School vouchers are becoming increasingly common in the United States. Earlier this year, North Carolina joined the growing list of states that provide tax dollars to students who want to attend private or parochial schools. In June, Wisconsin Governor Scott Walker signed a budget that will significantly expand the state’s existing voucher program. It comes as no surprise that these laws are incredibly controversial. Voucher programs typically provide state money to low-income students or students with disabilities to help them pay some or all of the tuition at private schools. Proponents of these programs argue that vouchers allow low-income students to escape poorly performing public schools, while opponents warn that vouchers take money away from public schools that are already underfunded.
Aside from these debates, school vouchers raise important civil rights concerns. In fact, the first voucher programs in the United States were actually created in an attempt to avoid school integration. After the Supreme Court ruled that school segregation was unconstitutional in Brown v. Board of Education, 347 U.S. 483 (1954), states and local school districts looked for ways to bypass the high court’s decision and maintain racial segregation in their schools. Vouchers were one of the strategies they used.
In 1956, the Virginia General Assembly passed legislation closing all public schools where white and black students were enrolled together and replacing the public schools with tuition vouchers that enabled students to attend racially segregated private schools. Eventually, however, the Supreme Court struck down Virginia’s voucher law in Griffin v. County School Board, 377 U.S. 218, 231-32 (1964). The Court determined that the voucher program was unconstitutional because it was created solely for the purpose of denying black students access to integrated public schools.
Yet there are instances in which non-discriminatory voucher programs have been found constitutionally permissible. For example, in Zelman v. Simmons-Harris, 536 U.S. 639 (2002),the Supreme Court answered the question of whether the use of government funds to send students to religious schools violates the Establishment Clause of the First Amendment. In upholding the program, the Court explained that “where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals,” the program does not have the purpose or effect of advancing or inhibiting religion. Id. at 655.
Even though private schools that accept vouchers are formally barred from discriminating based on the race of applicants, voucher programs may still contribute to racial segregation in schools. Early on, the voucher program in Milwaukee routed students into private schools that were divided along racial lines. From 1994 to 1995, four schools participating in the program had student bodies that were exclusively black, four additional schools were over 70% black, and one school was 93% Latino. The student bodies at the remaining three schools participating in Milwaukee’s voucher program were mostly white.
Students with disabilities may also be vulnerable to discrimination in the operation of voucher programs. Public schools are required to teach all children, whereas private schools generally have discretion to admit or reject the children who apply for admission. As a result, private or parochial schools that participate in voucher programs may use this discretionary power to systematically exclude students with disabilities.
For example, in Wisconsin, the Disability Rights Center reports that it “has been hearing from parents about discrimination against students with disabilities in the state’s school voucher system for many years.” Accordingly, the Disability Rights Center and the ACLU filed a complaint against the Wisconsin Department of Public Instruction in 2011. The organizations claimed that the state’s voucher program discouraged students with disabilities from applying to private schools, that participating private schools denied admission to students with disabilities when they did apply, and that students with disabilities were pushed out of voucher schools through expulsions and other policies that failed to accommodate special needs. Based on this complaint, the U.S. Department of Justice sent a letter in April to the Wisconsin Department of Public Instruction clarifying that private schools accepting students with tuition vouchers may not discriminate based on disability status.
This determination by the Department of Justice suggests that voucher programs cannot be used to exclude people with disabilities. However, it remains to be seen how this nondiscrimination policy will actually play out. Although voucher schools may be formally prohibited from rejecting students with disabilities, these schools may find ways to continue excluding students based on disability status. Private schools may also argue that they have not intentionally discriminated against students with disabilities. This raises questions of whether these private schools will be required to provide special education services in the future.
It is clear that voucher programs should not be allowed to discriminate based on race or ability. Past decisions by the Supreme Court and recent guidance from the Department of Justice suggest that voucher programs must be administered in nondiscriminatory ways. Still, vouchers may make schools even more segregated, and some private schools may continue to exclude students with disabilities. These trends are unacceptable. Moving forward, we must find ways to make our nation’s schools — especially those that receive government funding — inclusive and accessible for all students.