Vouchers and the Privatization of American Education: Justifying Racial Resegregation from Brown to Zelman
Klint Alexander & Kern Alexander | 2004 U. Ill. L. Rev. 1131
In Brown v. Board of Education the Supreme Court held that sepa-rate educational facilities for blacks and whites were inherently unequal. Since Brown, those seeking to avoid desegregation have found a powerful weapon in school vouchers, which enable parents to practice private discrimination with public dollars. The prevailing Supreme Court interpretation of the First Amendment’s Establishment Clause permits the government to support parochial schools so long as it does not effectively establish a state religion or express a preference for one religion over another. Earlier, the Supreme Court in Griffin v. County School Board of Prince Edward County and Green v. County School Board of New Kent County required that states abandon devices like vouchers and tuition assistance when they are used to promote segregation. More recently, though, a line of cases from Board of Education of Central School District No. 1 v. Allen to Zelman v. Simmons-Harris has paved the way for the establishment of voucher programs by allowing government support for religious educational institutions where such support does not have the effect of advancing or inhibiting religion and the assistance is given to a broad class of private individuals whose allocation of the funds is determined by personal choice. The Supreme Court’s approval of such tuition assistance programs portends a new regime of aid to private and religious schools, contributing to the resegregation of American education.