Salt Lake Tribune

Nothing in U.S. or Utah Constitutions Prohibits Vouchers

Daniel E. Witte

September 30, 2007

http://www.sltrib.com/opinion/ci_7038631

A recent Tribune Opinion column asserted that vouchers are unconstitutional. According to the writer, constitutional law prohibits Utah from sponsoring a voucher program that could bestow incidental benefits upon religious institutions.

But properly understood, neither the United States Constitution nor the Utah Constitution prohibits vouchers.

The Utah voucher law is indistinguishable in all material respects from the Ohio voucher program that the United States Supreme Court upheld in Zelman v. Harris-Simmons (2002) against an "establishment clause" challenge.

In Zelman, the court stressed that its "decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reached religious schools only as a result of the genuine and independent choices of private individuals."

The former programs may violate the establishment clause, while the latter, as in Zelman, do not, even though parents eligible for state vouchers may choose to enroll their children in religious schools. Zelman held "the [Ohio] program challenged here is a program of true private choice," consistent with the United States Constitution. Utah's program posits no federal violation.

For its part, the Utah Constitution includes three restrictions on church-state relations.

Article X, section 1 provides, "The Legislature shall provide for the establishment and maintenance of the state's education systems including [but not limited to]: (a) a public education system, which shall be open to all children of the state; and (b) a higher education system. Both systems [not all schools or parents] shall be free from sectarian control [not participation]."

Article X, section 9 provides, "Neither the state of Utah nor its political subdivisions may make any appropriation for the direct [not indirect] support of any school or educational institution controlled by any religious organization."

The third restriction, Article I, section 4, provides, "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment."

In other words, public money may not be used to directly fund ecclesiastical establishments (such as a church), religious activities (such as sacrament rites) or instruction of a wholly religious nature (such as religious seminary).

Public appropriations for students of all backgrounds whose parents apply the funds toward educational instruction about subjects of common public concern (e.g. mathematics, physics, Spanish) do not run afoul of the prohibition, even if a school happens to have religious ties.

The Utah Supreme Court has previously endorsed the aforementioned rationale and the same neutrality concepts found in Zelman. In Separationists v. Whitehead (1993), the court observed that "When the state is neutral, any benefit flowing to religious worship, exercise or instruction can be fairly characterized as indirect because the benefit flows to all those who are beneficiaries of the use of government money or property, which may include, but is not limited to, those engaged in religious worship, exercise or instruction."

A contrary interpretation mandates unfair discrimination against religious persons and would have the absurd effect of, for example, prohibiting a city fire department from extinguishing a fire at a church-sponsored school.

If the anti-voucher constitutional arguments prevail, government-funded Pell Grants and veterans benefits for all students attending Brigham Young University would suddenly be deemed unconstitutional.

So would the Carson Smith Act, a 2005 law signed by Gov. Jon Huntsman that provides scholarships for disabled students in Utah's private schools. Yes, indeed, Utah's disabled students already enjoy educational choice.

Provisions similar to those in Utah's Constitution have been favorably interpreted by the Wisconsin Supreme Court in Jackson v. Benson (1998), and by the Arizona Supreme Court in Kotterman v. Killian (1999). Conversely, the anti-voucher Bush v. Holmes (2006) decision was an opinion rendered by the Florida Supreme Court on the basis of a "uniformity clause" in the Florida Constitution. The Utah Constitution does not even contain a uniformity clause.

Aside from Florida, no high court has ruled that government schools are the exclusive means by which a state must provide education. No constitution bars any Utah child from learning in a school compatible with the child's own culture, faith, world view, disability, and/or customized needs. Vouchers are constitutional.
---
* DANIEL E. WITTE is a Utah attorney. His opinion is strictly his own.