Research & Commentary: Constitutionality of School Voucher Programs

Published July 7, 2010

In this year’s session the Illinois state legislature failed to pass a voucher bill benefiting low-income students in failing Chicago schools. Legislators expressed concern about the measure’s constitutionality. But several courts already have found vouchers to be constitutional.

Programs such as Medicare, Medicaid, Pell Grants, and the G.I. Bill of Rights establish strong precedent for the school voucher funding structure. Former Supreme Court Justice Sandra Day O’Connor noted as much in her concurring opinion in Zelman v. Simmons-Harris, in which the Court found voucher programs constitutional.

The evolving jurisprudence has established a set of criteria by which to judge the constitutionality of voucher programs. The Policy Review article “Are Vouchers Constitutional?” provides a succinct outline: a program must provide a benefit to families and allow them a free and independent choice in education, and the wording of the bill must not sponsor or suggest a religious affiliation.

The Illinois Constitution contains language barring the state from creating legislation compelling a person to attend or support a specific ministry, along with a form of the Blaine Amendment. The latter would not apply to S.B. 2494, however, according to the Illinois Policy Institute, as the Supreme Court of Illinois has found indirect or restricted payments to be constitutional. Many programs currently permit public aid to religiously affiliated organizations, and these funding structures have been approved by the state courts.

The following articles provide information about the constitutionality of school voucher programs.

The Jury on School Vouchers
This report from the Illinois Policy Institute finds vouchers have been established as constitutional. The report is an essential read for anyone hoping to understand the debate on SB 2494.

Justice O’Connor’s Supreme Court Opinion on Zelman
Then-Justice Sandra Day O’Connor explains the U.S. Supreme Court’s decision to uphold voucher programs as constitutional. She points to other programs that send public funding to religiously affiliated organizations and concludes, a “voucher program affords parents of eligible children genuine nonreligious options, and is consistent with the Establishment Clause.”

Are Vouchers Constitutional?
In this report from the Institute of Justice, the organization’s litigation director, Clint Bolick, gives an overview of the constitutionality of voucher programs. The report summarizes case law, state constitutions, and the idea of equal opportunity. Bolick suggests the best way to serve the Brown v. Board of Education decision for equal opportunity is to institute voucher systems.

Are Vouchers Constitutional?
This report by the Hoover Institution details how to create legislation that fits within the constitutional standards established by case law and Supreme Court decisions. The report shows the constitutional debate rests on how public aid is disbursed to religiously affiliated organizations, not what aid is distributed.

Three Objections to School Vouchers … Answered
Heartland Institute President Joseph Bast clears up three popular misconceptions about vouchers, regarding funding, dependence on government, and regulation of private schools.

For further information on this subject, visit the School Reform News Web at, or The Heartland Institute’s Web site at

Nothing in this message is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. If you have any questions about this issue or the Heartland Web site, contact Marc Oestreich, legislative specialist in education, at 312/377-4000 or [email protected].