Do CO Vouchers Pass the Constitutional and Moral Test?

Douglas County passed a voucher program, prompting a (predictable) lawsuit from the ACLU. The Institute for Justice (IJ) has intervened on behalf of the school district. And the Independence Institute of Golden has taken up a public-relations campaign for the voucher program.

The first question is this: does this or any voucher program in Colorado pass Constitutional muster?

The First Amendment of the federal Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” As I’ve summarized, the Supreme Court has ruled that the establishment clause does not rule out vouchers for religious institutions; in certain circumstances they are permitted.

My own view is that there should be an absolute prohibition of any tax funding of any religious group, whether or not the First Amendment requires that. Forcing people to finance religious organizations violates their freedom of speech and economic liberty. (Of course, I oppose forced wealth transfers per se.) But let us grant that the federal Constitution (as now interpreted) does not invalidate the voucher program in question.

The more important language comes from Article IX, Section 7 of the Colorado Constitution:

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever…

This is the the most clear, absolutist language I can imagine. It prohibits tax funding of any religious group.

Ah, but you see, that language does not actually mean what is says, so we may simply ignore it. At least that is the upshot of IJ’s position:

IJ Senior Attorney Dick Komer said, “This challenge to Douglas County’s innovative program will fail for one principal reason: It is parents — and not government officials — who are deciding what school a child attends. No educational money will be spent at any school through this program — be it secular or religious — without a parent making that free and independent choice. The provision of the Colorado Constitution on which the opponents of school choice rely has already been interpreted by the Colorado Supreme Court and the 10th U.S. Circuit Court of Appeals to permit Colorado students to use state-provided financial assistance at religious schools, so long as the program is religiously neutral (meaning it doesn’t favor or disfavor religion) and the choice is made by the students and their families. Those who challenge school choice always disparage the key role played by the parents in selecting the schools their children will attend, but the Institute for Justice will defend the parents’ rights to choose the best available education for their children.”

I have not reviewed the legal decisions invoked by Komer. But the Colorado Constitution does not say that school districts can subsidize religious institutions so long as it’s done indirectly through a citizen-directed voucher. Whether or not the courts will allow it, directing vouchers to religious schools obviously violates the Colorado Constitution, and any other reading is convenient legal fiction.

Whether the relevant section of the Colorado Constitution was badly motivated is beside the point legally speaking. We can’t just ignore Constitutional provisions because we don’t like them. Instead, the proper move for those who dislike the provision is to seek its repeal.

That said, a few years ago Rob Boston questioned whether the prohibition of religious subsidies arose from anti-Catholic bigotry, as its opponents allege.

I have not looked deeply into the historical question, because frankly it doesn’t much matter to me. Is the Colorado language inherently biased? No, it is not. It does not target one faith, but rather prohibits tax subsidies of all faiths.

The relevant moral question is this: does the prohibition of tax subsidies for religious institutions protect rights or violate them? The obvious answer is that it protects people’s rights. People have the right to control their own resources. They have the freedom of conscience, which entails the freedom of speech, which entails the right not to support ideas they oppose. People have the right not to finance religious organizations if they don’t want to, and it is wrong to try to force them to.

Now, as I have argued, it is also wrong to force people to subsidize nonreligious ideas they oppose, such as the environmental indoctrination so prevalent in today’s “public” schools. But the solution to that problem is not to universalize the rights violations! Instead, we should seek to protect individual rights across the board. (See also my article,“Rethinking Education Tax Credits.”)

On the PR front, the Independence Institute (II) has released a video to the effect that the voucher funds are useful to students and their families. Well, the same could be argued for the recipients of any subsidy.

While the II and IJ talk about “choice,” they forget about the most fundamental choice involved here: the choice of how to spend one’s resources. Outside that context, we’re merely discussing some alleged “freedom to choose” how to spend other people’s money.

Now, Douglas County could start a voucher program that excluded religious schools. But that would also generate some problems. What if a basically religious school nevertheless claims to be secular or nonreligious? Why should religious schools be punted from the program, but not, say, the Al Gore School for Environmental Propaganda, or the Che Guevara School for Socialism?

Vouchers must go in one of two directions. Either they must be neutral to ideology, in which case they force taxpayers to finance institutions they may find abhorrent. Or they must discriminate on the basis of ideology, which is not obviously better.

The third option is to forget about vouchers and focus on establishing real, free-market education.


Anonymous commented on July 19, 2011 at 3:02 PM
Hi Ari,

I always thought vouchers as my first step to accomplishing your challenge of creating a free market for education. I figure the competition will create clear winners. These winners will produce educated students, efficiently. Ultimately these better schools will dominate the market. Maybe, just maybe a sensible body of representatives will recognize this success of a nearly free market and take the final plunge. They will say, hey, this is so stream lined and affordable, citizens should just pay for this themselves. We hereby no longer collect or expend revenue for education. I fear the current system moves us the exact opposite direct. Education becomes more bloated and expensive. Government subsidy or insurance are the only way to “fund” education.

Please explain why my first step is not an acceptable first step to free market education. Also please provide your first step. Certainly blogging is a nano start but what type of legislation, (even if it is legislation that deregulates), would you like to see?



Anonymous commented on July 19, 2011 at 3:09 PM
Hi Ari,

I forgot to mention this point in my previous post. It is regarding a different area so a separate post may be appropriate. The Colorado Constitution uses the word “sectarian” 3 times when refereeing to prohibited education. I did a quick search on sectarian and there is much disagreement to the actual meaning. Many believe it is not just religion. For example Denver Green School would be considered sectarian when compared to alternate definitions of sectarian. Any education other than core may be sectarian?