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School Vouchers: Are they Legal?

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By Cynthia Hsu, Esq. on July 06, 2011 1:02 PM

The fight over Indiana's school voucher program has just begun. A lawsuit filed by teachers in the state claim that school vouchers are unconstitutional with respect to the Indiana Constitution, and that school vouchers are not legal.

The school voucher plan would allow low and mid-income families to use public money towards enrolling in private schools, reports the Chicago Tribune.

But, is it constitutional under federal law to allow public, state funds to be given over to private schools - many of which are religious institutions?

Yes, according to Supreme Court precedent.

In 2002, the Supreme Court decided in Zelman v. Simmons-Harris that an Ohio voucher program did not violate the constitution's establishment clause. The establishment clause forbids Congress from making laws "establishing" a religion, which essentially means that Congress cannot create a national religion or prefer one religion over another.

The argument that school vouchers violate the establishment clause is that since many private schools are not secular, like private Christian schools, if public funds are diverted to private institutions in the form of a voucher Congress is "establishing" the religion.

However, the Zelman decision found to the contrary. In Zelman, the court found that the voucher was one of "pure private choice," and was therefore constitutional. It wasn't the state that was choosing to put money into the religious schools, but the parents.

The Indiana challenge is being brought up as a violation of state constitution, not federal. So, the interpretation the court will apply will be whether or not the program violates Indiana's state constitution, a completely different analysis.

As a result, it's unclear whether or not the Indiana school voucher program will meet the same fate as programs in Arizona, Florida and Colorado which were struck down as unconstitutional by their respective state supreme courts, reports Reuters. But, the Supreme Court has had its say - school vouchers are constitutional with regards to the U.S. Constitution, and school vouchers are legal - at least under federal law.

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