The voucher bills try to avoid constitutional limitations on the use of public funds for private schools by attempting to dress vouchers as payments to parents and not directly to a private school. But it is a charade to pretend that public funds are not being paid to private schools.
One state constitutional concern is that a private school receiving public funding will, unavoidably, be considered a part of the "public education system." Section 1 of Article X requires that the public education system be "free from sectarian control."
Other explicit church/state prohibitions are found in the Utah Constitution, independent of the federal constitutional questions raised by the voucher legislation:
Article X, Section 8 of the Utah Constitution provides: "No religious or partisan test or qualifications shall be required as a condition of employment, admission or attendance in the state's education system."
Article X, Section 9 of the Utah Constitution provides: "Neither the state of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization."
Article 1, Section 4 of the Utah Constitution's Bill of Rights provides: "The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment."
It is clear, for example, that students attending the Catholic parochial school system and similar religiously based school systems would not be eligible for vouchers because their curricula includes religious instruction and worship as a part of the educational program and they are "controlled" by a "religious organization."
Private schools not "controlled" by a religious organization, but engaged in "any religious worship, exercise or instruction" would also be precluded from receiving voucher payments. The fact that the voucher law uses a parent as a conduit for the payment of public funds to the private school does not defeat the reality that public funds could be appropriated and applied to religious instruction.
It may be impossible for the State Board of Education - but not a court - to determine whether some private schools that spring up if the voucher law is adopted do or do not engage in religious worship, exercise or instruction.
Under the proposed voucher law, only minimal health, safety, testing and enrollment requirements must be met in order to qualify as a private school eligible to enroll voucher students. Section 810 of the proposed voucher law expressly prohibits any state agency or school district to regulate private schools beyond the minimal requirements set forth by the voucher law.
Presumably, any group with fundamentalist religious beliefs from creationism to polygamy and from mainstream to radical branches of Christian, Muslim, Jewish and other religions can establish a private school system and expect the taxpaying public to pay for instruction in such schools without any public supervision of the academic program offered.
The Utah Constitution's separation of religion from publicly funded education cannot be obeyed by state or local regulatory authorities when no public supervision of the curriculum of a private school receiving state vouchers is permitted. The same is not true for the courts, which will inevitably be called upon in lawsuits to investigate the curriculum of every private school receiving voucher funds.
The role of religion in our public school system has been and continues to be a divisive issue in Utah. For example, Utah's often-ignored "nons" have long resented the released-time program that is - as a practical matter - available only to students of the dominant religion.
The proposed voucher law promises to generate further divisiveness by obligating all taxpayers whether "nons" or non-"nons" to subsidize religious and other private education they do not abide by and have no control over.
If for no other reason, voters should reject the poorly drafted voucher law to avoid further aggravation of religious divisiveness in the community and substantial violations of the Utah Constitution.
The only beneficiaries of the voucher law will be the lawyers litigating the obvious state and federal constitutional issues raised by a proposal that appears to have no rational purpose justifying such a radical departure from the use of public tax funds to support public education.
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* JOHN J. FLYNN is professor emeritus at the S.J. Quinney College of Law at the University of Utah, where he taught law for 42 years.
