The history of the voucher system can be traced back 200 years. It was in 1972 that the Alum Rock School District experimented with a voluntary voucher system. Parochial schools chose not to participate because the California legislature was reluctant to pass legislation allowing public money to fund an experiment with the potential of running afoul of the First Amendment. 1 In the 70's the Family Choice initiative authored by John Coons and Steve Sugarman led the way in the voucher movement among states.2 Educational vouchers have been defined as,” certificates issued by the government to the parents and parents in return would give certificates to the school of choice the school then would turn in the certificate to the government for cash.”. 3 Currently the Senate 1889 Child Care Bill, s-5 providing child care vouchers to religious day care centers has brought to light that if passed, could lead to vouchers to school age children.4

The Chubb and Moe proposal is the voucher system revisited. One of the major philosophies behind their model is to allow parents the freedom of choice based on religious, political, and academic preferences. 5 The Chubb and Moe proposal of a market driven choice system reveals an inherent weakness when it comes to constitutional law.

Chubb and Moe have placed an enormous amount of faith in private schools to cure the American educational woes. Chubb and Moe propose that the state will set up offices through which money in the form of educational vouchers from local, state, and federal sources will flow to public and private schools. 6

    " Existing private schools will be among those eligible to participate, and their participation should be encouraged, because they contribute to a ready supply of effective schools."7
The state will do nothing to determine internal structuring policies. The schools will operate "as it sees fit"8 The state will give total authority to the schools to determine its own governing policies. Chubb and Moe suggest it could be run by teacher's unions, principals, parent committees, "or it may do something completely different..." Their proposals imply that they want legislatures to go from being mandatory to advisory.9 This directs their educational reforms directly at the judicial system and constitutional law.

In order to survive constitutional attack of the Establishment Clause of the First Amendment, Chubb and Moe's proposals must pass the three prong test of 1) being secular in purpose, 2) must neither inhibit or advance religion, and 3) must not foster excessive entanglement between government and religion.10

Chubb and Moe do not limit spending of federal money to secular purposes. Historically, courts have determined that if the voucher contains no regulation for the money to be spent for secular purposes, then the voucher is invalid. 11 Chubb and Moe state that any educational institution public or private will have access to the voucher system, so the inclusion of religious schools is clearly indicated.12 One critic, Steve Stovic, superintendent of Fairborn School district in Dayton, Ohio, warns that the Chubb and Moe proposal allowing schools to choose their population will create a climate for church related school to develop their own exclusive admissions policies.13 Chubb and Moe's proposals will undoubtedly capture the support and interest of parents of parochial students.

In consideration of the three prong test establishing constitutional requirement, failure to pass any one test will invalidate the proposals. 14

Because the courts have defined secular requirements in a broad sense in past cases, the Chubb and Moe model terminology seems to be expansive enough that it would probably pass the secular purpose requirements.15

In recent years the California legislature has opposed the voucher systems holding that it is unconstitutional because it possibly violates the Establishment Clause.16 Even though the federal money is given to parents, Chubb and Moe's proposals are not immune to the primary affect of advancing religion. In the past court cases having the greatest significance using the primary affect test involved tuition reimbursements, the courts have clearly indicated that the issuing of aid to parents does not preclude the Court from challenging the state's plan.17 Thus, passing the primary affect test would be tenuous, and the proposals must still pass the excessive entanglement test, the last step of the Court's examination.

In Everson v. Board of Education clear guidelines were established for the use of federal money for religious institutions. Though Everson approved the use of federal money for transportation of parochial students citing the Child Benefit Act the Majority Opinion handed down by Justice Black says:

    ”No tax in any amount...can be levied to support any religious activities or institutions...Neither a State or the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
18

Since there are no secular limitations in the Chubb and Moe proposals what will prevent schools from using the money to purchase religious textbooks or spend money on religious ceremonies or services. This will create excessive administrative entanglement.19

Several critics charge that if the Chubb and Moe proposal were to go forward courts would have to deal with sobering entanglement issues producing political disunions against which the First Amendment was intended to protect.20

Justice Black in Everson declares, "The First Amendment has erected a wall between church and state that must be kept high and impregnable."21

The Chubb and Moe model summarily dismisses the three First Amendment arguments against using federal money for sectarian schools. The proposals further neglect to even take into consideration the constitutional objections to the types of discrimination likely to be found in private schools funded under their proposals.

It will be difficult to determine how wisely parents will use choice vouchers to provide for the best possible education for their children. Overriding issues from past critics have been that vouchers may promote racial and socioeconomic segregation in schools by the attraction of vouchers of the considerable support of parochial schools, running the risk of violating the First Amendment and the Equal Protection Clause of the 14th Amendment. 22

Thirty years ago the Supreme Court addressed cases surrounding the issue of tuition grants and segregated schools. Their subsequent decisions indicate the Court would not be receptive to a voucher plan including religious schools.23 If federal anti-discrimination laws were valid in the 1960's then they are valid in the 1990's.

If Chubb and Moe were to survive the First Amendment challenge it must also avoid de jure segregation. From a line of Supreme Court decisions in the 1950's, three elements of de jure segregation have emerged. The Courts have defined de jure segregation as, "1)...when it is initiated or supported by the government, 2) when action is taken with the intention to discriminate, and 3) when action creates or increases segregation." 24

In the past the courts have established elements of de jure segregation in cases involving state tuition grants. The courts pointed out that the state aid could be converted into a vehicle to circumvent the desegregation of schools and further continue existing segregation. 25

The Chubb and Moe proposals are based on the belief that private decisions are better than bureaucratic ones. They propose that the state would set up a Parent Information Center. The parent liaisons would meet with parents to determine which schools most fit their needs. 26 Critics of prior voucher plans have stated before that these proposals could foster socioeconomic segregation. Poor children, usually ethnic minorities could not supplement the vouchers with personal funds and would be regulated to schools charging the lowest tuitions. 27 The Court held in Poindexter v. Louisiana Financial Assessment Commission that state tuition grants could damage needy students, teachers and funds from existing public schools into a competitive potentially segregated "quasi-public" school system. 28 Under this ruling the Chubb and Moe model could meet the first element of de jure segregation of being supported by the government.

Chubb and Moe further propose that students not picked in the first round of applications will be assigned to school by a "Choice Officer." They continue by saying that, "at-risk students should be empowered with bigger scholarships that the others, making them attractive clients to all schools-and stimulating the emergence of new specialty schools.” 29 (emphasis added) A large number of at-risk students come from low income minority areas and vouchers could further advance socioeconomic and racial segregation. Some schools could set tuition rates below the value of the voucher and offer a cash rebate to encourage parents to enroll students in their school. 30 How wise would parents be in choosing their children’s education. Would they choose in the best interest of their children or choose offers of cash rebate incentives.

Harold Patterson, a superintendent from Alabama believes freedom of choice from an educational voucher system will amplify problems already in existence in schools under court-ordered segregation31 setting the stage for intention to segregate, possibly engaging the second element of de jure segregation.

Some authorities feel that given Chubb and Moe's market driven approach all schools public or private which receive public funds will not provide equal access to all. 32 A clear violation of the Equal Protection Clause.

The Chubb and Moe model deals more with the issue of school finance initiatives underscoring the growing trend of private sector partnerships in education.33 Markets connect people with needs with people who can meet those needs. 34 In essence these proposals could boil down to only public schools guaranteeing admission to all. It would stand to reason that private schools would be limited to the smartest, richest or most athletic. Essentially meeting the third element of de jure segregation with federal money creating or increasing segregation. Students with special needs, non-native speaking, who are difficult or too expensive to educate could be limited in their choice of schools.35

Superintendent Stovic, from Dayton summarizes that the Chubb and Moe proposal favors the church-related and private schools giving them unqualified opportunity to refuse to accept the at-risk child. 36 Segregation could be furthered since private schools could accept only low cost or easily educated students, requiring public school to educate those with special needs.37

Poindexter held that state tuition grants provided to children attending private schools was unconstitutional on the grounds that the grant system promoted segregation. Effects of the grant system,” endangers the public school system and equal education opportunities for Negroes." Establishing and maintaining a system of segregated school system is in violation of the Equal Protection Clause. 38

Collectively, a group of school administrators wrote in, "Improving Arizona's Schools Promoting the Discussion: A Response to "Better Schools for Arizona." in response to an educational voucher system pointed out that the possibility of true choice is eliminated when any proposal comes in conflict with constitutional law. Such a proposal could result in further isolation of racial and ethnic groups. 39 Subsequently, the Chubb and Moe proposal could operate to eliminate de facto discrimination] and eventually amount to de jure segregation.40

Green v. County School Board 1968 in deciding on an issue related again to state grant tuitions stated:

    "(R)ather than, all we decided today is that a plan utilizing "freedom of choice," is not and in itself.....If the means prove affective, it is acceptable, but if it fails to undo segregation, other means must be used...",
41

Courts have invalidated laws prior to enactment on the basis of predictions of de facto segregation in a education system-even though the purpose or motive of segregation was not evident.42 Steven Stovic concludes,” children should not be the ones to suffer while society wrestles with its bigotry."43

Chubb and Moe would establish a process too complicated to be practical. In Griffin v. State Board of Education, regarding state tuition grants the Courts hold that for every issue for allowance for diverse condition would result in, "endless tribulation and trial" to prevent abuse of the system.44 Rather than improving schools, educational voucher systems will require so many changes in state law and constitutional conflicts that creative and innovative ideas will be crowded out. Chubb and Moe have based their proposals on analysis research showing that private schools consistently do better because they are mostly upper class and white student population. 45

Chubb and Moe don't accept the constitutional issues in their proposals. Instead they hide under the skirts of democracy to promote capitalistic ideals. The primary focus for educators should be to ensure that the needs of the children are always met under the guidance of the Constitution.46

Axiomatic: "Anything against the Constitution will fail."47


Endnote:This is short topic paper prepared for a
Master's Degree Course in Educational Law at
Northern Arizona University in February 1991 towards certification
in Educational Administration.



Footnotes


1Taylor, Judith Kimball, “Educational Vouchers: Addressing The Establishment Clause Issue”, Pacific Law Journal 11 (July 1980), 1063.
2Ibid., p. 1065.
3Flygare, Thomas J, “An Abbreviated Voucher Primer, Inequality in Education”. 15 (Nov. 1973), 53.
4Penning, Nick, "Church and State Dispute Delays Child Care Action," The School Administrator 47, (Feb. 1990), 62.
5Taylor, p. 1066.
6Chubb, John E. and Terry M. Moe, "Schools In a Marketplace: Chubb and Moe Argue Their Bold Proposal," The School Administrator, 48 (Jan. 1991), 22.
7Ibid.
8Ibid.
9Stovic, Steven P., "Let's Stop thinking Educational Choice Is The Answer To Restructured Schools," The School Administrator, 48 (Jan. 1991), 26.
10Corkill, Philip M., "Church-State Relationships In Education," Lecture presented at Flowing Wells USD-Board Room, February 4, 1991.
11Lemon v. Kurtzman, 403 U.S. 602, (1971).
12Chubb, p. 22.
13Stovic, p. 21.
14Corkill, February 4, 1991.
15Taylor, p. 1071.
16Ibid., p. 1066.
17Ibid., p. 1069.
18Everson v. Board of Education, 330 U.S. 1 (1974).
19Taylor, p. 1080.
2020Ibid., p. 1082.
21330 U.S. 1, (1974).
22Flygare, p. 55.
23Ibid., p 56.
24Valente, William D. Law In The Schools (Columbus Ohio: Charles E. Merril, 1980), p 307.
25Griffin v. Board of Education, p. 296 F. Supp. 686 (1968).
26Chubb, p 22.
27Flygare, p 52.
28Poindexter v. Louisiana Financial Assistance Commission 296 F. Supp. 686 (1968).
29Chubb, p 22.
30Flygare, p. 56.
31Penning, Nick, "The Report Card of the Education President Educators Wonder Will He Advance a Grade," The School Administrator, 47 (Jan. 1990), 28.
32Select Committee on Educational Reform, Better Schools for Arizona, Pamphlet, (Nov. 1990).
33Cetron, Melvin, "Cetron's Latest Forecasts of Education's Critical Trends: New Book What’s' in Store for Technology, Jobs, Families," The School Administrator, 47 (Oct. 1990), 30.
34Select Committee, p 19.
35Grosse, Carols L. PhD. Ed., "Improving Arizona's Schools Promoting The Discussion: A Response to "Better Schools for Arizona," Maricopa County Superintendents Association, Pamphlet, (1990).
36Stovic, p.21.
37Response To Better Schools, p. 8.
38Poindexter, 296 F. Supp. 686 (1968).
39Response To Better Schools, p. 32.
40Valente, p. 110.
41Green v. County School Board, 391 U.S. 430, (1968).
42Poindexter, 296 F. Supp. (1968).
43Stovic, p. 26.
44Griffen, 296 F. Supp. 686 (1968).
45Response To Better Schools, p. 32.
46Chubb, p. 25.
47Corkill, January 21, 1991.


A Selected Bibliography

Cetron, Melvin. Cetron's Latest Forecasts of
Education's Critical Trends: New Book What's in
Store for Technology, Jobs, Families." The
School Administrator. 47 (Oct. 1990) 29-31.

Coffey v State if Education Finance Committee, 296 F.
Supp. 1381 (S.d. Miss. 1969).

Coons, John E. and Stephen D. Sugerman. "Vouchers
for Public Schools." Inequality In
Education. 15 (Nov.1973), 6062.

Chubb, John E. and Terry M. Moe. "Schools in a
Marketplace: Chubb and Moe Argue Their Bold
Proposal." The School Administrator. 48
(Jan 1991), 18-25.

Doer, Ed. "Liebermann Has Nothing to Offer."
The School Administrator. 48 (Jan. 1991)18-25.

Flygare, Thomas J. "An Abbreviated Voucher
Primer." Inequality In Education. 15
(Nov. 1973), 53-56.

Griffin v. State Board of Education, 296 F. Supp.
1778
(E.D. Va 1969).

Grosse, Carol L. PhD. Ed. "Improving Arizona's
Schools Promoting The Discussion: A Response
to "Better Schools For Arizona.” Maricopa County
Superintendents Association.

Levin, Joel. "Alum Rock: Vouchers Pay Off."
Inequality In Education. 15 (Nov. 1973),
57-59.

Poindexter et al. v. Louisiana Financial Assistance
Commission et al. 296 F. Supp. 686 (E.D. La
1968).

Penning, Nick. "Church and State Dispute Delays
Child Care Action." The School
Administrator. 47 (Feb. 1990) 61-62.

Penning, Nick. "The Report Card of the Education
President: Educators Wonder Will He Advance A
Grade?" The School Administrator. 47
(Jan. 1991), 27-28.

Stovic, Steven P. "Lets Stop Thinking Educational
Choice Is The Answer To Restructured Schools."
The School Administrator. 48 (Jan. 1991)
19-27.

Select Committee on Educational Reform. "Better
Schools For Arizona." November 1990.

Taylor, Judith Kimball. "Educational Vouchers:
Addressing The Establishment Clause Issue."
Pacific Law Journal. 11 (July 1980) 1061-
1083.

Valente, William D. Law In The Schools.
Charles E. Merrill Pub. Co., 1980.

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