Are private-school voucher programs allowed under the U.S. and Tennessee Constitutions?

Subject

Opinion No. 13-27, Constitutionality of School Voucher Program, March 26, 2013

Plain-English summary

HB190, the "Tennessee Choice & Opportunity Scholarship Act," would have created a school voucher program. Eligible students were those zoned to or enrolled in a public school in the bottom 5% in overall achievement, who met certain age requirements, whose households met the income test for free or reduced-price lunch, and who had been enrolled in a Tennessee public school for the prior two semesters or were entering Tennessee schools for the first time. Eligible students could use vouchers at "participating schools," defined as non-public schools (including religiously affiliated ones) that met various requirements: state assessments, non-discrimination, financial audits, criminal background checks for staff, and acceptance of the voucher as full tuition payment. Voucher amounts were capped at the lesser of the school's actual tuition or the per-pupil state and local funds the student's LEA would otherwise receive. The bill ramped up from 5,000 vouchers in 2013-2014 to 20,000 in 2016-2017 and thereafter.

The AG opined HB190 was defensible from a facial constitutional challenge.

Federal Establishment Clause. Zelman v. Simmons-Harris, 536 U.S. 639 (2002), upheld Ohio's school voucher program against an Establishment Clause challenge. The Court reasoned that "where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause." HB190 fit the same template. It targeted economically disadvantaged children in failing schools, was neutral with respect to religion, and routed any flow of money to religious schools through the independent choice of parents.

Tennessee Establishment Clause. Article I, section 3 of the Tennessee Constitution declares that "no preference shall ever be given, by law, to any religious establishment or mode of worship." The Tennessee Supreme Court has called this "practically synonymous" with the federal Religion Clauses (Carden v. Bland, 1956), though sometimes "broader and more comprehensive." In practice, Tennessee courts have interpreted the state's religion clauses using the same principles federal courts apply to the First Amendment. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001). Under that framework, HB190 was defensible because, as in Zelman, the bill at most incidentally supported religious schools via parental choice, which is not a "preference" for any religious establishment.

Blaine Amendment. This was the AG's key structural observation. Many states have "Blaine Amendments" in their constitutions, named after Speaker James Blaine's 1875 proposal. These provisions ban any public money from supporting religious instruction or institutions. Where a state has a strong Blaine Amendment (Arizona, Florida), state supreme courts have struck down voucher programs even when those programs passed federal Establishment Clause review under Zelman. Cain v. Horne, 202 P.3d 1178 (Ariz. 2009); Bush v. Holmes, 919 So.2d 392 (Fla. 2006). Tennessee does not have a Blaine Amendment, so this independent state ground was unavailable to voucher opponents.

Education Clause. Article XI, section 12 requires the General Assembly to provide for a "system of free public schools." Under Tennessee Small School Systems v. McWherter (Small Schools I, 1993), this obligates the state to maintain a system providing "substantially equal educational opportunities to all students." But the Court emphasized the legislature has flexibility in how it meets that obligation. A limited voucher program for the bottom 5% did not violate the Education Clause because it did not impair the main public school system; it supplemented it.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The voucher landscape has changed significantly since 2013. Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020), and Carson v. Makin, 142 S.Ct. 1987 (2022), held that state-level Blaine Amendments cannot be used to exclude religious schools from generally available state aid programs without violating the federal Free Exercise Clause. Tennessee has enacted its own voucher program (the Education Savings Account program, codified in 2019, with subsequent expansions). Anyone analyzing a current Tennessee voucher question should look at the current statute, the post-Espinoza federal landscape, and the live Tennessee state court litigation over the ESA.

Background and statutory framework

HB190 as proposed. The bill defined eligible students by four criteria: zoning/enrollment in a bottom-5% public school, age, household income at or below the free/reduced-lunch threshold, and prior-year public-school enrollment (with exceptions for new entrants and prior scholarship recipients).

Participating schools had to be non-public, voluntary, give annual notice of intent to participate, be categorized I, II, or III under state regulations, administer state or approved national assessments, share student results, report graduation and other data, comply with non-discrimination policies, accept students with special education needs, accept the voucher as full payment, allow scholarship students to remain enrolled if the school withdrew mid-year, submit to financial audits, demonstrate financial viability (potentially through a surety bond), and require criminal background checks for staff in close proximity to children.

The Department of Education had to notify parents of eligibility, accept applications, conduct a random lottery if applications exceeded available slots, create a standard application, set timelines, remit payments to participating schools, and publish annual achievement data.

Voucher amount: the lesser of the school's tuition and fees or the per-pupil state and local funds for the student's LEA under the Basic Education Program (BEP) formula.

Scholarship ramp: 5,000 (2013-14), 7,500 (2014-15), 10,000 (2015-16), 20,000 (2016-17 and thereafter).

The Zelman framework. Zelman analyzed three things: (1) the program's purpose (must be secular), (2) whether it had the impermissible effect of advancing religion, and (3) whether private choice of beneficiaries broke any direct flow of government aid to religion. HB190 passed on all three. The purpose was educational aid to disadvantaged children. The effect was neutral toward religion, with any aid to religious schools attributable to parental choice, not state preference. The bill had the indirect-aid structure Zelman approved.

The Blaine Amendment context. In 1875, James Blaine, then Speaker of the U.S. House, proposed amending the U.S. Constitution to prevent any federal money "appropriated to support schools" from going to "any sectarian school." The amendment was driven in part by anti-Catholic sentiment in an era when public schools were heavily Protestant and Catholic immigrants wanted to support their own parochial schools. The federal amendment fell four votes short, but over the next 20 years, nearly 30 states enacted state-level Blaine Amendments. Today about 37 states have some version of one.

Tennessee does not. Article I, section 3 of the Tennessee Constitution is a religious-freedom and establishment provision but does not include the strict "no public money to support sectarian schools" language characteristic of Blaine Amendments. So the AG's analysis tracked the federal Establishment Clause analysis without an independent state bar.

Education Clause. Tennessee Small School Systems v. McWherter (Small Schools I, 1993) and the follow-on cases held that the Tennessee Constitution guarantees substantially equal educational opportunities to all Tennessee schoolchildren and that funding disparities can violate this guarantee. But the Court was careful: "The means whereby this obligation is accomplished is a legislative prerogative." The General Assembly has flexibility on means. The AG had already opined in Op. 12-68 that article XI, section 12 does not bar an LEA from sponsoring a charter school, and HB190 fit a similar pattern.

Common questions

Why doesn't a voucher program "establish" religion when public money ends up at religious schools?

The Establishment Clause is concerned about government endorsement and direct support of religion. Zelman drew the line at private choice. When the state writes a check that the parent can use at any qualifying school (public, secular private, religious private), and the parent chooses to use it at a religious school, the funding flows to religion only because of an independent private decision. The Court treats that as constitutionally different from the state directly funding a religious school.

What is a Blaine Amendment and why does it matter?

A state constitutional provision banning public money from going to sectarian schools. About 37 states have them. Where they exist, they can defeat voucher programs even when Zelman would uphold them federally. Tennessee doesn't have a strict Blaine Amendment, so this defense isn't available to voucher opponents in Tennessee.

Does the bottom-5% restriction matter constitutionally?

It helps. Zelman emphasized the Ohio program's targeting of failing schools as evidence that the purpose was educational, not religious. HB190 used the bottom-5% trigger plus an income test, which doubly underscored that the purpose was helping disadvantaged students.

What about the Education Clause "system of free public schools" language?

That clause requires the state to provide a public school system; it doesn't require the state to provide only a public school system. HB190 didn't dismantle the public system. It offered a limited supplement for students in the bottom 5% who met income tests. The legislature retains broad discretion on how to fulfill its constitutional educational obligations.

Was HB190 enacted?

HB190 itself was not enacted as the law it was when this opinion issued. Tennessee did eventually enact a voucher program (ESA) in 2019 with subsequent expansions; that program has its own litigation history and is the relevant statute for current questions about Tennessee vouchers.

Citations

Tenn. Const. art. I, § 3 (religion); art. XI, § 12 (education). U.S. Const. amend. I (Establishment Clause). Federal cases: Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Agostini v. Felton, 521 U.S. 203 (1997); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993); Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986); Mueller v. Allen, 463 U.S. 388 (1983). Tennessee religion cases: Carden v. Bland, 288 S.W.2d 718 (Tenn. 1956); Medicine Bird Black Bear White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001); Entman v. City of Memphis, 341 F. Supp. 2d 997 (W.D. Tenn. 2004). State voucher cases: Cain v. Horne, 202 P.3d 1178 (Ariz. 2009); Bush v. Holmes, 919 So.2d 392 (Fla. 2006); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999); Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998). Education Clause cases: Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993) (Small Schools I) and 894 S.W.2d 734 (Tenn. 1995) (Small Schools II). Facial-vs-as-applied: Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-027.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 26, 2013

Opinion No. 13-27

Constitutionality of School Voucher Program

QUESTION

Does the school voucher program proposed by an amendment to Senate Bill 196/House Bill 190 of the First Session of the 108th Tennessee General Assembly (hereinafter "HB190") violate either the United States or Tennessee Constitution, specifically the Establishment Clause of the First Amendment of the United States Constitution or article XI, section 12 of the Tennessee Constitution?

OPINION

The proposed amendment to HB190 is defensible from a facial constitutional challenge.

ANALYSIS

HB190, the "Tennessee Choice & Opportunity Scholarship Act," would create a school voucher program applicable to certain Tennessee K-12 students. Under the provisions of the amendment proposed to HB190, an "eligible student" is defined as one who (1) is zoned to attend or enrolled in a public school that is in the bottom five percent of schools in overall achievement as determined by the State Board of Education, (2) meets certain age requirements, (3) is a member of a household whose annual income during the year prior to initial receipt of a scholarship met the requirements for a free or reduced price lunch under federal law, and (4) was previously enrolled in a Tennessee public school during the two semesters immediately preceding the semester in which the student receives a scholarship, is enrolling in a Tennessee school for the first time, or received a scholarship in the previous school year. HB190, § 3(2).

A "participating school" is defined as a non-public school that seeks to "enroll eligible students." Id. § 3(4). A participating school must (1) voluntarily agree to participate; (2) annually provide notice to the Tennessee Department of Education of an intent to participate; (3) be identified as a category I, II, or III school pursuant to State education laws and regulations, and comply with all applicable health and safety codes; (4) annually administer state assessments as provided by State law, or nationally recognized educational progress tests approved by the State Board of Education; (5) provide parents the results of the school's students' annual assessments; (6) provide the Department with student information regarding graduation rates and other data required by the Department; (7) comply with non-discrimination policies; (8) not discriminate against students with special education needs; (9) accept the scholarship amount provided as payment in full for the cost of tuition and fees that would otherwise be charged by the school; (10) agree to allow scholarship students to remain enrolled in the school for the entire school year at no additional cost if the school withdraws from the program during the school year; (11) submit to the Department a financial audit of the school; (12) demonstrate financial viability to repay any funds that may be owed to the State by filing with the Department financial information or an appropriate surety bond; and (13) require any person applying as a teacher or any other position requiring close proximity to children to submit to a criminal background check.

The maximum annual amount an eligible student may receive is to be equal to the lesser of either the cost of tuition and fees that would otherwise be charged by the school or the amount representing the per pupil state and local funds generated and required through the Basic Education Program (BEP) for the local education agency in which the student resides and is zoned to attend. Id. §§ 7(a) & (b).

HB190 provides for the number of scholarships to increase over the first four years of implementation, with no more than 5,000 scholarships awarded for the 2013-2014 school year, no more than 7,500 scholarships awarded for the 2014-2015 school year, no more than 10,000 scholarships awarded for the 2015-2016 school year, and no more than 20,000 scholarships awarded for the 2016-2017 school year and thereafter. Id. § 8.

The amendment to HB190 creates a limited voucher program. Vouchers are only available to students of a household whose annual income meets the requirements for a free or reduced price lunch under federal law, thus evidencing a legislative intent to only provide vouchers to economically disadvantaged students. Id. § 3(2). And, although a "participating" non-public school that may admit students who have been awarded a voucher scholarship must meet several qualifying requirements, such a school may include a religiously affiliated educational institution. See id. § 4.

HB190 as proposed to be amended is defensible from a facial constitutional challenge. Initially, HB190 does not violate the Establishment Clause of the First Amendment of the United States Constitution. In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the United States Supreme Court considered whether an Ohio school voucher program violated the Establishment Clause. This clause, applied to the states through the Fourteenth Amendment, prevents a State from enacting laws that have either the "purpose" or "effect" of advancing or inhibiting religion. Zelman, 536 U.S. 639, 648-49 (quoting Agostini v. Felton, 521 U.S. 203, 222-223 (1977)). The Ohio voucher program reviewed by the Court was enacted for the purpose of providing educational assistance to poor children in a failing public school system. Id. at 643-48. The Court therefore directed its attention to the question of whether the Ohio program had the forbidden "effect" of advancing or inhibiting religion. The Court concluded that Ohio's voucher system, which had as its primary purpose the assistance of economically disadvantaged students and was "neutral in all respects toward religion," did not run afoul of the Establishment Clause. Id. at 651-63. The Court reasoned:

[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.

Id. at 652.

HB190 is defensible against an Establishment Clause challenge for the same reasons articulated in Zelman. HB190 is designed to provide assistance to students in need, and the students receiving such need select from qualifying participating nonpublic schools which may or may not have a religious affiliation. Thus, like the Ohio voucher system in Zelman, HB190 by its terms primarily intends to provide aid and school choice to economically disadvantaged students and at best only incidentally would benefit a qualifying sectarian school.

This same analysis would equally apply to any challenge under the Establishment Clause of the Tennessee Constitution. Tennessee's Establishment Clause states "that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship." Tenn. Const., art. I, § 3.

The Tennessee Supreme Court has characterized Tennessee's Establishment Clause as "practically synonymous" with the religion clause of the First Amendment. Carden v. Bland, 199 Tenn. 665, 672, 288 S.W.2d 718, 721 (1956). However, the Court also observed that Tennessee's Establishment Clause is "broader and more comprehensive in its guarantee of freedom of worship and freedom of conscience." Carden, 288 S.W.2d at 721. As the Tennessee Court of Appeals explained in State ex rel. Commissioner of Transportation v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 761-62 (Tenn. Ct. App. 2001), Tennessee courts have consistently construed and applied the free exercise protections in Tenn. Const. art. I, § 3 using the same principles employed by the United States Supreme Court. This same analysis should apply as well to the establishment provisions of article I, section 3.

In this regard, Tennessee's Constitution lacks a provision adopted by other states that expressly bans the use or appropriation of any public money to support any religious instruction or establishment. These provisions, referred to as "Blaine Amendments" after former United States House Speaker and presidential candidate James Blaine, place much greater restraints on a state's ability to provide any public funds to a religiously affiliated educational institution.

Several state jurisdictions with Blaine Amendments or similar constitutional language have invalidated school voucher programs on the basis that these programs transgressed these constitutional limits. See, e.g., Cain v. Horne, 202 P.3d 1178, 1180-84 (Ariz. 2009) (en banc); Bush v. Holmes, 919 So.2d 392, 410-11 (Fla. 2006). Several states lacking a Blaine-type provision have generally sustained voucher programs against state and federal constitutional challenges. See, e.g., Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999); Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).

Finally, HB190 is defensible against a facial challenge under the Education Clause of the Tennessee Constitution, Tenn. Const., art. XI, § 12. In Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, 151 (Tenn. 1993) (Small Schools I), the Tennessee Supreme Court held that the Tennessee Constitution guarantees to the school children of the State the right to a free public education and imposes upon the General Assembly the obligation to maintain and support a system of free public schools that affords substantially equal educational opportunities to all students. The Court nonetheless emphasized that, absent disparate treatment, the Tennessee Constitution affords the Legislature flexibility in determining how the obligation to provide a free public education is accomplished, stating: "The means whereby this obligation is accomplished is a legislative prerogative." Small Schools I at 141.

HB190 provides the parents of a limited number of Tennessee schoolchildren attending the public schools in the bottom five percent in terms of scholastic achievement the voluntary choice of utilizing a voucher program to attend a private school that is subject to state educational requirements. In light of the Tennessee Supreme Court's recognition of the General Assembly's constitutional flexibility in the field of education, the program created by HB190 should be defensible to a facial challenge based upon article XI, section 12, of the Tennessee Constitution. See Small Schools I at 140-56. See also Tenn. Att'y Gen. Op. 12-68 (opining that article XI, section 12 is not violated by allowing an LEA to sponsor a charter school).

This Office is aware of no other possible facial constitutional infirmities to the passage of HB190 as proposed to be amended. Accordingly HB190 should be defensible from a facial constitutional challenge.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

KEVIN STEILING
Deputy Attorney General

Requested by:
The Honorable Craig Fitzhugh
State Representative
33 Legislative Plaza
Nashville, TN 37243-0182

The Honorable Gary Odom
State Representative
36 Legislative Plaza
Nashville, TN 37243-0167