Public Funds, Private Schools: The Constitutional Question of Vouchers

In 2024, in Oklahoma Statewide Charter School Board v. Drummond (2025), the Supreme Court struck down Oklahoma’s plans to create a virtual Catholic charter school, citing it as an unconstitutional use of government funding for religious purposes. [1] Yet, the same Court has allowed states to fund the same outcome—religious education—through school voucher programs. School vouchers are government-funded grants that parents can use to “send their kids to the school of their choice, even private, religiously affiliated schools.” [2] This funding is typically set aside for low-income families, children with disabilities, or families zoned to a failing school system to find alternative school funding. Although these vouchers appear to offer benefits on the surface, they have negative constitutional implications; their foundations pose a threat not only to the Constitution but also to public education funding. 

If government funding of religious education violates the Establishment Clause when delivered through charter schools, why doesn't it also violate the clause when delivered through vouchers to parents who then pay religious schools? The primary difference between these programs lies in their administrative structure. One violates the Establishment Clause because the government directly operates it, while the other survives constitutional scrutiny because parents serve as middlemen. Both, however, result in taxpayer dollars funding religious instruction. The Supreme Court's contradictory treatment of religious charter schools and school voucher programs exposes a failure to apply consistent Establishment Clause reasoning. By allowing government-funded religious education through vouchers while prohibiting it through charter schools, the Court has adopted a formalistic "private choice" doctrine that prioritizes method over constitutional substance, enabling the weakening of the Establishment Clause's core protection against taxpayer funding of religious indoctrination while simultaneously defunding public education and deepening educational inequality for low-income students.

The Establishment Clause has historically protected taxpayers from being compelled to fund religious activities. Yet, the Court's recent treatment of religious charter schools in Oklahoma Statewide Charter School Board v. Drummond (2025) reveals this protection applies inconsistently when the same outcome is achieved through different administrative mechanisms. The original text of the Establishment Clause specifically prohibits the government from making any law “respecting an establishment of religion.” [3] This phrasing not only prohibits the government from establishing a national religion but also denies it the ability to favor one religion over another, or religion over nonreligion. Though, because of the brevity of this clause, its application to cases has been inconsistent. It lacks provisions that would help navigate when the clause has been breached, and because government action implicating religion is essentially unavoidable, it is hard to know how much involvement the Establishment Clause allows.

The tension between prohibiting government-funded religious education while permitting it through indirect mechanisms has its roots in pre-formalized constitutional tests. In Everson v. Board of Education (1947), the Court interpreted the Establishment Clause to mean that "no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." [4] Yet in the same decision, the Court upheld a New Jersey law authorizing reimbursement by local school boards for transportation costs to and from schools, including private schools, some of which were parochial Catholic schools. In a 5-4 decision, Justice Black, writing for the majority, stated that the law was constitutional because it neither paid money to parochial schools nor directly supported them in any way. [5] It was enacted neutrally to assist parents of all religions with getting their children to school through the use of public buses. This decision signaled an early embrace of parental intermediation as a constitutional shield and established a precedent that would shape Establishment Clause interpretation in the future; the administrative route of funding matters more than its ultimate destination.

One of the earliest solutions to this Establishment Clause interpretation issue was found in the “Lemon test”, derived from the case Lemon v. Kurtzman (1971). While Everson established the principle that direct government funding of religion violates the Constitution, it lacked a systematic framework for determining when government actions cross this line. The Lemon test emerged to formalize these constitutional boundaries, crystallizing concerns about government involvement with religion into three concrete requirements. In this case, the Supreme Court held that both Pennsylvania and Rhode Island violated the Establishment Clause due to their laws allowing state funding of teacher salaries in church affiliated educational institutions. [6] These laws establish provisions for funding to partially support the salaries of teachers in religious schools, who teach secular subjects (e.g., math, English, science) in institutions that struggle to cover operational costs. In order to aid in deciding this case, the Court implemented a tri-part test to determine if religiously affiliated laws, broadly speaking, were permitted under the First Amendment’s Establishment Clause.

Under the Lemon test, a government action is constitutional–and does not violate the Establishment Clause– only if it (1) “[has] a secular purpose”; (2) [has] a main effect “that neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion.” [7] These principles helped establish guidelines for dealing with cases involving the separation between church and state. Although no case is identical, these points provided justices with a framework for consideration when deciding cases in this context. The success of the Lemon test was evident in cases such as Grand Rapids School District v. Ball (1985) and Aguilar v. Felton (1985), both of which had rulings stating that their programs in question were unconstitutional. In both cases, the Court found that though the reference programs had secular intentions, they still unnecessarily—through funding of religious schools with government aid—resulted in “the excessive entanglement of church and state.” [8] Thus, they effectively failed Clause Three of the Lemon test and were deemed unconstitutional because, although state aid to religious institutions may not primarily advance a religion, it still violates the Establishment Clause because it elicits an interaction between church and state in the giving of that aid. 

Despite its effectiveness, the Lemon test was eventually removed from practice by the courts almost seven decades later, with the case Kennedy v. Bremerton School District (2022). This ruling held that football Coach Kennedy’s choice to kneel and pray on the field after games did not violate the Establishment Clause of the First Amendment. The majority opinion by Justice Neil Gorsuch made clear that the Court had “long ago abandoned” the infamous “Lemon test” and would henceforth reference “historical practices and understandings” in accordance with the Founding Fathers. [9] This opinion was fragile on its historical evidence for the overall argument. Still, most importantly, the Court in Kennedy abandoned the Lemon test without developing a new test to replace it. Instead, they pivoted towards a vague and undirected concept of following “original meaning and history of constitutional language” when deciding cases regarding the church and state. [10] It is this broad interpretation that leads to inconsistencies across the Court, as seen in comparison between the school voucher program and the recent case, Oklahoma Statewide Charter School Board v. Drummond (2025).

In this case, an Oklahoma-based school, St. Isidore Catholic Virtual School, applied to be identified as a charter school to receive funding. Their application was rejected on the grounds of the Establishment Clause, as Charter schools are state actors performing government functions. [11] Government money directly funding religious instruction, students receiving publicly-funded religious education, and state oversight all contribute to this church-state entanglement. This same logic of government entanglement should extend to vouchers based on three principles. The first being that two have the same funding source: taxpayer dollars appropriated by state legislatures. Secondly, the same educational outcome: students receive publicly-funded religious instruction. Lastly, they have the same institutional benefit: over 90% of any given state voucher funds support religious school education in the United States. [12] If the point that denotes a constitutional violation is "government funding religious instruction," one intermediary step, such as parental choice, cannot remedy that violation. Yet this is precisely the sleight of hand the Court performs in separating vouchers from charter schools, emphasizing procedural form over substance.

The Court distinguishes school vouchers from religious charter schools through the "private choice" doctrine. They claim that parental decision-making acts as a constitutional element to the case, but in reality, this represents the flaws of constitutional formalism. The core meaning of the word formalism “lies in the concept of decision-making according to rule.” [13] It is the process by which one separates their ruling from decision-making factors that a more sensitive decision-maker would otherwise take into account, and this separation often happens through the “force of language in which rules are written.” [14] In other words, the formalistic approach ignores social and policy contexts and operates solely on a potentially misguided model of language that limits judicial flexibility. The excessive reliance on the language of a rule is what allows for the lax interpretation of the Establishment Clause and the decision seen in Zelman. This formalistic view of the Constitution and its interpretation is transforming what should be an Establishment Clause violation into protected activity by simply adding an intermediary step—“private choice”—between the government and religious institutions. 

The “private choice” doctrine originated from discourse over an Ohio-based school voucher program in Zelman v. Simmons (2002), a case in which a split Court decided that states are allowed to fund school voucher programs to give parents tuition money to help their children attend a private school (including religious ones) of their choice because the vouchers do not solely promote the selection of religious schools alone. In the opinion of the majority, Justice Rehnquist emphasized the principle of private choice, stressing that religious schools only received taxpayer money “as a result of numerous, private choices of individual parents of school-aged children,” thus the voucher program was not unconstitutional. [15] 

The basis of this argument lies in the idea that there is neutrality in the voucher programs, given that parents could theoretically choose to send their children to secular schools. However, this concept of “choice” is inherently tenuous. This point is corroborated by the dissenting opinion of the four remaining justices led by Justice Souter, who argue that if “choice” is considered whenever there is an educational alternative to a religious school then there will always be a “choice” and the voucher can always be constitutional “even in a a system in which there is not a single private secular school as an alternative to the religious school.” [16] In other words, if the mere existence of a public school system counts as providing an alternative choice, then no voucher program could ever violate the Establishment Clause. In a case where a parent is forced to choose between sending their child to a failing public school and a well-funded religious academy, they are not exercising a meaningful choice. Inherently, that parent is being swayed towards the latter option through economic coercion. 

The affirming justices' ignorance of the fact that 96% of the children participating in the Ohio voucher program attended religiously affiliated private schools poses a threat to the Establishment Clause. As dissenting Justice Souter alludes to, it is nearly impossible that 96% of voucher participants genuinely and freely chose to send their children to private schools with religious education. In reality, many students and their families are non-religious but attend those schools simply for the educational benefit and nothing else. However, because of this, they are subject to religious teachings, so how much “free choice” is really going into these decisions. It is willfully ignorant of the Court to bypass the language used in Everson v Board of Education (1947) (“no taxes in any amount, large or small, can be levied to support any religious activities or institution…”) and still approve of Ohio’s vouchers. [17] The Court, by ignoring Everson and claiming to base the decision on the traditional law and neutrality, commits a gross misreading of the meaning of the word and the text of the Establishment Clause. 

The unprincipled practice of school vouchers has its roots in cases like Zelman and continues to the present, manifesting in states across the country. A nationwide voucher program under the guise of the Education Choice for Children Act was enacted with the passage of the “Big Beautiful Bill” by the GOP in July. What makes this program different from state or federally sponsored vouchers is that it encourages vouchers to be funded by parents or citizens who would make donations to what are known as Scholarship Granting Organizations (SGOs). Similar to how individuals can receive tax cuts by donating to charities that support food banks, churches, and homeless shelters, by donating to an SGO, citizens can receive even more benefits. [18] The advantage of donating to private schools or SGOs is two to three times more financially rewarding than donating to other charitable organizations. This is because, through this program, the federal government will give donors a generous dollar-for-dollar tax credit on their full donations. Consequently, this would make the program more of a handout and tax cut for the wealthier and affluent families, while actively reducing the amount of money flowing into public schools.

Moreover, typically, voucher amounts don’t exceed $3,000, and the average tuition price for private schools is around $13,000; therefore, even with aid, low-income families cannot afford the tuition gap. [19] Thus, "choice" is theoretical for those who need it most, and real only for middle-class and upper-class families who can already afford private school. Vouchers subsidize middle-class flight while abandoning low-income students. Therefore, by default, voucher programs keep underperforming schools at the bottom and potentially give a few students in those schools access to a better education. The idea of neglecting to try and fix the school system as a whole but instead focusing on giving aid to a select few is unethical. 

The Supreme Court's contradictory treatment of religious charter schools and voucher programs reveals more than a technical inconsistency in Establishment Clause jurisprudence, but it exposes a constitutional framework that has been manipulated to permit what it explicitly forbids. By striking down St. Isidore Catholic Virtual School while upholding voucher programs that fund the identical outcome, the Court is succumbing to the inadequate formalistic technique of decision-making. The "private choice" doctrine is not a principled constitutional standard but a legal fiction that obscures taxpayer funding of religious instruction behind the fallacy of parental autonomy.

When over 90% of voucher recipients nationwide attend religious schools, when voucher amounts fail to cover tuition gaps that exclude low-income families, and when federal tax credits now incentivize wealthy donors to redirect public funds toward private religious education, "choice" fails to function as a constitutional principle and more so as a strategy for dismantling public education. The Court's abandonment of the separation between church and state principle through formalism does not make voucher programs constitutional; it merely demonstrates how far the Court has strayed from the Establishment Clause's original purpose. If the constitutional violation is government funding of religious instruction, then that violation exists whether the check is written directly to St. Isidore Catholic Virtual School or routed through a parent's bank account to an identical religious academy down the street. 

Access to a quality education should be for everyone; thus, money for voucher programs should be redirected to the public schools in need. There would be hardly any purpose for vouchers should there be a firm dedication to rebuilding and fixing public school systems across the country. Only then can we ensure that educational opportunity—and constitutional principles—are accessible to everyone, not just those wealthy enough to bridge the tuition gap or willing to accept religious instruction as the price of a quality education.

Edited by Liam Dreyer and Ashley Park

[1] Oklahoma Charter School Board v. Drummond, 605 U.S. (2025)

[2] Cory Turner, “School Vouchers 101: What They Are, How They Work — And Do They Work?” NPR, December 7, 2016, https://www.npr.org/sections/ed/2016/12/07/504451460/school-choice-101-what-it-is-how-it-works-and-does-it-work.

[3] David Carlson, “Establishment Clause.” LII / Legal Information Institute. Cornell Law School, June 3, 2017. https://www.law.cornell.edu/wex/establishment_clause.

[4] Everson v. Board of Education, 330 U.S. 1 (1947)

[5] Everson v. Board of Education, 330 U.S. 1 (1947)

[6] Trinity Kipp, “The Lemon Test: Its Inception, Application, and Death”, Cornell Journal of Law and Public Policy, October 10, 2023, https://publications.lawschool.cornell.edu/jlpp/2023/10/10/the-lemon-test-its-inception-application-and-death/.

[7] “ Amdt1.3.3 Establishment Clause Tests Generally”, Library of Congress, 2018, https://constitution.congress.gov/browse/essay/amdt1-3-3/ALDE_00013073/.

[8] Grand Rapids School District v. Ball, 473 U.S. 373 (1985)

[9] Kennedy v. Bremerton School District, 597 U.S. (2022)

[10] Kennedy v. Bremerton School District, 597 U.S. (2022)

[11] Oklahoma Charter School Board v. Drummond, 605 U.S. (2025)

[12] Laura Meckler & Michelle Boorstein, “Billions in Taxpayer Dollars Now Go to Religious Schools via Vouchers”, The Washington Post, June 3, 2024, https://www.washingtonpost.com/nation/2024/06/03/tax-dollars-religious-schools/.

[13] Frederick Schauer, "Formalism," Yale Law Journal, March 1988, 97, no. 4: 510

[14] Schauer, "Formalism, " 97, no. 4: 512

[15] Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

[16] Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

[17] Everson v. Board of Education, 330 U.S. 1 (1947)

[18] Adrian Smith, “H.R.833 - 119th Congress (2025-2026): Educational Choice for Children Act of 2025”, Congress.gov. 2025. https://www.congress.gov/bill/119th-congress/house-bill/833/text.

[19] Neal Morton, “What’s a Tax Credit Scholarship? The Details behind the First National School Voucher Program.” The Hechinger Report, August 1, 2025. https://hechingerreport.org/whats-a-tax-credit-scholarship-the-details-behind-the-first-national-school-voucher-program/.