voucher program, where many children may receive an inferior education through no fault of their own.

Conclusion

Although school voucher programs theoretically allow parents to choose what is best for their child’s education, they carry significant consequences. Including leading to the private religious education of a few at the expense of a broad secular education of all, the reduced accountability of private schools, and the diversion of funds away from public schools that are already struggling. While school choice programs have evolved since they were first introduced, there continues to be variation by state since education remains a state issue, not a federal one. There are some programs with more government oversight, while in other states, private schools lack any accountability. Moreover, the impact of school vouchers on student performance is still debated, and more research is needed to understand the consequences of such programs. 

Regardless, as explained by Justice Breyer, courts often find themselves balancing on a tightrope when it comes to the issues of separation of church and state, especially in regard to education. The tightrope in the case of school vouchers is further narrowed with the balancing act between separation of church and state and the adherence to the Equal Protection Clause. Governments not only have a responsibility to protect students’ freedom of religion without promoting a religion themselves, but they must also ensure that the doctrine of “separate but equal” has no place in education [33]. This is the tightrope that we find ourselves balancing on today with school voucher programs. While the right to education may not explicitly be guaranteed in the U.S. Constitution, it is a necessity that would otherwise plague society. All students deserve an equal education, regardless of their circumstances. If school vouchers undermine this fundamental principle, they risk creating an unfair separation, and as was affirmed in a landmark case 70 years ago, “separate educational facilities are inherently unequal” [34]. Programs that create such division have no place in a country that prides itself with the right to “life, liberty, and the pursuit of happiness” [35].

---

[1] Boomer Kennedy, Perspective | Debating School Choice: A Historical Overview of Private School Vouchers, EducationNC (2024), https://www.ednc.org/perspective-debating-school-choice-a-historical-overview-of-private-school-vouchers/ (last visited Feb 16, 2025).

[2] See [1]

[3] JoAnne Wilkins, 50-State Comparison: Private School Choice, Education Commission of the States (2024), https://www.ecs.org/50-state-comparison-private-school-choice-2024/ (last visited Feb 16, 2025).

[4] See [1]

[5] The Bill of Rights: A Transcription, National Archives (2015), https://www.archives.gov/founding-docs/bill-of-rights-transcript (last visited Feb 16, 2025).

[6] Katherine Schaeffer, U.S. Public, Private and Charter Schools in 5 Charts, Pew Research Center (Jun. 6, 2024), https://www.pewresearch.org/short-reads/2024/06/06/us-public-private-and-charter-schools-in-5-charts/ (last visited Feb 16, 2025).

[7] Everson v. Board of Education, 330 U.S. 1 (1947), Justia Law, https://supreme.justia.com/cases/federal/us/330/1/ (last visited Feb 16, 2025).

[8] See [7]

[9] Untitled, Answers to Frequently Asked Questions About Blaine Amendments, https://ij.org/issues/school-choice/blaine-amendments/answers-frequently-asked-questions-blaine-amendments/.

[10] Art 1 - Sec 7, Justia Law, https://law.justia.com/constitution/texas/sections/cn000100-000700.html (last visited Feb 16, 2025).

[11] “School Vouchers 101.” Raise Your Hand Texas, https://www.raiseyourhandtexas.org/school-vouchers-101/. Accessed 16 Apr. 2025.

[12] Espinoza Et Al. v. Montana Department of Revenue Et Al. , (2020), https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf.

[12] See [11]

[13] See [7]

[14] Mitchell v. Helms, 530 U.S. 793 (2000), Justia Law, https://supreme.justia.com/cases/federal/us/530/793/ (last visited Feb 16, 2025).

[15] Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Justia Law, https://supreme.justia.com/cases/federal/us/536/639/ (last visited Feb 16, 2025).

[16] See [11]

[17] US Legal Inc, Farrington v. Tokushige (1927) – Education, https://education.uslegal.com/compulsory-education-overview/early-united-states-supreme-court-challenges/farrington-v-tokushige-1927/ (last visited Feb 16, 2025).

[18] “Due Process.” LII / Legal Information Institute, https://www.law.cornell.edu/wex/due_process. Accessed 16 Apr. 2025.

[19] Tinker v. Des Moines, (1969), https://www.uscourts.gov/about-federal-courts/educational-resources/educational-activities/first-amendment-activities/tinker-v-des-moines/facts-and-case-summary-tinker-v-des-moines#:~:text=In%20a%207%2D2%20decision,speech%20might%20disrupt%20the%20learning.

[20] Know Your Rights: Students in Higher Education & the First Amendment, NYCLU, https://www.nyclu.org/resources/know-your-rights/know-your-rights-students-higher-education-first-amendment (last visited Feb 16, 2025).

[21] Public Schools, Not Private Ones, Protect Parental Rights, TASB (2022), https://www.tasb.org/news-insights/public-schools-protect-parental-rights (last visited Feb 16, 2025).

[22] The Constitution: Amendments 11-27, National Archives (2015), https://www.archives.gov/founding-docs/amendments-11-27 (last visited Feb 16, 2025).

[23] Brown v. Board of Education (1954), National Archives (2021), https://www.archives.gov/milestone-documents/brown-v-board-of-education (last visited Feb 16, 2025).

[25] Loic Menzies, Breaking the Link? Attainment, Poverty and Rural Schools, CfEY (2019), https://cfey.org/2019/04/breaking-the-link-attainment-poverty-and-rural-schools/ (last visited Feb 16, 2025).

[26] K-12 Private Schools, https://proximityone.com/k12privateschools.htm#:~:text=There%20were%20more%20private%20schools,in%20any%20other%20grade%20level (last visited Feb 16, 2025).

[27] Keri Heath and Alexis Simmerman, What Are School Vouchers in Texas? What to Know about Senate Bill 2, Austin American-Statesman, https://www.statesman.com/story/news/state/2025/02/06/school-voucher-texas-senate-bill-sb-2-choice-public-private-homeschool-impact-students-parents/78283012007/ (last visited Feb 16, 2025).

[28] Average Cost of Private School [2024]: Tuition by Education Level, Education Data Initiative, https://educationdata.org/average-cost-of-private-school (last visited Feb 16, 2025).

[29] Who Really Benefits from School Vouchers, (2024), https://edtrust.org/wp-content/uploads/2024/10/Who-Really-Benefits-from-School-Voucher-Programs-FINAL.pdf.

[30] “What You Need to Know About the ESSER Funding Cliff.” IDRA, https://www.idra.org/education_policy/what-you-need-to-know-about-the-esser-funding-cliff/. Accessed 16 Apr. 2025.

[31] Serrano v. Priest, Public Advocates (1968), https://publicadvocates.org/our-work/education/access-quality-education/serrano-v-priest/ (last visited Feb 16, 2025).

[32] San Antonio Independent School District v. Rodriguez, Ballotpedia, https://ballotpedia.org/San_Antonio_Independent_School_District_v._Rodriguez (last visited Feb 16, 2025).

[33] See [21]

[34] See [21]

[35] Declaration of Independence: A Transcription, National Archives (2015), https://www.archives.gov/founding-docs/declaration-transcript (last visited Feb 16, 2025).