Resisting Efforts to Provide Public Funding for Parochial Education in Wake of Zelman v. Simmons-Harris: A Primer for North Carolina Advocates

Mary Elizabeth Hill Hanchey

Volume 1 - Spring 2003

Abstract

Introduction
     In Zelman v. Simmons-Harris, the United States Supreme Court upheld the Cleveland public school system's use of state-funded educational vouchers to pay for education at religious schools. In doing so, the Supreme Court ostensibly settled a question that has epitomized the debate about the appropriate intersection of church and government. More importantly, the Court set out a roadmap for states interested in addressing some of the shortcomings of their public school systems by paying private schools to educate their children. By conforming their voucher programs to the criteria set out in Zelman, states can be sure, at least for the time being, that these programs will not run afoul of the First Amendment's Establishment Clause. It remains to be seen, however, to what extent the Zelman decision may shape state educational policy at the ground level. Specifically, it is unclear whether state constitutional provisions that prohibit what the federal Constitution now allows will remain in tact; how, if at all, the Zelman roadmap might apply to educational policy outside the voucher context; and how, if at all, the Zelman roadmap might inform opposition to the creation of voucher programs at the state level.
     This Note addresses these questions by examining Zelman's relevance to the North Carolina Constitution and North Carolina's educational policy. Part I discusses the Zelman decision and the criteria that is sets forth. Part II offers a brief history of North Carolina's struggles with educational reform, including the creation of the charter schools program. Part III shows that a voucher program such as Ohio's could be permissible under the North Carolina Constitution. Part IV addresses the possibility that charter programs might seek to use Zelman's structure to create charters for religious schools, arguing that although such an approach might be tailored to satisfy the Zelman criteria, the essentially public nature of charter schools would nonetheless create an insurmountable constitutional obstacle. Part V explores strategies for policy makers and voucher opponents to resist, under the Zelman framework, potential North Carolina educational programs that would provide public funding to parochial schools. Part VI offers a brief conclusion.
     This Note is premised on the assumption that vouchers are bad public policy and is designed in part to assist those in North Carolina who would resist legislative efforts to channel public funds to parochial schools in the wake of the Zelman decision. Thus, rather than critiquing the Zelman decision itself, this Note explores arguments against such efforts within the Zelman framework. Of course, the assumption that vouchers are bad public policy is a controversial one. Because an in-depth analysis of the important policy issues underlying the school voucher debate is beyond the scope of this paper, the author invites readers to explore these issues on their own. For the purposes of the paper, the author assumes that (1) the use of vouchers at religious schools funds religious education, (2) attaching restrictions, such as federal law prohibiting discriminatory hiring, to the use of state money at religious schools infringes on the religious liberty of the participating schools or churches, (3) failing to attach such restrictions to the use of state money at religious school unconstitutionally favors religion, (4) the sustained financial health of public schools is vital to provide a decent education to all children, and (5) money that funds private school vouchers is money denied to public schools.
Cite as: 1 First Amend. L. Rev. 85 (2003)
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