Friday, February 19, 2016

Oklahoma Supreme Court Rejects Claim That State's Voucher Program Inappropriately Supports Religious Schools

Plaintiffs in Oklahoma challenged the state’s voucher program for students with disabilities.  Their primary claim seemed to be that the program was unconstitutional because such a large percentage of those students used those vouchers at private religious schools.  Of course, the U.S. Supreme court in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), previoulsy held that this bare fact alone did not rise to the level of a violation of the Establishment Clause of the U.S. Constitution.  The Court emphasized that student choice, not public policy, drove state funds to religious schools and the state policy itself was facially neutral.

The Oklahoma Supreme Court took a similar approach in upholding the voucher program against challenges based on the Oklahoma Constitution.

In Oklahoma, the Department funds the scholarship by issuing an individual warrant payable to the parent or legal guardian; it is not payable directly to the private school. The parent or legal guardian then endorses the payment warrant to the independently chosen private school providing the contracted educational services. Scholarship funds deposited to a private sectarian school occur only as the result of the private independent choice by the parent or legal guardian. The Department has no influence on which private school the parent chooses, or the subsequent endorsement of the payment warrant. The Department never directs whether the scholarship payment is made to a private sectarian or non-sectarian school.

We are also persuaded by the fact that all "State" scholarship funds are paid to the parent or legal guardian and not to the private school. It is the parent who then directs payment by endorsement to the independently chosen private school. Any scholarship funds deposited to a private sectarian school occur as the sole result of the parent's independent selection free from State control or direction. As noted in Zelman, this independence of choice by the parent breaks the circuit between government and religion.

Oklahoma, however, also has a "No Aid" Clause intended to prevent financial support for religious institutions.  Other states have similar clauses and have reasoned that even if some public program that sends money to religious institutions does not violate the state’s establishment, it violates the state’s “No Aid” clause.  Yet, the Oklahoma Supreme Court rejected this argument as well:

Taxpayers urge that the purpose of the "no funding" clause of the Oklahoma Constitution is to provide a guarantee of religious liberty. They further reason that any scholarship payment to a private sectarian school is tantamount to State support of a sectarian institution.

The "no aid" clause of the Oklahoma Constitution, Article II, §5, provides:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit or support of any priest, minister or other religious teacher or dignitary, or sectarian institution as such.

The court’s analysis of the no aid clause, however, appeared largely redundant of the establishment clause argument.

The purpose of the "no aid" clause is to support the separation of church and state and to ensure that churches are free from state control and have the ability to function and operate separately from the state. The concern is not the exposure to religious influence. Rather "it is the adoption of sectarian principles or the monetary support of one or several or all sects that the state must not do."

The Act provides a scholarship to a limited group of eligible students with disabilities. Participation in the scholarship program is strictly voluntary by the families and eligible students. The families who opt to take advantage of the scholarship independently choose which private school is best for the eligible student. Approved schools are determined without regard to religious affiliation and are based on statewide educational standards, health and safety regulations. The scholarship is paid to the parent who then endorses payment to the private school. The scholarship program does not directly fund religious activities because no funds are dispersed to any private sectarian school until there is a private independent selection by the parents or legal guardian of an eligible student. Any benefit to a participating sectarian school arises solely from the private and independent choice of the parent or legal guardian of the child and not from any decree from the State.

Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to a sectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state.

Get the full opinion here.

https://lawprofessors.typepad.com/education_law/2016/02/oklahoma-supreme-court-rejects-claim-that-states-voucher-program-inappropriately-supports-religious-.html

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