School Vouchers

This pathfinder explores legislation and cases concerning school vouchers. School

vouchers is a hot topic among politicians, educators, and parents of school age students. Since

politicians are informed of the legalities of school vouchers, the audience for this pathfinder is

educators and parents. The state of Pennsylvania has unsuccessfully tried to pass legislation

concerning school vouchers. The pathfinder suggests sources to other states that have enacted

such laws and sources for locating the results of state court cases and the United States Supreme

Court.

School vouchers allow state government money to support the partial payment of private

school tuition. Vouchers can be in the form of tax credits or simply a tuition voucher to the

private school. The controversy is that government money supporting private schools deprives

public students and public schools of funds needed to provide adequate resources to educate the

students. With the 2002 P.L. 107-110, popularly known as No Child Left Behind, schools and

state governments are under pressure to improve student performance through depriving those

schools not meeting NCLB standards of government funding or being taken over by the state.

On the other hand is the argument that students deserve school choice and school

vouchers as an option for poor performing schools. If the school voucher is used towards

religious school education, the state statutes supporting voucher laws may be violating not only

the state’s own constitution, but the US Constitution.

School vouchers may not be the answer to improving low performing schools.

According to studies conducted by Keith Curry Lance, Stephen Krashen, and Stanford

University’s Center for Research on Education Outcomes, a certified librarian with sufficient

2 Diane Wollaston

resources can increase learning for even the poorest students. Krashen further argued that

poverty, not school quality, causes poor student performance. Addressing poverty may be the

key to improving academic performance and not school vouchers.1

A good starting point for researching the constitutionality of school vouchers are free

sites including the Government Publication Office site and the Supreme Court site. Search the

Supreme Court site using the Opinions or Docket number features. Searching GPO for “school

vouchers” produces many hits on the subject, including Congressional Record statements that

both support and oppose school vouchers. Examples include Newt Gingrich’s September 18,

1997 remarks (143 Cong. Rec. E1798) , Sen.. Mosley-Braun’s November 9, 1997 remarks (143

Cong. Rec. S12272), and Sen. Eleanor Holmes Norton’s remarks April 5, 2011 (157 Cong. Rec.

E637).

Additional sources to search include state constitutions, state statutes, and state codes, as

well as state court cases located through standard search engines or Findlaw.com. Westlaw and

LexisNexis are excellent sources in addition to government web sites such as

http://www.gpo.gov, http://www.supremecourt.gov/, http://www.gpo.gov/fdsys, and individual

government agency sites. Various legal blogs such as http://www.jurist.org/,

http://www.scotusblog.com, and http://www.thepocketpart.org/ are helpful. The most useful

search terms were “school vouchers.”

When searching Westlaw or LexisNexis, choose a database from the directory such as

Federal cases and statutes. Check footnotes cited by located sources for more sources.

1 Traska, M. R. (2013, June). The viod in charter schools. American Libraries, pp. 26-30.

3 Diane Wollaston

Shepardize sources to determine the authority of cases and statutes. I found the Zelman case

through Westlaw and used the footnotes to find the other three important school voucher cases.

Reading about the cases led me to the state statutes that were cited in the text of the Westlaw or

LexisNexis footnotes.

For Supreme Court cases, the OYEZ site is a good place to begin. This site lists the case

docket number, the opinion citation, the court’s decision, and a summary of the case. With this

information a search in Westlaw and LexisNexis produces additional information found in notes

and cited cases. The Supreme Court site offers supplementary information once the docket

number has been located using OYEZ. Search for “school vouchers.”

I began my research by locating the landmark US Supreme Court cases of Zelman v.

Simmons-Harris, Lemon v. Kurtzman, Locke v. Davey, and Mueller v. Allen. These cases were

challenged according to the First Amendment Establishment Clause. While two of these cases

support vouchers according to the US Constitution, two of the others conclude that school

vouchers or other religious interference by a state over school matters violates the Constitution.

The constitutionality issue will depend on each state’s constitution, the federal constitutionality

of school vouchers under the Establishment Clause, and the support of the public in getting the

voucher programs passed or rejected.

Lemon v. Kurtzman (1970) established a three part test for laws determining if a statute

violates the religious Establishment Clause of Amendment I of the US Constitution. To be

declared constitutional under the Establishment Clause the law must have a secular legislative

purpose, the statute must not advance or inhibit religion, and the statute must not “foster

excessive government entanglement with religion.”2 The Lemon test is the basis upon which

2 http://www.oyez.org/cases/1970-1979/1970/1970_89

4 Diane Wollaston

Zelman v. Simmons-Harris, Locke v. Davey, and Mueller v. Allen were decided. These cases

can be located using LexisNexis and Westlaw’s federal case features.

According to the Zelman Case the respondents challenged the Ohio Pilot Project

Scholarship Program that attempts to give students of low performing Cleveland schools the

option of school vouchers, Ohio Rev. Code Ann §§3313.974-3313.979, as violating the

Establishment Clause of the Constitution. The Supreme Court reversed the decision of the US

Court of Appeals for the Sixth Circuit and stated that the Ohio Program did not violate the

Establishment Clause. The case was decided on June 27, 2002. State statutes can be located by

searching the Internet for “state constitutions” or by using the state name and “constitution.”

Findlaw is a helpful law search engine.

In addition to researching the two cases described, I suggest researching the other two

landmark Supreme Court cases, Locke v. Davey, and Mueller v. Allen. Both cases challenge state

statutes which can be located through a search engine using the terms “law or statutes” and the

state name. State websites usually contain the ability to search for specific state laws.

Subscription databases are good sources for locating peer reviewed articles. Most of the

articles for this pathfinder were found through Drexel Libraries, Westlaw, and LexisNexis.

Westlaw and LexisNexis allow for the searching of law review articles, statutes, journal articles,

encyclopedia entries, and treatises.

A surprising source may be legal blogs. One argument supporting school vouchers from

the Yale Law Journal3, accessed through the Pocket Part Blog, is to maintain accountability of

public schools. Families determine which schools their child(ren) will attend. According to the

article vouchers promote school choice which in turn promotes school accountability and

3 Stephen J. Choi and Jill E. Fisch. How To Fix Wall Street: A Voucher Financing Proposal for Securities

Intermediaries. 113 The Yale Law Journal 314(2003).

5 Diane Wollaston

competition which will lead to better schools. Blogs are a useful source as many link to

authoritative articles, such as the Yale Law Journal article. Another useful source for articles

and abstracts is Google Scholar.

Sources

The following sources discuss school vouchers, the laws, and the court cases:

Constitutional Provisions Federal or State:

1. USCS, Constitution, Amendment 1(Lexis Nexis)

The first amendment guarantees the right of freedom of religion. “Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress of grievances.” The text of the

US Constitution can also be found on the Internet through a simple search for “US

Constitution.”

2. U.S.C.A. Const. Amend. I-Religion (Westlaw)

Check footnotes.

3. Cornell University Law School, Constitutions, Statutes, and Codes (visited May 30, 2013) at http://www.law.cornell.edu/statutes.html.

Search state Constitutions for Establishment Clauses.

Statutes, Federal or State

1. 20 USCA § 6301 (2002).

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While the No Child Left Behind Act 2002 does not specifically mention school vouchers,

it encourages schools to consider creative options to improve student and school

performance. This federal law can be accessed through GPO/FDsys, LexisNexis, and

Westlaw. http://www.gpo.gov/fdsys/pkg/PLAW-107publ110/pdf/PLAW-

107publ110.pdf

2. Ohio Rev. Code Ann §§3313.974-3313.979 (1999).

This is the Ohio Code for the Pilot Project Scholarship Program challenged in the Zelman

case. The code can be found through the Ohio state website or

http://codes.ohio.gov/orc/3313

3. RI ST § 16-51-1.

The Rhode Island statute has been repealed. This legislation was challenged in the

Lemon v. Kurtzman Supreme Court Case. According to the Supreme Court, the “Rhode

Island program, consisting of salary supplements paid to teachers of secular subjects in

nonpublic schools, operated to the benefit of parochial schools constituting integral part

of the religious mission of the church and in which the recipient teachers were under

religious control and discipline, and involved necessity of comprehensive and continuing

state surveillance to insure obedience to restrictions as to the courses which could be

taught, the materials which could be used.” This information was found through

Westlaw and the Rhode Island state site. The statute and case was cited in the Zelman

case.

4. 24 P.S. §§ 5601-5609

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According to the Supreme Court, “The Pennsylvania program, involving reimbursement

of nonpublic schools for teachers' salaries, textbooks, and instructional materials used in

the teaching of specific secular subjects, provided direct aid to church schools and

intimate and continuing relationship arising from state's post audit power to inspect and

evaluate schools' financial records and to determine which expenditures were religious

and which were secular, and where both posed danger of divisive political activity and

possibility of progression leading toward the establishment of state churches and state

religion.” This statue was challenged in Lemon v. Kurtzman and sited in Zelman. This

legislation has since been repealed according to the PA State website and Westlaw. The

repealed legislation can be located through the Commonwealth of Pennsylvania;

Legislative Reference Bureau.

Administrative Regulations, Federal or State

1. Education Options in the States: State Programs that Provide Financial Assistance for

Attendance at Private Elementary or Secondary Schools (2009).

This report from the US Department of Education address how states can fund voucher

programs through tax sponsored scholarships and tax credits, among other options. This

document can be found at the Department of Education website.

Cases, Federal or State

1. Zelman v. Simmons-Harris, 2000 U.S. Briefs 1751 (U.S. S. Ct. Briefs 2001)

The US Supreme Court held that the Ohio Program did not violate the Establishment

Clause of the Constitution. This information can be found on LexisNexis.

2. 536 U.S. 639, 122 S.Ct. 2460.

Zelman v. Simmons-Harris Supreme Court Decision. Located on Westlaw.

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3. United States Supreme Court Site, Zelman.v. Simmons-Harris (visited May 30, 2013), at http://www.supremecourt.gov/oral_arguments/argument_transcripts/00-1751.pdf

This is the transcript of the oral arguments.

4. 153 L Ed 2nd, US Supreme Court Reports.

Zelman case, found using LexisNexis

5. Lemon v. Kurtzman, 403 U.S. 602 (1971)

A US District Court for the District of Rhode Island ruled that a RI statute and the US

District Court for Eastern District of Pennsylvania dismissed the complaint against a

similar PA statute. The Supreme Court declared both statutes unconstitutional. RI

statute granted salary supplements to non-public school teachers. This information can

be found on LexisNexis, Westlaw, supremecourt.gov, and OYEZ

6. Locke v. Davey 540 U.S. 712 (2004)

Washington State’s Promise Scholarship, created by the legislature in 1999 does not

violate the Constitution by refusing to grant scholarship money funding religious

theological college educations. This information can be found on LexisNexis, Westlaw,

United States Report 540 October Term 2003

(http://www.supremecourt.gov/opinions/boundvolumes/540bv.pdf), and OYEZ.

7. Mueller v. Allen 463 U.S. 388 (1983)

Tax deductions for parochial schools, under the Minnesota statute (§ 290.09(22)) were

declared constitutional. This information was located on Westlaw, the Minnesota state

cite, and OYEZ.

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Law Review and Legal Periodical Articles

1. Amelia A. Ragan, The Universal School Vouchers Roadblock: Constitutional and Public Policy Barriers to School Choice, 3 John Marshall Law Journal 423 (2010).

This article argues that school vouchers are unconstitutional and violate the

Establishment Clause of the Constitution by allowing tax funds to aid religious private

schools. The author examines the Zelman decision that decided that Ohio’s Pilot Project

Scholarship Program for low-performing schools was neutral in respect to the

Establishment Clause. This article can be found through Westlaw, 41 JLEDU 709 or

HeinOnline.

2. Stephen Messer, School Vouchers and the Road to Academic Excellence after Bush v. Holmes, 17 Georgetown Journal on Poverty Law and Policy 33 (Winter, 2010).

School vouchers funded by corporate tax deductions are constitutional according to

Florida’s constitution. However, “there was no difference in the graduation rates

between the students who won the lottery and moved on to the new schools and those

who lost the lottery and were left behind in failing schools.” This article was found in

LexisNexis, 17 Geo. J. Poverty Law & Pol'y 33.

3. Margaret Azhar, Symposium on the Rise and Fall of the Middle Class: Note: Struggling Middle Class: Merit-Based Scholarships meet School Vouchers, 24 ND J.L. Ethics and Pub Pol’y 339 (2010)

The author believes that merit-based school vouchers are similar to merit-based

scholarships awarded to college students. She examines the changes in the Supreme

Court’s decisions in regards to the Establishment Clause. This article was located

through LexisNexis. It can also be located on HeinOnline.

4. Prohibition on Sending Private Schools Public Funds Dooms Voucher Plan. School Bulletin

(May 2009) Vol. 13 No. 1.

10 Diane Wollaston

This case examines the Arizona case of Cain v. Home, CV-08-0189-PR (Ariz. 2009).

This article can be found on LexisNexis using the search terms "school vouchers" and

date geq (05/21/2008) and Combined Source Set 1.

Legal and General Newspaper Articles

1. The Washington Post Thinks School Vouchers are a ‘Bad Idea’. March 28, 2013.

This article was located through LexisNexis under the search terms, HEADLINE(school

voucher) and date geo (05/21/2008), Newsbusters.org. The database used was US

NEWS, ALL.

2. Arkansas Times. School Vouchers don’t Work. March 30, 2013.

This article was located through LexisNexis under the search terms, HEADLINE(school

voucher) and date geo (05/21/2008) http://www.arktimes.com. The database used was US

NEWS, ALL.

3. Religion Clause, Louisiana Supreme Court Invalidates State School Voucher Program (2013).

This article was located through LexisNexis under the search terms, HEADLINE(school

voucher) and date geo (05/21/2008). The database used was US NEWS, ALL.

4. American Clarion, School Voucher Ruling Supports Religious Freedom. March 31, 2013

This article was located through LexisNexis under the search terms, HEADLINE(school

voucher) and date geo (05/21/2008). The database used was US NEWS, ALL.

http://americanclarion.com

Interdisciplinary Periodical Articles

1. Simon Brown. Pennsylvania Railroad: Powerful Right-wing Forces are trying to Engineer Voucher Subsidies for Religious Schools in the Keystone State. Church & State 64.11 (2011).

11 Diane Wollaston

This article, published by Americans United for Separation of Church and State,

http://www.au.org/ , criticizes Governor Corbett’s stance supporting school vouchers.

This article can be located through the Academic OneFile subscription database or

through the www.au.org website.

2. Maria R. Traska. The Void in Charter Schools. American Libraries, (2013, June).

This article is available through membership to the American Library Association and its

magazine, American Libraries. This periodical can be found in many academic libraries

that offer MSLIS degrees.

ALR Annotations and Legal Encyclopedia Articles

1. Aaron E. Schwartz, Dusting off the Blaine Amendment: Two Challenges to Missouri’s Anti-Establishment Tradition, 73 Missouri Law Review 129 (Winter, 2008)

Missouri established the Blaine Amendment, MO. CONST. art. IX, § 8, as part of the

1875 and 1945 Missouri Constitution to withhold state assistance from religious

institutions. Tax measures are also prohibited from granting tax credits to support

religious schools. The article discusses the Blaine Amendment in relation to the Zelman

case and concludes that the Blaine Amendment continues to prohibit the mixture of

church and state. This article was located through Westlaw and HeinOnline. 73 MOLR

129, 73 Mo. L. Rev. 129

2. Dana Eberle-Peay, The Federal Constitution Versus a State Constitution: Revisiting Zelman v. Simmons-Harris in Indiana, 41 Journal of Law Education 709 (October, 2012)

This article argues that the Indiana State law school voucher program should be declared

unconstitutional at the state level based on individual state constitutions. Indiana citizens

filed a law suit, Meredith v. Daniels, the day Indiana’s Choice Scholarship program took

12 Diane Wollaston

effect on July 1, 2011 stating the law violated Article 1, §§ 4 and 6, of the Indiana

Constitution. The article examines the flaws of the Zelman case. The footnotes for the

article led me to explore further Article 1 of the Indiana Constitution. This article was

located through Westlaw but can also be accessed through LexisNexis. 41 JLEDUC 709,

41 J.L. & Educ. 709

3. Jason S. Marks, Spackle for the Wall? Public Funding for School Vouchers After Locke v. Davey, 61 Journal of the Missouri Bar 150 (May-June, 2005)

This article discusses the consistencies in the Supreme Court decisions regarding the

interpretation of the Establishment Clause and examines the controversy surrounding the

Locke v. Davey decision. The footnotes lead to other cases such as Bush v. Homes and

Article I, section 2 of the Florida Constitution and Eulitt v. Maine Dept. of Ed., 386 F.3d

344 (1st Cir. 2004). This article was located through Westlaw, 61 J. Mo. B. 150

Books and Looseleaf Services

1. Diane Ravitch, The Death and Life of the Great American School System: How Testing and Choice are Undermining Education (2010).

A former President George W. Bush education advisor, Diane helped design the No

Child Left Behind legislation. After evaluating its effects on schools, she is now an

opponent of the legislation and she also opposes school vouchers. This book can be

found at local and academic libraries, as well as book stores.

Congressional Record

1. 149 Cong. Rec. S5850-01, 2003 WL 21025386 (Cong.Rec.)

Senator Kennedy discusses an article on the Senate floor titled, “What Some Much-Noted

Data Really Showed about Vouchers” printed in that day’s New York Times. Kennedy

13 Diane Wollaston

states that research has not proven that private school vouchers work and therefore,

should not be supported by Congress. The Congressional Record can be obtained

through gpo.gov, Thomas.loc.gov, USA.gov, FDsys, or Westlaw.

Internet Sites/Sources

1. Legal Information Institute, State Education Codes (visited May 30, 3013), at

http://www.law.cornell.edu/wex/table_education

Choose a state and search for “school voucher” education codes and/or statutes. These

sites were mentioned in Drexel’s Legal Research class.

2. Law Librarian’s Society of Washington, DC, State Legislatures, State Laws, and State

Regulations: Website Links and Telephone Numbers (visited May 29, 2013), at

http://www.llsdc.org/state-leg/

Choose a state and search for “school voucher” education codes and/or statutes. These

sites were mentioned in Drexel’s Legal Research class.

3. Social Science Research Network (visited May 29,2013), at http://www.ssrn.com/

Search for “school vouchers.”

Organizations or Lobby Groups

1. Religious Private Schools National Center for Educational Statistics (visited May 31, 2013), at http://nces.ed.gov/surveys/pss/tables/table_2008_02.asp

I found this site searching the Internet for “school voucher groups” or “school voucher

and organizations.”

2. National Education Association (visited June 2, 2013), at http://www.nea.org/

Search for “school vouchers” once you access this site. This is a well-known

organization.

14 Diane Wollaston

3. National Federation of Teachers, (visited June 2, 2013), at http://www.aft.org/

Search for “school vouchers” after accessing this site. This is a well-known organization.

4. National School Boards Association, Voucher Strategy Center (visited June 2, 2013), at http://www.nsba.org/novouchers

Search for “school vouchers” after accessing this site. This is a well-known organization.

5. Americans United, Church and State, School Voucher Avalanche; House Speaker Boehner, Right-Wing Allies Begin National Crusade for Taxpayer Subsidies of Religious and Other Private Schools (visited June 2, 2013), at https://www.au.org/church-state/february-2011-church-state/featured/school-voucher-avalanche

I found this site searching the Internet for “school voucher groups” or “school voucher

and organizations.”

6. School Choice Indiana (visited June 2, 2013), at http://www.schoolchoiceindiana.com/

I found this site searching the Internet for “school voucher groups” or “school voucher

and organizations.”

Blogs

1. The Yale Law Journal, (visited May 28) at, http://www.thepocketpart.org/ and

http://www.yalelawjournal.org/pdf/113- 2/Choi%26FischCORRECTEDFINAL.pdf

Search terms used, “school vouchers” to access articles. This blog was mentioned in

Drexel’s Legal Research class.

2. Diane Ravitch’s Blog, Vouchers Don’t Work: Evidence from Milwaukee (visited March 29,

2013), at http://dianeravitch.net/2013/03/29/vouchers-dont-work-evidence-from-

milwaukee/

I found this blog while searching for Ravitch’s book, The Death and Life of the Great

American School System: How Testing and Choice are Undermining Education. Search

the blog for “school vouchers” for additional postings.

15 Diane Wollaston

3. Law & Daily Life Blog, School Vouchers; Are they Legal? (visited June 2, 2013) at,

http://blogs.findlaw.com/law_and_life/2011/07/school-vouchers-are-they-legal.html

The Findlaw Blog was mentioned in Drexel’s Legal Research class. Search the blog for

“school vouchers” for additional postings.

Grade: Hi Diane,

You used a nice selection of search sources, search terms and strategies for your pathfinder on school

vouchers. You located legal materials in all of the key categories of legal materials that are relevant to your topic.

Your grade for the pathfinder is "A".

I look forward to seeing your final exam.

Please let me know if you have any questions.

Regards,

Ed