The voucher legislation is being considered as an amendment to the Fiscal Year 2004 D.C. budget bill, HR 2765, which authorizes all spending of local ($7.4 billion) and federal dollars ($ 466 million) for the District of Columbia's 570,000 residents. This bill incorporates the voucher plan, HR 2556, of Representative Tom Davis (R- Va-11).  Since February 2003, Rep. Jeff Flake (R-Ariz.-6) had sought through his bill, H-R 684 (and S.4, Part B by Senator Judd Gregg), to institute a taxpayer funded private school tuition grants.  HR 684 would award $3,750 to 1600 children at or near the poverty line.  Davis' plan, HR-2556, would reportedly grant up to $7,500 to 2000 children.

  Justice Stevens, dissenting.

    Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths a “law respecting an establishment of religion” within the meaning of the First Amendment? In answering that question, I think we should ignore three factual matters that are discussed at length by my colleagues.

    First, the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program is not a matter that should affect our appraisal of its constitutionality. In the 1999—2000 school year, that program provided relief to less than five percent of the students enrolled in the district’s schools. The solution to the disastrous conditions that prevented over 90 percent of the student body from meeting basic proficiency standards obviously required massive improvements unrelated to the voucher program.1 Of course, the emergency may have given some families a powerful motivation to leave the public school system and accept religious indoctrination that they would otherwise have avoided, but that is not a valid reason for upholding the program.

    Second, the wide range of choices that have been made available to students within the public school system has no bearing on the question whether the State may pay the tuition for students who wish to reject public education entirely and attend private schools that will provide them with a sectarian education. The fact that the vast majority of the voucher recipients who have entirely rejected public education receive religious indoctrination at state expense does, however, support the claim that the law is one “respecting an establishment of religion.” The State may choose to divide up its public schools into a dozen different options and label them magnet schools, community schools, or whatever else it decides to call them, but the State is still required to provide a public education and it is the State’s decision to fund private school education over and above its traditional obligation that is at issue in these cases.2

    Third, the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government’s choice to pay for religious indoctrination is constitutionally permissible. Today, however, the Court seems to have decided that the mere fact that a family that cannot afford a private education wants its children educated in a parochial school is a sufficient justification for this use of public funds.

    For the reasons stated by Justice Souter and Justice Breyer, I am convinced that the Court’s decision is profoundly misguided. Admittedly, in reaching that conclusion I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.
    I respectfully dissent.

Dissent by Justice Stevens

Depending on the cities, the federal government could fund this boost for $1 to $2 billion per year. The feds would guarantee to bankroll it for ten or fifteen years, to give entrepreneurs (both non-profit and for-profit) the incentive to make investments in new schools, and thus get a true test of competition's impact. Following Jack Coons' advice, we'd also toss in sensible regulations, such as one requiring that any school that wants to take the voucher has to reserve a certain portion of seats (say, 15 percent) for which the voucher would suffice as full tuition, so it's not simply a way for schools to jack up prices or shun poorer kids.

How did such a "grand bargain" play? Jack Coons, the "egalitarian," said it sounded great. So did Clint Bolick, the conservative Republican, though he thought the spending increase would mean "some of my fellow conservatives would have apoplexy." Senator Lamar Alexander of Tennessee, who served as secretary of education in George H. W. Bush's cabinet, signed on. So did Rod Paige, education secretary in the current Bush administration. Polly Williams, who led the drive to enact vouchers in Milwaukee, was hesitant about extending vouchers to families who weren't poor, so we posited a fix: Give them only to kids eligible for the federal school lunch program. We would move pretty far toward universal coverage this way, since, sadly, two out of three urban children qualify for school lunch assistance.

always believed that so many families would flee public schools if given a voucher worth even half of today's per-pupil spending that resources for each child remaining in the current system would rise. (If ten public school children have $5000 spent on each of them, and three leave taking $2500 each, spending on the seven remaining would rise about 20 percent, to just under $6100.) So Friedman said he would approve of a 20 percent increase in per-pupil spending for those who remained, so long as the voucher was worth only half that. Since Friedman thinks this increase will come over time anyway, he's not compromising his ideals.