School vouchers would be bad for Texas, no matter what the Supreme Court just said

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Tuesday’s decision by the U.S. Supreme Court regarding school vouchers makes it unconstitutional for states to exclude religious schools from programs that use tax dollars to pay private tuition. That’s a matter of constitutional concern for anyone worried the line between church and state is being blurred, especially in public schools.

But regardless of those concerns, one thing the decision does not do is change the fact that vouchers are a bad idea for Texas.

That said, Tuesday’s 6-3 opinion by Chief Justice John Roberts involving a voucher program in Maine will certainly add momentum to efforts by Gov. Greg Abbott to persuade the Legislature to change that come January.

The decision builds on two recent opinions involving programs that struck down laws in Missouri and Montana. The Montana law involved state grants for playground safety equipment, and the Missouri program had offered donors tax deductions for donations to a tuition assistance fund. In both cases, the programs excluded religious schools, in keeping with long-standing Supreme Court jurisprudence under the First Amendment’s Establishment Clause.

But in 2017 and 2020 respectively, the Supreme Court ruled that the discrimination against the religious schools was unconstitutional.

Writing for the majority, Roberts cast Tuesday’s decision as in perfect keeping with each of those decisions. He noted that in defending its program, Maine had argued that the First Amendment’s Establishment Clause prevented it from using state money to support a religious education. Both the trial court and the First Circuit Court of Appeals agreed with Maine, as did all three of the Democrat-appointed justices on the high court.

Roberts rejected that view. “There is nothing neutral about Maine’s program,” Roberts wrote. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”

Maine’s largely rural makeup renders it difficult for the state to make good on its own constitutional guarantee of a quality taxpayer-funded education for everyone. In many of its local government districts, there are no public schools available. And when that happens, Maine covers the tuition of students enrolled in private school. They just can’t be religious schools.

We understand — as anyone in Texas must — that in sparsely populated areas of a state, where public schools are often a long bus ride away, the guarantee of public education presents a difficult challenge. We understand as well that many private schools, including ones with a religious focus, provide a worthwhile alternative for some students. But when it comes to the constitutional separation of church and state, we worry that what starts as a stream will end as a river.

The prohibition against establishment has been upheld for generations — and for good reasons. As Justice Stephen Breyer notes in his dissent, the court has long balanced the seemingly contradictory religion clauses in the First Amendment. But Tuesday’s opinion seems to forget about the Establishment Clause entirely.

“The First Amendment begins by forbidding the government from making any law respecting an establishment of religion,” he writes. “It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.”

But now that the court has ruled, that question is largely decided. If Texas does adopt a voucher program, as Abbott is urging, it will now almost certainly have to be open to religious schools, no matter how religious they may be.

That’s just one more reason why lawmakers should oppose vouchers. The best case against them isn’t based on religion, or on the Constitution. Vouchers siphon funding and support from Texas’ public schools — and rather than making it easier for parents to use tax dollars to send their children to private schools, Texas should keep working to make the public schools the best they can be.

In a world that is increasingly divided, the schools serve as a unifying force in our nation and in our state. Nothing that the Supreme Court said in its ruling Tuesday changes that.

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