Many states have enacted programs to enable families to send their children to private schools. These programs range from vouchers that pay part or all of the child’s private-school tuition, to tax credits or deductions for private-school tuition and other expenses, to tax credits for donations to “tuition-scholarship organizations,” charitable organizations that provide scholarships for students to attend private schools.
As the Supreme Court has recognized, the goal of assisting low-income families in sending their children to the school of their choice is legitimate and even laudable. In Committee for Public Education and Religious Liberty v. Nyquist, the Court noted that “the tailoring of [a state program] to channel the aid provided primarily to afford low-income families the option of determining where their children are to be educated is most appealing.” Because the substantial majority of private elementary and secondary schools are religious schools, however, such programs raise issues of governmental subsidization of religion and are subject to constitutional challenge under the Establishment Clause of the First Amendment of the United States Constitution. In addition, not only do states have their own constitutional prohibitions similar to the Establishment Clause, but many also have additional constitutional provisions containing language that appears specifically to bar government aid to religion, religious instruction, and religious institutions.