Vouchers disproportionately benefit sectarian schools. By the year 2000, for example, approximately 96 percent of all vouchers were routed to religious schools in the Cleveland voucher program. This is simply bad public policy. When private funds are used, this close connection to religious schools does not raise concerns about voucher programs. But, when public funds are used to support schools that are overwhelmingly sectarian, there are concerns both as a matter of public policy and adequate separation of church and state.
Moreover, while the Cleveland voucher program was found constitutional by the U.S. Supreme Court in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), this does not automatically make all voucher programs constitutional. Dozens of states have written language into their constitutions that, in many cases, is far more explicit than the federal Establishment Clause in prohibiting public funds from being used to aid sectarian institutions. This fact was underscored in the 2002 ruling by a Florida circuit court striking down the state’s 1999 voucher law. The case is being appealed to the state’s Supreme Court.
It should also be noted that the Court’s ruling in Zelman does not support the proposition that religious institutions can discriminate on the basis of religion with public funding. Nor does it stand for the principle that the federal government can support religious activities. Zelman simply addresses whether public funds were directly funding religious institutions. Moreover, there are a number of factors the Courts will take into account in evaluating the constitutionality of publicly-funded voucher programs including whether the program provides a disproportionate benefit to religious schools versus private non-secular or public schools, and whether there is “genuine and independent private choice” within the voucher program.