As our country was being formed, states such as Connecticut, Georgia, Maryland, Massachusetts, New Hampshire, South Carolina, and Virginia adopted state religions that citizens were taxed to fund and expected to follow. In response to this infringement on personal freedom, the U.S. Constitution was amended to include language, called the Establishment and Free Exercise Clauses, forbidding the establishment of a government religion and guaranteeing individuals the freedom to practice or not practice religion. These clauses read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Opponents of education choice programs that allow students to voluntarily use publicly funded education choice scholarships to pay for tuition at religious schools assert that these choice programs are unconstitutional primarily because they violate the Establishment Clause. In essence, legally equating families who freely choose to send their child to a religious school using a publicly funded scholarship with a government coercing people to support a state religion. The courts have made clear this argument has no merit and is dead on arrival. But opponents keep trying.
Teachers unions are the most aggressive opponents of education choice programs. The National Education Association (NEA), the nation’s largest teachers union, says, “Voucher programs drain resources from public schools and funnel those resources to private and religious schools, violating the Establishment Clause.” The second largest union, the American Federation of Teachers (AFT), agrees.
Other prominent opponents concur with the teachers unions’ reasoning. People for the American Way believes that “By using taxpayer money to fund private religious education, voucher programs violate the Establishment Clause.” The Freedom From Religion Foundation (FRF) writes that, “School voucher schemes unconstitutionally entangle government with religion by directing public funds to parochial schools, thereby violating the Establishment Clause.”
Americans United for the Separation of Church and State (Americans United) asserts that education choice programs violate both the Establishment and Free Exercise Clauses. “School vouchers funnel taxpayer money to private religious schools…This violates the Establishment Clause and the religious freedom of taxpayers.”
The Southern Poverty Law Center (SPLC) makes a similar argument. “School voucher programs that funnel taxpayer dollars to private, religious schools violate the Establishment Clause of the First Amendment by compelling taxpayers to support religious instruction and activities. Such programs erode the separation of church and state, a foundational principle of our democracy.”
Suggesting that the Establishment and Free Exercise Clauses give individual taxpayers the right to circumvent elected representatives and decide for themselves how government spends their taxes is a rejection of democratic governance. Expecting a fire department to check with its local taxpayers to determine whose taxes may be used to fund putting out fires at churches is impractical.
The American Civil Liberties Union (ACLU) invents a “constitutional principle” when it claims, “Voucher programs, which divert taxpayer dollars to private, often religious schools, undermine the fundamental constitutional principle of separation of church and state.”
The phrase “separation of church and state” is not a constitutional principle. It does not appear in the U.S. Constitution. Thomas Jefferson used this phrase in an 1802 letter to the Danbury Baptist Association in Connecticut to reinforce the intent of the Establishment and Free Exercise Clauses, which is that government should not interfere with citizens’ right to practice or not practice religion unless this practice violates public laws. The state will not allow a religion to construct a building without a government permit or abuse children. The U.S. Constitution requires the relationship between religion and government to be appropriate but not nonexistent.
Beginning with the Zelman v. Simmons-Harris ruling in 2002 and continuing with the 2020 Espinoza v. Montana Department Revenue case and the Carson v. Makin decision in 2022, the U.S. Supreme Court has consistently ruled over the past two and a half decades that programs providing public funds to help families pay for educational services offered by religious organizations are constitutional, provided families make these choices freely. These court rulings suggest an Establishment Clause violation occurs only when a family’s decision to use public funds to pay a religious organization for educational services is influenced by government coercion.
Despite the weakness of their legal arguments, the ACLU, AFT, Americans United, FRF, NEA, and SPLC have supported lawsuits in Arizona, Florida, Indiana, Maine, Montana, Nevada, New Hampshire, North Carolina, Ohio, West Virgina, and Wisconsin challenging the constitutionality of K-12 programs that allowed families to purchase education services from religious organizations using public funds. But these groups have never legally challenged the constitutionality of prekindergarten and higher education students using public funds to attend religious schools.
Why do they support legally forbidding a high school senior from using public funds to pay tuition at a Catholic high school but look the other way two months later when this same student uses public funds to pay for tuition at the University of Notre Dame? The answer is tribal politics.
Humans are tribal. We are all members of multiple tribes, including tribes organized around political beliefs. To remain a tribal member, we must conform to that tribe’s beliefs, no matter how irrational they may appear to those outside the tribe.
Most of the AFT’s and NEA’s dues-paying union members work in K-12 school districts. Consequently, the AFT and NEA are highly motivated to protect the jobs and compensation of these members by opposing students using public funds to attend private schools that employ non-union teachers. Since most private schools are faith-based, these unions use the Establishment Clause violation argument as a legal and political weapon despite its ineffectiveness.
The NEA and AFT have far fewer members working in prekindergarten and higher education institutions. Consequently, they are less willing to spend money and political capital opposing students using public funds to attend religious schools in these two sectors.
Education choice opponents such as the ACLU, Americans United, SPLC, and most Democratic Party elected officials, are in the same political tribe as the NEA and AFT, and these two unions provide much of the money and grassroots activists that give this political tribe its power and influence. Therefore, these groups conform with the AFT’s and NEA’s legal reasoning for opposing publicly funded education choice programs and will continue to do so until the unions change their positions.
At a mid-1980s NEA convention, the delegates overwhelmingly rejected a resolution supporting magnet schools. As the floor manager for this resolution, I remember this defeat well. Opponents claimed magnet schools undermine neighborhood public schools and correctly argued that magnet schools are a manifestation of Milton Friedman’s initial school voucher proposal. A few years later, after thousands of NEA members began working in magnet schools, the union reversed its position and embraced magnet schools.
Today the NEA and AFT’s tribal partners all support magnet schools despite their school voucher lineage suggesting tribal loyalty is stronger than ideological consistency, and tribes will rationalize changing core positions to enhance their economic and political strength.
In Florida, teachers unions are slowly bleeding to death as thousands of unionized teachers leave to teach in a rapidly expanding array of new, non-unionized education settings such as homeschool co-ops, hybrid schools, and microschools. To survive, Florida teachers unions need to begin serving these teachers, including those working for religious organizations.
For more than 40 years, I have argued that teachers need to replace their old-school industrial unionism with a model that can serve teachers in diverse and decentralized settings. If they do not evolve, they will not survive. Nor will some of their tribal colleagues.
