Author: Matt Huffman, Associate Member, University of Cincinnati Law Review
In 2014, Americans rated “education” as a top area of concern and as one of the most important problems facing the country. Education is a social, political, and economic issue, and quality education is viewed as critical for both individual and societal success. While the U.S. spends more per student than most countries, this spending has not translated into better results.,  These underwhelming results have led to widespread debate on how to “fix” the education system in the United States. Ohio was one of the first states to tackle the issues of high costs and poor performance. With the initial implementation of its Cleveland public schools voucher program in 1995, Ohio offered students in failing school districts the opportunity to attend any private school. This program has since expanded into a number of different forms and is now available to all students in Ohio who meet the designated criteria of their respective programs. A substantial number of vouchers have been used for students to attend private, Catholic schools. Since the implementation of voucher programs, the use of public dollars to fund education at religious schools has caused significant debate. This transfer of state money from public schools to religious schools via the voucher program has led to debate about whether the program is an impermissible mixing of church and state under the U.S. Constitution. This article first argues that Ohio’s voucher program is not an impermissible mixing of church and state, and, moreover, that religious schools must be included in any voucher program under the Free Exercise Clause. The article then analyzes Ohio’s own constitution and the socio-political impact of vouchers in determining whether Ohio lawmakers should actually be compelled to pass laws to provide educational opportunities for students at all schools, including private, religiously affiliated schools.
The Establishment Clause
Opponents of Ohio’s voucher program contend that the voucher program violates the Establishment Clause per se by providing state funds to religious schools. These critics ignore the Supreme Court’s decision in Mueller v. Allen, which stated, “one fixed principle in this field is our consistent rejection of the argument that ‘any program which in some manner aids an institution with religious affiliation’ violates the Establishment Clause.” Thus, the bare fact that public dollars ultimately end up in religious school’s coffers is not prima facie evidence that a program violates the Establishment Clause.
This principle was recognized in Zelman v. Simmons-Harris, in which the Supreme Court held in a 5-4 decision that Ohio’s school voucher program did not offend the Establishment Clause because it was one of “true private choice.” The majority opinion reasoned that enrollment in religious schools occurred solely as a result of parents making independent decisions in the best interest of their child’s education, and thus the program was religiously neutral. The Supreme Court decided Zelman correctly, but the Establishment Clause issue is not as close as a 5-4 decision indicates.
Government action that has some relationship to religion will violate the Establishment Clause unless it satisfies all three parts of the Lemon Test: (1) purpose, (2) effect, and (3) entanglement. Ohio’s school voucher program passes each part of this test. First, under the “purpose” prong, the government action must have a secular legislative purpose. Voucher programs allow students to choose a different, presumably better, school to further their education—a wholly secular purpose. This secular legislative purpose regarding school vouchers and religious schools has also been recognized in other states such as Wisconsin, Arizona, and Maine.
Under the “effect” prong, the governmental action’s primary effect must not be to advance religion. Critics of Zelman contend that one principal effect of voucher programs is to provide a substantial amount of public funds to religiously affiliated schools, and thus vouchers advance religion. However, voucher programs provide the same amount of scholarship money regardless of a school’s religious affiliation. In Jackson v. Benson, the Wisconsin Supreme Court reasoned, “state educational assistance programs do not have the primary effect of advancing religion if those programs provide public aid to both sectarian and non-sectarian institutions: (1) on the basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only as a result of numerous private choices of the individual parents of school-aged children.” Under the Ohio programs, when a student qualifies for a voucher, the student may use that scholarship at any private secular or religious school, and, if the school is religious, no preferential treatment is given based on the specific religious affiliation of the school. Thus, even if an effect of the voucher program is to benefit a particular set of religiously affiliated schools, this is an incidental effect resulting from students independently electing to attend that type of school, and is not the primary effect or intention of the program.
Under the “entanglement” prong, the governmental action must not foster an excessive governmental entanglement with religion. In Zelman, the Court held that the Ohio voucher program did not entangle the state with religious schools because money was given to students rather than directly to schools. Even if money were given directly to religious schools, however, there would not necessarily be enough entanglement to fail the Lemon test. In Bagley v. Raymond School Department, the Maine Supreme Court stated “not all entanglements . . . have the effect of advancing or inhibiting religion . . . Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” The Bagley court set forth three factors to consider when determining if entanglement is “excessive”: (1) the character and purpose of the benefitted schools, (2) the nature of the aid that the state provides, and (3) the resulting relationship between the religious school and the state. First, religious schools have a dual purpose in furthering religious values and educating the students in subjects that are not religiously based. Second, under the Ohio voucher programs, the state only pays the tuition of the voucher student, and that amount is capped based on the respective program. Finally, there is no resulting relationship between the state and the religious school under the Ohio voucher program. Simply paying tuition directly to schools would not “entangle” the state with religious schools any more than assistance to religious schools for transportation costs, computers, and secular texts, each of which does not violate the Establishment Clause. Therefore, even if Ohio’s voucher program were to give money directly to religious schools, it is unlikely that this would constitute “excessive entanglement” without any further relationship between the state and religious school.
Free Exercise Clause vs. Establishment Clause
In addition to prohibiting the establishment of religion, the First Amendment prevents Congress from “prohibiting the free exercise thereof.” Ohio voucher programs would unquestionably be Constitutional if the programs did not include the option to use voucher money at religious schools. However, if a voucher program were to provide tuition money to any private school except private religious schools, it would violate the Free Exercise Clause. The Free Exercise Clause protects citizens’ right to freely practice their religion. The state must remain neutral in all matters of faith, and neither favor nor inhibit religion. Excluding private religious schools from a voucher program would not serve any governmental interest beyond a fear of violating the Establishment Clause. The Free Exercise Clause mandates that the government allow individuals to exercise religion uninhibited. Thus, the government cannot restrict individuals to only secular choices. Given this, it follows that, if a voucher program allows students to use state money at any private school, the Free Exercise Clause mandates that the program must allow students to select a private religious school as well. Because it would be illogical for the Establishment Clause to forbid the same action that the Free Exercise Clause mandates, if a state implements a voucher program, it must include religious schools as voucher recipients as well.
Ohio’s Constitution states “all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship against his consent; and no preference shall be given, by law to any religious society; nor shall any interference with the rights of conscience be permitted.” These clauses echo the Establishment Clause and the Free Exercise Clause of the U.S. Constitution. Ohio Constitution Article VII further states, “Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.” Thus, the Ohio Constitution explicitly announces the importance of religion in the state’s governance.
When developing laws, Ohio lawmakers must not only obey the U.S. Constitution, but also must make policy in line with the state’s constitution. Opponents of the Ohio school voucher system look to the Establishment Clause to strike down any legislation that may benefit religious schools, but, under the Ohio Constitution, the state government is encouraged to support religion in the state. This presumably allows for the support of religious schools in some manner. Ohio lawmakers cannot violate the Establishment Clause, but the legislature should pass laws in furtherance of and in accordance with the Ohio Constitution so long as the law does not violate the U.S. Constitution. Thus, Ohio lawmakers should foster an educational environment where students from all backgrounds have the opportunity to obtain the education that they and their parents feel best fits their needs, regardless of the school’s status as private, public, secular, or non-secular. The best way to foster this type of environment, while still avoiding the excessive entanglement of church and state, is to provide parents with money for their child’s education, and allow the parent to choose any school that best fits their child’s needs. The Ohio voucher program does just that.
The Impact of Vouchers from a Socio-Political Standpoint
Income inequality affects where families live and how much money they can spend to educate their children. A higher family income allows parents to spend more money on books, computers, tutoring, and other educational enrichment opportunities for their children. High-income families also have more options for a quality education, as they are more able to afford tuition for private schools and are less limited by transportation costs to get their children to the best public schools, even across the district if necessary. On the other hand, low-income families are more limited by costs when choosing a school, and are thus often relegated to enrolling in the nearest public school. Unfortunately for low-income families, many of the schools classified as “failing” are located in low-income neighborhoods. Thus, failing schools are often the only option available to low-income families.
Ohio’s voucher programs seek to equalize the educational opportunities available to high-income and low-income families. Socio-economic background has a significant impact on student performance, with as much as 15% of the variation in student performance explained by socio-economic background. Thus, two students of similar intelligence and ability are likely to have significantly different academic outcomes based solely on their socio-economic status. Perhaps because of the disadvantages they face in their school systems, low-income students show less engagement, drive, motivation, and self-belief. Voucher programs ensure that students with a lower socio-economic status are not barred from private school because of high tuition rates. By choosing a school system that better fits their individual learning needs, voucher students will likely find themselves in a more stable learning environment and surrounded by motivated peers. In effect, Ohio’s voucher program ensures that no student will be denied a quality education because of their family income.
The encouragement and funding of private schools, in itself, is not unconstitutional. Policies encouraging private schools can be properly used to facilitate a state’s overall educational goals. Private schools can help to stimulate public schools by relieving tax burdens and producing competition. Private schools also further the state interest of providing quality education to all children within a state. Thus, the state has an interest in providing all students with the opportunity to attend a private school. In providing students with this opportunity, the state cannot exclude religious schools from a student’s options. Such an exclusion would violate the Free Exercise Clause. By allowing students to select any private school of their choice, both sectarian and non-sectarian, the state government can ensure that all students, regardless of their economic background, have the opportunity to receive a quality education.
 Lydia Saad, Cluster of Concerns View for Top U.S. Problem in 2014, Gallup (Jan. 2, 2015), available at http://www.gallup.com/poll/180398/cluster-concerns-vie-top-problem-2014.aspx; Trends A to Z: Most Important Problem, Gallup, available at http://www.gallup.com/poll/1675/most-important-problem.aspx; according to Pew Research Center, 67% of people rate improving education as a top priority. Pew Research Center, Public’s Policy Priorities Reflect Changing Conditions at Home and Abroad, People Press (Jan. 15, 2015), available at http://www.people-press.org/2015/01/15/publics-policy-priorities-reflect-changing-conditions-at-home-and-abroad/,.
 Julia Ryan, American Schools vs. the World: Expensive, Unequal, Bad at Math, The Atlantic, December 3, 2013, available at http://www.theatlantic.com/education/archive/2013/12/american-schools-vs-the-world-expensive-unequal-bad-at-math/281983/. America ranks fifth internationally for dollars-per-student spending.
 For example, the Slovak Republic, which spends around $53,000 per student, has performed at the same level as the United States, which spends just over $115,000 per student. Despite the value placed on education and the significant amount of money spent on it each year, the United States still ranked twenty-seventh in mathematics, seventeenth in reading, and twentieth in science in the 2012 Programme for International Student Assessment (PISA) results. Programme for International Student Assessment (PISA) Results from PISA 2012, United States 1, available at http://www.oecd.org/pisa/keyfindings/pisa-2012-results.htm.
 The Cleveland voucher program provided tuition aid for certain students in the “demonstrably failing public school system” to attend participating public or private schools of their parent’s choosing. Zelman v. Simmons-Harris, 536 U.S. 639, 640 (2002).
 Voucher programs pay the respective scholarship amount or the private school’s actual tuition, whichever is less. The scholarship amount covers tuition only, and does not cover any additional fees.
 The Establishment Clause requires the government to remain neutral in religious matters and to refrain from compelling citizen participation in religious activities. The First Amendment of the United States Constitution contains the Establishment Clause and the Free Exercise Clause, and reads, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
 Mueller v. Allen, 463 U.S. 388 (1983).
 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
 Zelman follows the principle laid out in Mueller, which states, “where aid to parochial schools is available only as a result of decisions of individual parents, no ‘imprimatur of State approval’ can be deemed to have been conferred on any particular religion, or on religion generally, in violation of [the] establishment clause.” Mueller at 399.
 Lemon v. Kurtzman, 403 U.S. 602 (1971).
 In other words, there must be some governmental purpose that has nothing to do with religion.
 Jackson v. Benson, 218 Wis. 2d 835 (1998), held that an amendment to school choice statute had primary secular purpose of providing low-income parents with an opportunity to have their children educated outside of the embattled public school system, even though amended statute allowed for payment of state funds to sectarian schools; Kotterman v. Killian, 193 Ariz. 273 (2010) held that there was a secular purpose for allowing state tax credit of up to $500 for donations to school tuition organizations, as element of Lemon Establishment Clause test; stating that private schools, both sectarian and non-sectarian, relieve tax burdens, produce healthy competition, and make quality education available to all children in the state; Anderson v. Town of Durham, 895 A.2d 944 (2006).
 An effect that incidentally renders a benefit to a religious group, however, would be acceptable provided that it does not communicate approval or disapproval of religion. Nathan P. Heller, Context is King: A Perception-Based Test for Evaluating Government Displays of the Ten Commandments, 51 Vill. L. Rev. 379, n. 70 (2006).
 Jackson v. Benson, 218 Wis.2d 835 (1999). The Wisconsin Supreme Court noted, “state programs that are wholly neutral in offering educational assistance directly to citizens in a class defined without reference to religion do not have the primary effect of advancing religion.”
 Zelman at 639.
 Bagley v. Raymond School Dept., 728 A.2d 127 (1999).
 Everson v. Board of Ed. Of Ewing, 330 U.S. 1 (1947); Mitchell v. Helms, 530 U.S. 793 (2000).
 The Free Exercise Clause guarantees that individuals are free to believe as they choose from a religious standpoint, without interference from the government.
 Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 299 (1963).
 Ohio Const. art. 1, § 7.
 Kenneth Leithwood, Alma Harris & Tiiu Strauss, Leading School Turnaround 26 (2010).
 Programme for International Student Assessment (PISA) Results from PISA 2012, United States 2, available at http://www.oecd.org/pisa/keyfindings/pisa-2012-results.htm.