TUITION GRANTS

While parents have a constitutional right to send their children to private rather than public schools (see pierce v. society of sisters, 1925), the exercise of that right costs money. Such parents not only bear their share of the taxes that support public schools but also pay tuition to their children's schools. Not surprisingly, a regular item of business in Congress and the state legislatures is a proposal to relieve this "double burden" through some form of governmental relief. Two types of constitutional problems beset such proposals. Governmental aid to private schools may be attacked as state action that promotes racial segregation or as an unconstitutional establishment of religion.

Soon after the decision in brown v. board of education (1954–1955), a number of southern states adopted a series of devices aimed at evading desegregation. One such device was the payment of state grants to private schools or to parents of private school children. The assumption was that when public schools were ordered to desegregate, white children would be withdrawn and placed in private schools. Some states went so far as to give local school boards the option of closing public schools and even selling those schools' physical plants to the operators of private schools which would be supported by tuition subsidized by the state. These private schools, it was expected, would be limited to white students. (More recently, federal civil rights legislation has been applied to forbid that type of "segregation academy" to refuse black applicants. See runyon v. mccrary.) The Supreme Court held these tuition grant programs unconstitutional as evasions of Brown in cases such as griffin v. county school board (1964) and Poindexter v. Louisiana Financial Assistance Commission (per curiam, 1968).

More recently, private schools in the North and West have acquired new white students following orders desegregating urban school systems. "White flight" means not only the departure of white families for the suburbs but also the transfer of white students from public to private schools. Estimates in the late 1970s suggested that as many as one-fifth of all enrollments in the nation's private schools were the result of "white flight." Proposals for governmental aid to private school children and their parents must therefore face a challenge based on the likely racially discriminatory impacts of various proposed forms of aid. Such impacts would not, of themselves, establish a constitutional violation; they would, however, be some evidence of an improper governmental purpose. (See

legislation.) Tuition grants limited to low-income parents of children enrolled in religious schools were held to violate the establishment clause in committee for public educationv. nyquist (1973). That decision did not settle the question of the constitutionality of a hypothetical program in which the state gave all parents education vouchers, to be used to support schools of their choosing, public or private, religious or secular. (See government aid to religious institutions; mueller v. allen.)

Proponents of voucher plans designed to aid private schools and their clienteles have gone to some lengths in an effort to tailor their proposals to meet these two types of constitutional objection. One proposal provides elaborate incentives for racial integration, such as bonuses for integrated schools. In the absence of strong incentives of some kind, it seems obvious that significant aid to private elementary and secondary education will have the effect of increasing racial segregation by increasing the educational mobility of middle class whites.

Kenneth L. Karst
(1986)

Bibliography

Sugarman, Stephen D. 1974 Family Choice: The Next Step in the Quest for Equal Educational Opportunity? Law and Contemporary Problems 38:513–565.