School Choice: Constitutional or Unconstitutional?

by Fr. Charles Irvin

June 1998



A decision handed down by the Wisconsin Supreme Court on Wednesday, June 10, 1998 gave the biggest legal victory to date to our nation’s pro-school-choice movement. It allowed poor children in Milwaukee to receive vouchers from the State of Wisconsin and to use them in order to attend religiously based schools. The anti-choice forces hastened to attack the decision, taking steps to nullify its immediate effect during the long appellate journey to the U.S. Supreme Court.

In marshaling our thoughts concerning the constitutionality of school vouchers we need to note that in the jurisprudence of the U.S. Supreme Court the equal protection clause of the Fourteenth Amendment to the Constitution has the following force and effect: All activities of the federal and state governments must apply equally to all citizens as a whole, or all citizens of a particular class or segment of the populace, equally and without discrimination as to race, religion, gender, age or national origin. All citizens must be taxed or treated or receive tax-funded benefits without discrimination. Most of us agree with that principle. Some, however, would discriminate against others on the basis of religion, as in the case of those opposed to vouchers issued to parents of school children who want them to attend parochial schools.

Now there are those who feel that all monies directed toward the education of our children belong to the public school system. For them, all tax dollars for education must go exclusively to public schools and no one else may have any claim on those monies. There are even some who are resentful when very wealthy benefactors donate huge sums of money to establish scholarship funds for children in poor households allowing them to attend parochial schools. It is felt that these generous scholarship gifts to children of the poor are undermining our nation’s public school system and that the wealthy are thereby “against” our public schools. [No one ever said that advocacy of nonsense can be prohibited!]

It is instructive to note that “pro-choice” positions are universally and indiscriminately advocated in certain quarters unless the choice is given to parents of poor children who wish to provide a decent education for their children in non-public schools. The separation of church and state argument is trotted out by them to argue against vouchers.

But the issue, you see, is not that public tax dollars are being given to churches, they are not. Those dollars are being given to individual citizens. These voucher dollars come from taxpayers and are thereby returned to taxpayers so they may freely elect how to spend them. The problem for many public school advocates is that certain of these taxpaying citizens may want to spend their education dollars elsewhere than in public schools. The troubling problem is that their monopoly is thereby threatened.

The U. S. Supreme Court’s application of the equal protection clause of the Fourteenth Amendment is such that certain citizens may not either receive special favors on the one hand or be discriminated against on the other using the criteria of race, religion, gender, age or national origin to discriminate. For instance, let’s say that the state legislature wants to give $1,000 to all citizens who have multicolored eyes so they can be fitted with a proper set of contact lenses giving them the appearance of “normal” eye coloring. Such a grant of money would not discriminate against citizens who have normal eyes colored the same. As for persons with dissimilarly colored eyes (such as one brown and one blue, or one hazel and the other green), the grant would give the same benefits to all citizens in that class regardless of their religious beliefs, age, gender or national origin, thus observing the strictures of the Fourteenth Amendment.

Educational vouchers give determined benefits to all citizens below a set level of household income indiscriminately, thus empowering them to make real choices as to where and under what conditions their children are educated. To deny that benefit to them because they choose to send their children to a religiously based school is to discriminate against them on the basis of religion. Such a denial of vouchers to them violates the Fourteenth Amendment of our Constitution. Persons advocating denial of vouchers to parents wanting to send their children to parochial schools are advocating a position that is unconstitutional and anti-choice. What is worse still is that they know it.