Reconsidering the constitutionality of vouchers

In "Vouchers as School Choice: An Analysis of Jackson v. Benson: The Milwaukee Parental Choice Program,"1 Elizabeth T. Lugg and R. Andrew Lugg criticize the Wisconsin Supreme Court for misreading U.S. Supreme Court's precedent and wrongly ruling that the amended Milwaukee Parental Choice Program (MPCP)

does not violate the Establishment Clause of the First Amendment.2 The MPCP was enacted in March 1990 to allow low-income children in the Milwaukee Public Schools (MPS) to attend any nonsectarian private school in the city.3 The program was capped at not more than one percent of MPS enrollment or about 1,000 students. The program was slow to reach its cap, primarily because the supply of available nonsectarian private schools was low. In 1994-95 only twelve nonsectarian private schools within the boundaries of the MSP chose to participate. Under pressure from Republican Governor Tommy Thompson to expand the range of choices and raise the cap, the legislature in 1995 eliminated the provision barring participation by religious private schools and raised the maximum number of eligible participants to fifteen percent of the MSP enrollment. The Wisconsin Supreme Court ruled favorably on both the original MPCP4 and the amended MPCP.5 The Lugg and Lugg article focuses on the second of these decisions.

Lugg and Lugg view the U.S. Supreme Court's 1973 ruling in Committee for Public Education and Religious Liberty v. Nyquist6 as central to their conclusion that the Wisconsin Supreme Court erred. Their assertion does not withstand careful scrutiny. Without making any judgment about the wisdom of its doing so or about the merits of vouchers, I believe a majority of the present justices on the U.S. Supreme Court is poised to uphold a publicly funded voucher program and would have done so had the Court seen fit to take the Milwaukee case in 1998.(7) In this Counterpoint, I discuss why I believe this to be so. I focus my attention on the latter portion of the Lugg and Lugg article, which discusses U.S. Supreme Court precedents in the context of the Wisconsin Supreme Court ruling.

In Nyquist, the Court was confronted with a New York statute that provided three types of aid to private elementary and secondary schools: direct grants for maintenance and repair of facilities at private schools serving a high percentage of low income students, a small tuition grant program for low-income parents, and a tuition tax deduction program for parents who did not qualify for the tuition grant program. By a 6-to-3 vote the Court declared that all three components violated the Establishment Clause. The problem was not that the programs lacked a secular purpose under the first of the three-part Lemon tests but that they advanced religion in violation of the second part. The maintenance and repair grants advanced religion because they were not restricted to non-sectarian purposes. Thus the majority noted that these grants could be used to renovate classrooms in which religion was taught and even to pay the salaries of employees to maintain religious buildings. Similarily, the tuition grants were not restricted to secular purposes but could be used to further the religious mission of the private school. The grants could only be used at private schools, the vast majority of which were Catholic. Justice Lewis F. Powell wrote for the majority:

[I]f the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. Whether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same.9

The Court viewed the tax deduction scheme as having little substantive difference from the tuition grant program. Thus, it too violated the Establishment Clause.

While the majority in Nyquist did not consider it necessary to consider the excessive entanglement part of the Lemon test, it commented in dicta about potential political divisiveness that aid to religious private schools could create: "[A]part from any specific entanglement of the State in particular religious programs, assistance of the sort here involved carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion."10

Much has changed since 1973. Not only are there new members on the Court, the Court also has modified its view on the proper relationship between state and religion. Nyquist itself carries the seeds of greater accommodation that bear fruit in later decisions. Justice Powell noted in a footnote that the Court was not deciding "whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted."11 For this reason, Powell observed, the Nyquist ruling did not lead to the conclusion that the G.I. Bill impermissibly advanced religion in violation of the Establishment Clause. This observation carries immense design implications, a point not lost on the Minnesota Legislature, which developed a tax deduction program in 1982 similar to the discredited program in Nyquist but allowing parents a deduction for expenses occurred in providing tuition, textbooks, and transportation for children in either public or private schools. Ten years after Nyquist, the Court declared the Minnesota program constitutional in Mueller v. Allen. 12

Contrary to Lugg and Lugg's assertion, Mueller is more than a "pigeonholed" decision among existing case law. It is a seminal ruling that signals the beginning of a major shift among a majority of Supreme Court justices regarding the relationship between government and religious institutions. Justice William H. Rehnquist, who wrote for the three dissenters in Nyquist, authored the majority opinion in Mueller. In a key passage, Rehnquist observed that "[t]he historic purposes of the [Establishment] [C]lause simply do not encompass the sort of attenuated financial benefits, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case."13 It did not trouble the majority that 95 percent of the private schools in Minnesota were sectarian and that the vast percentage of benefits under the tax deduction program flowed to parents whose children attended these schools.

Subsequently, five recent cases have built on the Mueller reasoning. First, in 1986, the Court ruled unanimously in Witters v. Washington Department of Services" that the Establishment Clause does not prevent the provision of vocational rehabilitation services to aid a blind student to pursue studies at a Christian college to become a minister. The Court emphasized that aid is given to the student who then transmits it to the public or private educational institution of the student's choice. Thus, the money is not in the form of impermissible direct state subsidy of religion. The Court was not troubled by the fact that the religious institution might use the assistance provided through the student for any purpose. The Court noted that there was no incentive for the student to use the money at religious institutions.

Second, in Zobrest v. Catalina Foothills School District15 the Court considered whether the Establishment Clause bars a school district from providing a sign-language interpreter under the federal Individuals with Education Disabilities Act (IDEA) to a deaf student attending a Catholic high school. Handicapped students, not sectarian schools, are the primary beneficiary of the sign-language interpreter, the Court ruled. The majority observed that "respondent readily admits, as it must, that there would be no problem under the Establishment Clause if the IDEA funds instead went directly to James' parents, who, in turn, hired the interpreter themselves."16 In dissent, Justices Blackmun and Souter sought to distinguish between the type of aid upheld in Mueller and the provision of the sign-language interpreter. They acknowledged, however, that "When government dispenses public funds to individuals who employ them to finance private choices, it is difficult to argue that government is actually endorsing religion."17

Third, in 1995 the Court ruled 5-to-4 in Rosenberger v. Rector & Visitors of the University of Virginia that a public university violates the Free Speech Clause of the First Amendment when it refuses to allow student activity fees to be paid to third party printers of a student religious newspaper.18 While much of the focus of the majority's attention was on viewpoint discrimination, the justices also held that providing such assistance does not violate the Establishment Clause because the institution remains neutral toward religion. Drawing upon the Mueller, Witters, and Zobrest precedents, the Court majority observed, "[w]e have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse."19

Fourth, in its 1997 Agostini v. Felton decision, the Court relied on Witters and Zobrest to overturn earlier rulings disallowing public school teachers to deliver compensatory education on sectarian private school campuses under a congressionally mandated program.20 Citing Witters, the majority noted in this direct aid case that a neutral government program that provides benefits without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted does not violate the Establishment Clause. In reaching its decision, the Court modified the Lemon test by collapsing the entanglement component into the primary effect component. The reconstituted Lemon test now appears to require a secular purpose and a primary effect that does not (1) result in government indoctrination, (2) define its recipients by reference to religion, and (3) create an excessive entanglement between government and religion.21

Finally, in 2000 the Court upheld the use of Chapter 2 federal funds in Mitchell v. Helms to underwrite the costs of computers, computer software, and other instructional materials in religious nonprofit private schools and, in the process, overruled two more decisions.22 Though a direct aid case similar to Agostini, Mitchell carries immense significance for the type of indirect aid that school vouchers represent. Writing for the four-justice plurality, Justice Clarence Thomas was particularly expansive in allowing the channeling of governmental aid to religious institutions, even if used for religious purposes, so long as the government program is neutral. The plurality-Thomas, Scalia, Rehnquist, and Kennedy-all but declared vouchers constitutional: "If numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment."23 Thomas added, "Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any government aid program and that could lead to a program inadvertently favoring one religion or favoring religious schools in general over nonreligious ones."24 Justice Sandra Day O'Connor agreed on this point in concurring in the judgment. Writing for herself and Justice Stephen Breyer, she observed:

[W]hen the government provides aid directly to the student beneficiary, that student can attend a religious school and yet retain control over whether the secular government aid will be applied toward the religious education. The fact that aid flows to the religious school and is used for the advancement of religion is therefore wholly dependent on the student's private decision.25

Even the dissenters acknowledged the critical distinction between aid that reaches religious schools "only incidentally as a result of numerous individual choices" and direct aid.26 Thus, at least six members of the present Court have expressed views that are consistent with the thrust of school vouchers.

Lugg and Lugg consider all these precedents, save the Mitchell v. Helms ruling, which was handed down after they had completed their article, in concluding that the U.S. Supreme Court would have declared the Milwaukee Parental Choice Program (MPCP) unconstitutional. I believe they were wrong then and-as of Mitchell-even more wrong now.

Lugg and Lugg advance essentially five arguments as to why the U.S. Supreme Court would have invalidated the MPCP. First, they assert that the Milwaukee program has the effect of advancing religion because it funds the education of children at religious private schools similar to the discredited New York tuition grant and tax deduction program. "The effect of the New York law," they write, "was to provide an incentive for parents to send their children to private schools, including religious private schools, and the Court ruled the state could not provide funds that have the effect of encouraging students to attend a religious school."27 The problem with this argument is that it ignores the pregnant footnote in Nyquist distinguishing the private school scheme struck down in that case from a broader range of options, as well as the subsequent decisions of the Supreme Court that have built on this observation. As the Wisconsin Supreme Court noted in its decision, parents in Milwaukee have a wide range of public and private options from which to choose: "The amended MPCP, in conjunction with existing state education programs, gives participating parents the choice to send their children to a neighborhood public school, a different public school within the district, a specialized public school, a private nonsectarian school, or a private sectarian school. As a result, the amended program is in no way `skewed towards religion.'"28

Second, Lugg and Lugg maintain that by exempting objecting students from religious activities at private schools, the MPCP constitutes hostility toward religion and thus violates the primary effect component of the Lemon test. The argument is not convincing. As now reconstituted, the primary effect criterion is triggered by (1) government indoctrination, (2) defining recipients by reference to religion, and (3) excessive government entanglement with religion. It is difficult to see how an opt-out provision transgresses any of these limitations. Further, it can be argued that government as speaker can control the content of its message. Thus, as in refusing to fund abortions for low-income families,29 the government has a right to condition participation by religious private schools in a voluntary publicly funded voucher program by requiring an optout for nonbelievers-all the more so since the government has a strong interest in avoiding the appearance of underwriting religious education and in protecting students from infringement on their religious freedom. As is clear from numerous Supreme Court direct aid cases, the state is on firm grounds when it directs its funding to the secular components of private schooling.30

Third, the Luggs assert that the Supreme Court would not find the MPCP to be a permissible general program of assistance because it limits the numbers of students who may participate and requires that they meet certain income requirements. "In order for the amended MPCP to be truly general it should apply to all students within the Milwaukee School District or, better yet," they write,"all students within the State of Wisconsin."31 They maintain that this would be necessary because of the majority's comment in Nyquist regarding the possible constitutionality of public assistance "made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted." They misconstrue the Court's comment about a program of general assistance. The justices were referring not to the character of the recipients but to the range of options made available to them. In Witters the Court unanimously upheld provision of vocational rehabilitation services to aid a blind student studying in a Christian college and in Zobrest permitted the state to provide a sign-language interpreter to a deaf student attending classes in a Catholic high school. Neither of these programs provided benefits for students outside the designated class. The programs were upheld not because they applied generally to all students but because recipients had a wide choice of public and private schools, thus attenuating the relationship between the state and religion. Were it otherwise, the state would be handicapped in its effort to target voucher programs to low income students trapped in poorly performing public schools as a way of furthering its own state constitutional responsibilities for a uniform system of education.32

Fourth, the Luggs focus on the excessive entanglement concern, noting that in Nyquist the majority commented on the potential for political strife over aid to religion that tuition grants may provoke. However, as Justice Clarence Thomas pointed out in the recent Mitchell v. Helms decision, the Court retreated from this concern after 1985.(33) No recent case involving either direct or indirect aid programs has focused on this aspect of the excessive entanglement concern, and it is unlikely that a majority of justices on the Supreme Court will do so in a future voucher ruling.

Finally, Lugg and Lugg express concern about continuing state surveillance over a voucher program to preclude funding for sectarian purposes. "The state would have to somehow ensure that no public moneys went to fund nonsecular courses, buildings, and texts," they maintain.34 While divertibility may have been a concern in the past, it is less so today. Repeatedly, and most forcefully in the Mitchell v. Helms decision, a majority on the Supreme Court has indicated that when funding is routed to parents and they, in turn, choose religious schools independently of the state, the use of the funds by the schools is irrelevant to the Establishment Clause. This being the case, the need for surveillance disappears. As Thurgood Marshall wrote for a unanimous Court in Witters.

It is well-settled that the Establishment Clause is not violated every time money previously in possession of the State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all of part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary.35

In the voucher context, the observation of Justice O'Connor in her Mitchell concurrence regarding divertibility of indirect funding is worth repeating. "The fact that aid flows to the religious school and is used for the advancement of religion is therefore wholly dependent on the student's private decision."36 As a consequence, "endorsement of the religious message is reasonably attributed to the individuals who select the path of the aid."37 Since O'Connor is often considered the swing vote in a future voucher case,38 her views may be particularly insightful as to an eventual outcome of a voucher challenge before the high court.

In sum, contrary to the Luggs' central contention, it seems quite clear that the U.S. Supreme Court is poised to uphold a publicly funded voucher program that adheres to the central thrust of footnote 38 in the Nyquist decision: that parents who receive vouchers must have a wide range of public and private schools from which to choose. Where wide choice is provided, later Supreme Court precedents strongly suggest that the indirect nature of the assistance moots most of the concerns that would accompany a direct aid program. Thus, had the U.S. Supreme Court taken up the Milwaukee school voucher program before Mitchell v. Helms, it is quite likely that they would have affirmed the decision of the Wisconsin Supreme Court. After Mitchell v. Helms, the assertion can be made with more confidence.

FOOTNOTE

1. Elizabeth F Lugg and R. Andrew Lugg, Vouchers as School Choice: An Analysis of Jackson v. Benson -The Milwaukee Parental Choice Program, 29 J.L. & Educ. 175 (2000).

2. The Wisconsin Supreme Court viewed the state constitution's religion clause, art. I, 18, as coextensive with the federal Constitution and decided the case on the basis of the latter. Jackson v. Benson, 578 N.W.2d 602, 620-621 (Wis.), cert. denied, 525 S.Ct. 997 (1998).

3. For a complete discussion, see JOHN F. WITTE, THE MARKET APPROACH To EDUCATION: AN ANALYSIS OF AMERICA'S FIRST VOUCHER PROGRAM (2000).

4. Davis v. Grover, 480 N.W.2d 460 (Wis.1992) (upheld original MPCP against a number of challenges on state constitutional grounds).

5. Jackson v. Benson, 578 N.W.2d 602 (Wis.), cert. denied, 525 U.S. 997 (1998). 6. Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).

FOOTNOTE

7. It is not surprising that the high court chose not to take the Milwaukee case. School voucher programs were in their infancy in 1998 and untested in federal court. It appears likely that the justices passed on the opportunity until lower courts have had an opportunity to wrestle with the issue. Since 1998. a number of state supreme and lower federal courts have addressed school voucher or voucher-like programs. Compare Kotterman v. Killian, 972 P.2d 606 (Ariz.), cert. denied, 528 U.S. 921 (1999) (tax credit for contributions to nonprofit organizations that, in turn, make the money available for scholarships at religious and nonreligious private schools does not violate either the U.S. Constitution's Establishment Clause or the state constitution's religion clauses); Bush v. Holmes, 767 So.2d 668 (Fla. Dist. Ct. App. 2000) (state can fulfill its constitutional mandate to provide a uniform system of education through a voucher program), with Strout v. Albanese. 178 F.3d 57 list Cir.), cert. denied, 528 U.S. 931 (1999) (inclusion of religious schools in a private school tuition reimbursement program violates the U.S. Constitution's Establishment Clause and their exclusion does not violate parent's free exercise of religion); Bagley v. Raymond Sch. Dept., 728 A.2d 127 (Me.), cert. denied, 528 U.S. 947 (1999) (same as Strout); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio1999) (Cleveland voucher program struck down for violating the state constitution's one-subject rule for legislative bills; court opined that program does not violate either the state or federal constitution's anti-establishment of religion clauses); Simmons-Harris v. Zelman. 234 F.3d 945 (6th Cir. 2000) (Cleveland voucher program violates the Establishment Clause of the First Amendment)' Chittenden Sch. Dist. v. Vermont Dept. of Educ., 738 A.2d 539 (Vt.), cert. denied sub nom. Andrews v. Vermont Dept. of Educ., 528 U.S. 1066 (1999) (inclusion of religious schools in a private school tuition reimbursement program violates the state constitution's compelled purpose provision). Note that in both the Bagley and the Chittenden decision, the supreme courts of Maine and Vermont, respectively, left the door open to a properly constructed voucher program. The Supreme Judicial Court of Maine observed that "While it may be possible for the Legislature to craft a program that would allow parents greater flexibility in choosing private schools for their children, the current program could not easily be tailored to include religious schools without addressing significant problems of entanglement or the advancement of religion. It is up to the Legislature, not the courts, to determine whether and how to attempt to structure such a program" 728 A.2d at 147. The Supreme Court of Vermont commented that "Schools to which the tuition is paid by the district can use some or most of it to fund the costs of religious education, and presumably will. We express no opinion on how the State of Vermont can or should address this deficiency should it attempt to craft a complying tuition-payment scheme." 738 A.2d at 563.

8. The three components of the Lemon test include (1) a secular legislative purpose, (2) a primary effect that neither advances nor inhibits religion, and (3) no excessive governmental entanglement with religion. A challenged statute or policy must pass all three components to be declared constitutional. The test evolved over time but was first clearly enunciated in Lemon v. Kurt,-Man, 403 U.S. 602 (1971), from whence it gets its name. As noted infra, the Court recently modified the test to allow greater accommodation of religion in public life.

FOOTNOTE

9. 413 U.S. at 786. 10. Id. at 794.

11. Id. at 783 n.38.

FOOTNOTE

12. Mueller v. Allen, 463 U.S. 388 (1983). 13. Id. at 400.

14. Witters v. Washington Dept of Services, 474 U.S. 481 (1981). 15. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

FOOTNOTE

16. ja at 13 0.11. I.ut: :MA4 at, 22-23

IlL rsV. Rr ecW & &vu-Of 00 Univ. of Yugin* 515 us. 819(1995). to. Id. at $39.

20. ASo" v.ti Fekm 521 U.S. 203 (1997) q"ak ot'#ing Swot Dist: of Gd Rapids v. Ball, 473 U-S. 373 (IM), aad ovemiling Apdlw v. Pdtm 4713U.S. 33(1485 and og - 4?3.f7.s: 402 ti98S).

21. 521 U. at 234.

FOOTNOTE

22. Mitchell v. Helms, 120 S.Ct. 2530 (2000) (overruling Meek v. Pittinger, 421 U.S. 349 (1975), and Wolman v. Walter, 433 U.S. 229 (1977)).

23. Id. at 2541.

24. Id. Justice Thomas added that the distinction between "direct" and "indirect" government aid to religious institutions is muted by reliance on the principle of private choice. "If aid to schools, even `direct aid,' is neutrally available and, before reaching or benefitting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any `support of religion."' Id. at 2544.

25. Id. at 2559 (emphasis in original).

26. Id. at 2584. At the same time, the three dissenters noted the relevance of the possibility of direct subsidies to religious schools, "even where they are directed by individual choice." Id. 2583-2584 n.8.

FOOTNOTE

27. Lugg & Lugg, supra note 1 at 189.

28. Jackson v. Benson, 578 NW.2d 602, 617-618 (Wis.), cert. denied, 525 U.S. 997 (1998). In 2000, the U.S. Court of Appeals for the Sixth Circuit reached the opposite conclusion regarding the Cleveland voucher program, striking the program down by a two to one vote as impermissibly tilted toward aiding religion. Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000). Over a pointed and emotional dissent, the majority declared that because no suburban school district chose to participate in the program and because the size of voucher precluded participation by nonsectarian private schools, the primary beneficiaries were religious schools in Cleveland. Thus, operationally, the program was closer to the discredited tuition grant program in Nyquist than the approved tax deduction program in Mueller. Citing the range of options available to Cleveland parents as the Wisconsin Supreme Court justices had done and the indirect nature of the aid, the dissent argued-persuasively, in my view-that the line of cases beginning with Mueller in 1983 and concluding with Mitchell in 2000 should govern the case. The angry rhetoric that characterizes the last portion of the majority opinion and much of the dissent reflects the emotion that underlies the voucher issue. It is quite possible that this case will end up before the U.S. Supreme Court.

FOOTNOTE

29. Rust v. Sullivan, 500 U.S. 173 (1991).

30. See, e.g., Mitchell v. Helms, 120 S.Ct. 2530 (2000) (loan of secular, neutral, and nonideological educational materials and equipment under Chapter 2 to religious private schools does not violate the Establishment Clause); Agostini v. Felton, 521 U.S. 203 (1997) (permitting public school teachers to deliver secular remedial education to disadvantaged students under Title I of the Elementary and Secondary Education Act on religious private school grounds does not violate the Establishment Clause): Board of Educ. of Central Sch. Dist. No. I v. Allen, 392 U.S. 236 (1968) (loan of secular textbooks to students in religious private schools does not violate the Establishment Clause).

31. Lugg & Lugg, supra note I at 190.

32. Neither the Wisconsin nor Ohio supreme courts were troubled by the limitation of their state's respective voucher program to the urban areas of Milwaukee and Cleveland, respectively. In both cases, the courts found the experimental nature of the programs, coupled with the deplorable plight of the urban public

FOOTNOTE

schools, justified the targeted programs. As the Ohio Supreme Court noted in rejecting the claim that program violated the state constitution's uniformity clause, "The General Assembly had a rational basis for enacting the School Voucher Program, which relates to a statewide interest, and for specifically targeting the Cleveland School District, which is the largest in the state and arguably the one most in need of state assistance." SimmonsHarris v. Goff, 711 N.E.2d 203, 24 (Ohio 1999). Originally, the program was specifically limited to the Cleveland district. However, after an adverse decision by the lower court, the legislature amended the law to apply to any school district that has been or is under federal court order. The change satisfied the Ohio Supreme Court, even though at the time of the litigation, the voucher program operated only in Cleveland. It also is noteworthy that state courts have recognized that uniformity clauses in their state constitutions do not necessarily preclude a legislature from choosing alternatives to public schools. The Wisconsin Supreme Court recognized as much in Jackson v. Benson, observing that the uniformity provision "provides not a ceiling but a floor upon which the legislature can build additional opportunities for school children in Wisconsin." 578 NW. at 628. The Florida court of appeals noted in overturning the trial court's decision striking down the Florida voucher program, "Contrary to the conclusion of the trial court, and the argument advanced by appellees, article IX, section 1 [the uniformity clause of the state constitution] does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system." Bush v. Holmes, 767 So.2d 668, 675 (Fla. Dist. Ct. App. 2000). The Pennsylvania Supreme Court ruled that the state constitution's requirement for the legislature to provide "a thorough and efficient system of public education" did not constitute a bar against a school district's contracting out the operation of a low performing school to a private corporation. School Dist. of Wilkinsburg v. Wilkinsburg Educ. Ass'n., 667 A.2d 5 (Pa. 1995). For a discussion of the vagaries of state constitutional law in the context of publicly funded school voucher programs, see Frank R. Kemerer, State Constitutions and School Vouchers, 120 Ed. Law. Rep. [1] (Oct. 2, 1997).

33. Mitchell v. Helms, 120 S.Ct. 2530, 2575 (2000). The three dissenters in Mitchell concurred with this view. Writing for himself and Justices Stevens and Ginzburg, Justice David Souter agreed that the Court "may well have moved away from considering the political divisiveness threatened by particular instances of aid as a practical criterion for applying the Establishment Clause case by case" but believed it to continue as an important consideration behind the origin of the Establishment Clause. Id. at 2575 n.2.

34. Lugg & Lugg, supra note I at 191.

FOOTNOTE

35. 474 U.S. at 486-487.

36. 120 S. Ct. at 2559.

37. Id.

38. See Jesse H. Choper, Federal Constitutional Issues, in SCHOOL CHOICE AND SOCIAL CONTROVERY 235 (Stephen D. Sugarman and Frank R. Kemerer, eds., 1999).

AUTHOR_AFFILIATION

FRANK R. KEMERER*

AUTHOR_AFFILIATION

*Frank R. Kemerer, A.B., M.A., Ph.D., Stanford University, is Regents Professor of Education Law and Director of the Center for the Study of Education Reform at the University of North Texas. Co-principal investigator of a four-year study of public and private school choice in San Antonio funded in part by the U.S. Department of Education, he has written for many years about legal issues involving school choice, privatization, and vouchers.