McGeorge School of Law

Proposition 38

Proposition 38:
Are Vouchers the Solution?

By Monica Williamson

Copyright © 2000 by University of the McGeorge School of Law

JD, McGeorge School of Law, University of the Pacific
to be conferred December 2001
B.A., Speech Communication, CSU Fresno, 1990

Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion

I. Executive Summary

Daily headlines paint a dismal picture of California's public schools. It is no secret that California ranks near the bottom of the national average in both reading and mathematics. While experts and interest groups debate over how to fix California's ailing public schools, this November, voters will decide whether Proposition 38 is the solution. Proposition 38 is a California state constitutional amendment proposing dramatic changes in K-12 funding. Proposition 38 would abolish statutory minimum funding guarantees and would provide $4,000 annual scholarships (vouchers) redeemable at private schools. While California has rejected previous voucher attempts, both at the ballot box and through the state legislature, several other states have tried or are currently operating voucher systems. Supporters of the measure argue that parents should have the "right and financial ability to remove their children from failing public schools." (School Vouchers. State-Funded Private and Religious Education. Public School Funding. California Official Voter Information Guide, at 36 [Nov. 2000] [hereinafter Guide].) They claim that public schools will continue to be "riddled with waste and abuse" unless this measure passes. (Id.) However, Proposition 38 opponents contend that the measure will destroy public education as we know it, "costing California taxpayers between $2 and $3 billion." (Id. at 37.) Proposition 38 raises both public policy and constitutional issues. Several provisions of the proposition lack clarity leaving one guessing as to how Proposition 38 will operate, and what it is trying to achieve. If successful, the measure will likely be challenged in the courts. The federal constitutional issues raised by the measure include the Establishment clause, which prohibits government establishment of religion, and the Equal Protection clause, which prohibits discriminatory state action. While a number of cases provide guidance as to certain aspects of these questions, none have addressed the voucher issue in particular. Before examining potential fiscal impacts or constitutional concerns, it is necessary to put this measure in its proper context. This paper reviews the existing law governing public and private education, prior attempts to alter access and funding mechanisms, proposed changes and drafting problems. It concludes with an overview of State and Federal Constitutional issues and public policy considerations.

II. The Law

A. Existing Law

1. Overview of California's Education System

California law governs education through both the California State Constitution and the California Education Code. State law mandates compulsory education for all children ages 6 to 18, but does not require public school attendance. (Cal. Educ. Code § 48200 [West 2000].) As far back as 1925, the Supreme Court of the United States recognized that a child is not a mere creature of the state. (Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).) The fundamental theory of liberty excludes any general power of the state to standardize its children by forcing them to accept public school instruction. (Id.) Thus, parents have several options including, sending their children to free public schools, paying tuition at private schools, or providing home schooling in accordance with state law.

In addition to guaranteed public school access and funding (discussed supra), the state maintains a comprehensive regulatory scheme covering virtually every aspect of public schools from facilities, teacher requirements and credentials, to health, safety and curriculum.

Private schools operate under laws and regulations that are generally less restrictive than those applied to public schools. (Guide, at 33.) While government oversight of private schools is minimal, the state does maintain limited control. Regulation of private schools is sought primarily for purposes of maintaining the general health and welfare of students, such as requiring full immunization, requiring background checks for private school teachers and ensuring adequate curriculum. (Cal. Health and Safety Code § 120335, Cal. Educ. Code §§ 44235, 51210, 51220.)

2. School funding

An examination of school funding provides greater insight into the distinctions between public and private education in California. Existing law establishes a minimum funding guarantee for public schools. (Guide at 33.) This mandatory, minimum funding guarantee, created by Proposition 98, was approved by voters in 1988. Proposition 98, requires the state legislature to appropriate a certain amount of money to the public school system. The formula for apportioning state funds to public schools is based on average daily attendance (ADA). The higher the daily attendance, the more money schools receive; alternatively, the lower the ADA, the lower the state funds. (Cal. Const. art. IX, § 6, see also Cal. Educ. Code §§ 41200, 41204, 44238 [West 2000].)

In contrast with public schools, private schools receive no state funds for daily operations. The State Constitution expressly prohibits public money from being used to support any sectarian school or any school not under the exclusive control of public school officers. (Cal. Const. art. XVI, § 8 [West 2000].) While private schools receive limited federal funds, the money is specifically earmarked for special education or remedial instruction. (20 U.S.C. § 6301, see also Individuals with Disabilities Education Act of 2000 (20 U.S.C. § 1400.) The State Constitution also prohibits state money from being used to benefit any corporation, association or other institution not under management and control of the State. (Cal. Const. art. XVI, § 3 [West 2000].)

Because of strict state prohibitions against channeling public school dollars into private institutions, the primary financing method for private schools is tuition, charitable donations and fundraising. (Interview with Robert Teegarden, California Catholic Conference, in Sacramento, Cal. [June 1, 2000].) Available 1993-94 figures indicate that the average private school tuition (across the nation) was $3116. (National Center for Education Statistics, 1999 Digest of Education Statistics 2000, at 1. In a sense, parents who choose to send their children to private schools finance both public and private educational systems.

3. Current Government Subsidies for Private Education - Cal Grant

While K-12 private education is financed primarily through tuition, charitable contributions and fundraising, current California law provides some public funding of private undergraduate institutions through the Cal Grant program.

Under this program, grants are awarded to undergraduate students to assist with tuition and fees. (Cal. Educ. Code §§ 69532, 69535 [West 2000].) In administering the program, state law draws no distinction between religious and non-religious institutions and permits liberal use of Cal Grant awards. The availability of Cal Grants lends credibility to the notion that taxpayer financing for private (religious) education is permissible.

4. California's Historical Rejection of Vouchers

Notwithstanding government subsidy of private education through Cal Grants and federal funds, California has historically rejected private school vouchers. The first attempt to enact a voucher system failed in 1993 when voters soundly defeated Proposition 174, the Parental Choice In Education Amendment. Similar to this year's voucher initiative, Proposition 174 would have given parents vouchers redeemable at private schools, regardless of religious affiliation. (The Parental Choice in Education Amendment. California Official Voter Information Guide, [Nov. 1993].)

Several legislative proposals have also attempted to establish private school vouchers. Between 1993 and 2000, at least six bills containing some form of private vouchers failed to pass. (AB 2918 [Andal, 1994]; AB 3180 [Pringle, 1996]; AB 814 [Baldwin, 1997]; SB 882 [Haynes, 1999]; ABX 124 [Baldwin, 1999] and ACA 20 [Baldwin, 2000].) The most recent effort, ACA 20, would have amended sections of the state constitution prohibiting public funding of private schools, effectively permitting taxpayer financing of private schools. (ACA 20, 1999-2000 Leg. Sess.[Cal.].)

5. Vouchers on the National Landscape

California is not the first state to flirt with vouchers. Several states are considering and using a variety of education reform proposals including, publicly funded vouchers, privately funded vouchers, charter schools, magnet schools and tax credits.

As of 1999, two cities (Milwaukee, Wisconsin and Cleveland, Ohio) and one state (Florida) have implemented publicly funded private school voucher programs. In 1998, the Milwaukee plan was held constitutional by the Wisconsin Supreme Court; the United States Supreme Court refused to hear the case on appeal. On the other hand, both the Cleveland and Florida programs have been enjoined from further operation by trial courts after finding Establishment Clause violations. The injunctions have been stayed pending appeal. (Simmons-Harris v. Goff, 86 Ohio St.3d 1, [1999], Holmes v. Bush, 2000 WL 526364 [Fla. Cir. Ct.] [2000].)

B. Changes Proposed by Proposition 38

Proposition 38 proposes to amend Article IX of the state constitution, which relates to public school funding and other related matters. The measure amends the constitution by inserting language to create publicly financed vouchers redeemable at private schools. The initiative also contains a phase-in procedure, stricter voting requirements when passing laws affecting private schools, and criteria a private school must satisfy in order to become a voucher redeeming school.

1. Scholarships - Private School Vouchers

Proposition 38 requires the state to offer annual "scholarships" to every school-age child. (Guide, at 71.) The amount of the scholarship is the greater of:

$4,000, or

one half of the national average per pupil spending in public schools, or

one half of the state per pupil spending in public schools (Guide, at 71.)

Currently, both the state and national per pupil spending averages are a little less than $8,000. (Guide, at 33.) As a result, the scholarship level will initially be set at $4,000, but in the future will rise above $4,000. (Id.)

Scholarship checks will be made out in the parent's name and sent directly to the voucher redeeming private school of the parent's choice. (Guide, at 71-72.) The measure requires that the funds be used to cover the costs of tuition and other educational fees. If the tuition and fees are less than the amount of the voucher, the state will hold the excess amount in a trust account until the child reaches the age of 21, to be used in the future at any other voucher redeeming school, including undergraduate institutions. (Guide, at 71.)

2. Phase-In Period

If Proposition 38 passes, the measure initially restricts voucher eligibility, providing a 4-year phase-in period. (Guide, at 71.) During the 2001-2002 school year, the program allows all students currently enrolled in public schools or entering Kindergarten to use the voucher in its first year of existence and phases-in eligibility for private school students thereafter. (Id.) During the 2002-2003 school year, students in grades K - 2, who were previously enrolled in private schools, will become eligible for vouchers. (Id.) By the 2004-2005 school year, all students in grades K - 12, who were previously enrolled in private schools, will be eligible for the vouchers. (Id.)

3. Requirements of Voucher Redeeming Schools and Regulatory restrictions

There are four criteria a school must satisfy to become eligible as a voucher redeeming school; schools must:

agree not to discriminate on the basis of race, ethnicity, color, or national origin, or advocate unlawful behavior of any kind;

not deliberately furnish false or misleading information;

not employ individuals with felonious backgrounds;

be properly accredited. (Guide, at 72.)

In addition to the four criteria identified, if the school satisfies the legal requirements as applied to private schools on January 1, 1999, the school may file a certificate with the state to become a voucher redeeming school. (Guide, at 72.) However, the measure fails to specify any legal requirements and does not provide a cross-reference to existing law. Voucher redeeming schools must provide annual reports to maintain their certification and administer nationally normed reference tests taken by pupils enrolled in public schools. (Guide, at 72.)

Proposition 38 expressly provides that gender based classrooms and schools are eligible to participate in the program.

Proposition 38 restricts additional government oversight of private schools by requiring a 3/4 vote by the state legislature to enact any new laws affecting private schools, and a 2/3 vote for new local ordinances. (Guide, at 72.) Any new regulation must be essential in assuring the "health, safety or education" of pupils, and any land use regulation must further a "compelling interest." (Guide, at 73.) When promulgating new regulations, state agencies must balance the government's need with serving the public's interest. (Cal. Gov. Code §§ 11340.1, 11346.2, 11346.3, 11345.5 [West 2000].)

4. Alternative Minimum Funding Level - Replaces Proposition 98 Guarantee

Proposition 38 claims to raise K - 12 public school funding to the national average. The measure provides an alternative funding level for public schools, based on the national average for per pupil spending in public education. However, the alternative funding level is merely permissive. Proposition 38 simply provides that the legislature may use the national funding level method, instead of the current method under Proposition 98. (Guide, at 71.) Notably, once state public school funding exceeds the national average, this alternative minimum funding level would permanently replace the Proposition 98 guarantee. (Guide, at 71.) In other words, if California spends $9,000 per pupil, and the national average is $8,500, the new funding model would forever replace the Proposition 98 mechanism.

5. Limited Severability Clause - Applies Only to the Application of the Law

Proposition 38 contains a limited severability clause. It provides that if a court determines vouchers cannot be redeemed at any particular class of schools (for example, religious schools), vouchers can be redeemed at other classes of schools. (Guide, at 73.)

III. Drafting Issues

Lack of clarity and specificity make it difficult to ascertain the drafter's intent in certain provisions of Proposition 38. Potential problems could arise if Proposition 38 sees litigation. While the provisions of Proposition 38 are not necessarily vague, problems with judicial interpretation of the law are more likely to arise from the measure's failure to provide substance in certain areas.

The initiative does not provide clear guidelines as to what enrollment figures are required in order for a private school to receive public funds. In theory, a small "school" with just a handful of students could redeem vouchers if they meet all the other eligibility criteria. Does this interpretation mean that a private school, with an enrollment of five students, is eligible to become a publicly funded voucher school?

Ambiguity problems also arise in the title of the ballot measure. The title of the measure assigned by the Attorney-General states: "School Vouchers. State Funded Private and Religious Education. Public School Funding. Initiative Constitutional Amendment". It is unclear why the Attorney General's title contains the reference to "religious education" when the term is not used in the measure and voucher-redeeming schools may or may not be religiously affiliated.

However, due to the Attorney General's authority and obligation to title initiative measures, if challenged, the ballot title will likely withstand judicial scrutiny. A title need only express the purpose of the measure and give a true and impartial statement of its purpose. (Cal. Elec. Code §§ 9051, 9052 [West 2000].) The title need not contain a catalogue or index of measure's provisions and "if reasonable minds may differ as to the sufficiency of the title, the title should be held sufficient." (Lungren v. Superior Court 48 Cal. App. 4th 439 [1996].) Thus, under Lungren, unless the measure's proponents have a compelling argument that the title does not accurately describe some interpretation of the purpose of the measure, the title will stand.

In addition, Proposition 38 contains an unusual severability clause that only pertains to the application of the voucher provision, rather than containing the more common severability language that permits the remainder of a statute to stand even when a portion of its language is severed by the courts. (Guide, at 73.) For example, if the courts determine that vouchers may not be used at religious schools, the entire voucher program is not invalidated by the court's decision; instead, vouchers can still be redeemed at non-religious schools.

However, a severability clause is not conclusive. (Walnut Creek Manor v. Fair Employment and Housing Commission, 814 P. 2d 704, 717 [1991].) The final determination depends on whether the remainder is complete in itself and would have been adopted had the partial invalidation of the statute been foreseen. (Id.) In this case, it is still possible for vouchers to be redeemed at one class of schools, even if other classes of schools are not permitted to accept them. Therefore, application of the voucher provision is complete in itself. Consequently, it is likely that the measure will stand even if the courts invalidate the application of the voucher provision to particular classes of schools.

Last, the proposition does not specifically prohibit a private school from rejecting applicants on the basis of their physical disabilities. (Guide, at 33.) However, it appears that religious schools are exempt from existing laws prohibiting discrimination on the basis of disability.

The initiative requires voucher-redeeming schools to satisfy the legal requirements that applied to private schools on January 1, 1999. (Guide, at 72.) One of those requirements, the federal Americans with Disabilities Act (ADA), prohibits discrimination by private schools on the basis of disability. (42 U.S.C.A. §§ 12181(7)(J), 12182.[West 2000].) A private school operated by a religious organization is exempt from ADA requirements. (42 U.S.C.A. §12187 [West 2000].) The federal Rehabilitation Act of 1973 also prohibits private schools receiving federal funds from discriminating against "otherwise qualified" individuals with disabilities. (29 U.S.C.A. §794(a) [West 2000].) Consequently, federal legal requirements applicable on January 1, 1999 required non-religious private schools not to discriminate in their admissions on the basis of disability.

Another pertinent legal requirement is found in the California Education Code, which prohibits discrimination by public and private schools on various bases including mental or physical disability, "in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid." (Cal. Educ. Code § 220 [West 2000].) This prohibition does not apply to an educational institution controlled by a religious organization if application would be inconsistent with its beliefs. (Cal. Educ. Code § 220.5 [West 2000].) The voucher disbursement checks will be payable to the parents, will be sent from the state Controller directly to the voucher-redeeming school, and will be endorsed by the parent. (Guide, at 72.) Therefore, a voucher-redeeming school would become an "educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid" under California law. (Cal. Educ. Code § 220 [West 2000].) A non-religious private school that discriminates in its selection procedures on the basis of disability would not satisfy the requisite legal requirements.

It is unlikely, therefore, that the state Superintendent of Public Instruction would certify as a voucher-redeeming school a private school that engages in discrimination on the basis of disability that is unlawful under state or federal law; however, religious schools are exempt from these laws.

IV. Constitutional Issues

The initiative raises both State and Federal Constitutional issues. While the State Constitution expressly forbids public money flowing into private schools, Proposition 38 effectively amends this prohibition, thus permitting public monies to flow into private schools. Thus under the state constitution, the only significant questions are whether Proposition 38 violates the single subject rule and whether the measure allows discrimination under the law.

A. State Constitution

1. Single Subject rule

Proposition 38 deals primarily with the creation of school vouchers. It also, however, addresses the subject of a national average funding guarantee and restricts regulation of private schools. Under the California Constitution, an initiative may not address more than one subject area. (Cal. Const. art. II, §§8(d), 12.)

Over the years, the California State Supreme Court has upheld a variety of initiative measures in the face of a single-subject challenge because the initiative process enjoys an important and favored status in the California constitutional scheme. The single-subject requirement is not interpreted in an unduly narrow or restrictive fashion thereby precluding the use of the initiative process to accomplish comprehensive, broad- based reform in particular areas of public concern. (Cal. Const. art. II, §§8(d), 12.) The governing decisions establish that "[a]n initiative measure does not violate the single-subject requirement if all of its parts are 'reasonably germane' to each other," and to the general purpose or object of the initiative." (Legislature v. Eu, 54 Cal.3d 492, 512[1991].) Interpreting this standard, the court held that it is enough that the various provisions are reasonably related to a common theme or purpose. (Senate v. Jones 21 Cal.4th 1142, 1158 [1999].)

Applying these rules to Proposition 38, it could be argued that the national average funding guarantee and creation of vouchers contained within the voucher initiative are subjects that fall within the broader issue of education funding. On the other hand, a case could also be made that the initiative extensively covers three issues: public school funding, private school funding and regulation of private schools. To the extent a court finds regulation of private schools and school funding not reasonably related, this measure could be invalidated as a violation of the single-subject rule. Most likely, however, Proposition 38 does not violate the single-subject rule.

2. Discrimination

Both the California Constitution and the Education Code prohibit discrimination on the basis of sex, ethnic group identification, race, national origin or religion in the operation of public education. (Cal. Educ. Code § 220, Cal. Const. art. 1, § 31(a) [West 2000].) The Education Code specifies that the prohibition does not apply to educational institutions controlled by religious organizations, but the Constitution, which supersedes statutory law, is silent on this point. (Cal. Educ. Code § 220.5 [West 2000].)

Currently, voucher-redeeming schools are free to conduct their admissions in any manner not prohibited by law. The question, therefore, becomes whether private schools may use selective admission criterion favoring certain students if they (directly or indirectly) receive funds from the state. This question has been answered under the Equal Protection clause of the United States Constitution and is discussed in the next section.

B. Federal Constitution

There are two fundamental questions regarding Proposition 38. The first question is whether the measure violates the Establishment clause of the United States Constitution. The second, whether it violates the Equal Protection clause.

1. Establishment Clause - Separation Between Church and State

The First Amendment of the U.S. Constitution prohibits Congress from making any laws respecting the establishment of religion. (U.S. Const. amend. I.) The U.S. Supreme Court has yet to hear a case specifically addressing the constitutionality of school vouchers. However, the court has decided numerous cases involving the Establishment clause. The reason the Establishment clause may pose a problem under Proposition 38 is because of the redemption of vouchers by religious schools. Since the Establishment clause requires separation between church and state, taxpayer funding of religious schools is seen as government promotion of religion.

In order to decide whether government is advancing a religion, the court has articulated a three-part test under which statutes and regulations respecting religion are measured. To be valid, the offending statute or regulation must satisfy all three parts of the Lemon test:

 

  • the state law or regulation must reflect a clearly secular purpose;
  • it does not primarily advance nor inhibit religion;
  • it avoids excessive government entanglement with religion. (Lemon v. Kurtzman 403 U.S. 602, 612-613 [1971].)

In Agostini v. Felton, the United States Supreme Court modified the three-part Lemon test. (Agostini v. Felton, 521 U.S. 203 [1997].) It set out three criteria for determining a statute's effect. Government aid advances religion if it:

 

(1) results in governmental indoctrination;

(2) defines its recipients by reference to religion;

(3) creates an excessive entanglement. (Id. at 233-234)

Whether government aid to religious schools results in religious indoctrination depends on whether any indoctrination that occurs could reasonably be attributed to governmental action. (Id. at 226)

In distinguishing between indoctrination attributable to the State from indoctrination that is not, the Court has consistently turned to the neutrality principle, upholding aid that is offered to a broad range of groups or persons without regard to their religion. As a way of assuring neutrality, the Court has repeatedly considered whether any governmental aid to a religious institution results from the genuinely independent and private choices of individual parents. (Id.)

Agostini's second primary criterion, whether an aid program defines its recipients by reference to religion, is closely related to the first. (Id. at 206.) It looks to the same facts as the neutrality inquiry, but uses those facts to answer a different question, whether the criteria for allocating the aid creates financial incentive to undertake religious indoctrination. (Id. at 231.) Such an incentive is not present where the aid is allocated on the basis of neutral, secular criteria that neither favors nor disfavors religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. (Id.) Recently, the Agostini examination was wholly adopted and further refined by the Court in Mitchell v. Helms. (Mitchell v. Helms, WL 2000 WL 826256 [2000].)

Proposition 38's primary purpose is to ensure an educated citizenry, and as such, constitutes a secular legislative purpose. Vouchers do not primarily advance or inhibit religion if they are used in pursuit of educational goals and not religious indoctrination. Any indoctrination that occurs is attributable to the state only if the state is involved in deciding which children are eligible to receive vouchers or whether they are neutrally available. Under Proposition 38, vouchers are neutrally available to all children enrolled in public (and private) schools after the phase-in is complete and the state plays no part in deciding which child shall attend particular

private schools. Whether the voucher program defines its recipients by reference to religion might also be answered in the negative using the Agostini factors, since as discussed, vouchers are neutrally available.

As to whether Proposition 38 creates excessive government entanglement, the State Controller must make quarterly disbursements in the form of a check to the address of the voucher redeeming school, as recorded by the County Office of Education. The County Office of Education is required to compile information provided by parents about each child and must transmit a statement of enrollment, tuition and fees, and addresses of the schools to the State Controller within 30 days of proof of enrollment. In assessing whether these responsibilities create excessive entanglement, the court will consider how onerous the requirements are on the State Controller and County Offices of Education.

Should the court find that the State Controller and/or County Office of Education play too great a role in the transference, monitoring of funds and administration of vouchers, the measure could be invalidated as it excessively entangles the government with private (religious) schools.

A recent case concerning the constitutionality of vouchers comes out of Ohio. (Simmons-Harris v. Zelman, 72 F. Supp. 2d 834 [1999].) There, an action was brought challenging the voucher portion of the Ohio Pilot Scholarship Program as a violation of the Establishment clause. (Id. at 835-36.) The plaintiffs sought an injunction from the court prohibiting the continuation of a voucher program. (Id.) The court issued an order enjoining the program from continuing, but also granted a limited stay of its order enjoining the injunction. (Id. at 865.)

The Ohio trial court struck down the program because it found that the vast majority of schools participating in the Voucher Program were sectarian in nature. (Id. at 847.) According to the Court, by the very nature of the program, parents did not have a genuine choice between sending their children to sectarian or nonsectarian schools because sectarian schools overwhelmingly predominate. (Id. at 853-4.) Thus, the program had the effect (effects test) of advancing religion through government-supported religious indoctrination. (Id. at 864-5.) The Sixth Circuit Court of Appeal heard oral arguments in Simmons on June 20, 2000.

If the Ohio Court's decision is upheld on appeal and a similar challenge brought against Proposition 38, the outcome under Simmons rests on what types of schools accept vouchers. If voucher-redeeming schools are disproportionately religious institutions, that may be problematic.

2. Equal Protection Under the Law

Another constitutional inquiry concerns whether private schools may use selective admission criteria. The Equal Protection clause of the 14th amendment provides that "No state shall make or enforce any law, nor deny to any person within its jurisdiction the equal protection of the laws." (U.S. Const. amend. XIIII.)

Proposition 38 specifically allows same-gender schools, or schools that offer same-gender classes, to become voucher redeeming schools. (Guide, at 72.) The U.S. Supreme Court analyzes gender discrimination by the government under the Equal Protection clause of the Constitution. (U.S. Const. Amend XIV, §1.) In 1996, the Court found that exclusion of women from Virginia Military Institute (VMI), a state college, violated the Equal Protection clause because Virginia did not establish an exceedingly persuasive justification for its gender-based admission policy. (United States v. Virginia, 116 S. Ct. 2264, 2282 [1996].) The Court also found an equal protection violation in a remedy offered by Virginia to create a separate program for women at another college, because the new program would not result in substantially comparable benefits for both genders. (Id. at 2286.) If the ability to redeem state-funded vouchers at single-gender schools were challenged under the Equal Protection clause, the state would have to show that the gender classification was substantially related to important governmental objectives. (Id. at 2275.) The question under VMI likely would be whether the same benefits were available to both genders from voucher redeeming schools or whether there was an exceedingly persuasive justification for the state to provide vouchers for benefits to only one gender.

It is difficult to ascertain where the courts will come down on this issue, but one thing is clear: as more states begin flirting with the notion of implementing state-sponsored educational vouchers, there is a greater likelihood a case such as Simmons, discussed above, will make its way to the U.S. Supreme Court for a final determination on the constitutionality of vouchers.

V. Public Policy Considerations

A. Proponents

Voucher proponents contend that the public school system is hopelessly beyond repair and that greater financing of this system will not fix the problem. Supporters of Proposition 38 argue that the best way to fix the ailing public school system is to empower parents to choose the school that best serves their child's needs. Proponents argue "Vouchers 2000" promises new opportunities, where results will be rewarded and children's interests will be prioritized over bureaucratic dictates. (School Vouchers 2000.)

Supporters also assert that their initiative prohibits California's per pupil funding from dropping below the national average, but the language of the measure does not mandate this guarantee. The measure merely permits the state to fund public schools at the national average. (Id.)

They also argue that the measure will not require a tax increase and will save money over time as evidenced by the findings of the Legislative Analyst's Office (LAO), the chief investigative arm reviewing cost implications of legislation and initiatives. The LAO has determined this initiative will result in short-term state costs averaging between zero and $1.1 billion annually. Over the long term, the annual impact is likely to range from costs of about $2 billion to savings of over $3 billion. (Guide, at 33.)

Proposition 38 supporters include: Carmela Garnica, Teacher; Tim Draper, Parent; John McCain, U.S. Senator; John O. Norquist, Mayor City of Milwaukee, Wisconsin; Dr. Alexandria Coronado, Member Anaheim School Board and Virginia Hall, Retired Public School Teacher. (Guide, at 36-37.)

B. Opponents

Opponents say abandoning public schools is not the solution. From the National Education Association, to the California Teacher's Association, the educational establishment is firmly opposed to vouchers of any kind, including: the California Teacher's Association, California Parent-Teacher's Association, Delaine Eastin, California Superintendent of Public Instruction, Joseph J. Bartosch, Headmaster Sacramento Preparatory Academy; Craig Garbe, Headmaster

Cornerstone Christian Schools; Alan J. Reinach, Esq., Director of Public Affairs and Religious Liberty for the 15,000-student California Seventh-Day Adventist Schools. Opponents are careful to point out that opposition from the measure is not limited to the education establishment. Members of the "No" coalition include the Congress of California Seniors, Howard Jarvis Taxpayers Association and the California Business Roundtable.

Opponents argue that Proposition 38 will have a devastating impact on the state budget, as vouchers will cost almost $3 billion. (No Vouchers 2000.)

Spending this additional $3 billion on students currently enrolled in private schools, according to opponents, will mean either a tax increase or cuts to services like police, fire, prisons, health care and transportation. (Id.)

Opponents next contend that Proposition 38 lacks accountability, that anyone can start a private school and qualify for publicly funded vouchers. (Id.) As evidence of this assertion, opponents point out that private schools are exempt from the state's new curriculum and performance standards, financial records are not available for public inspection, and they are not accountable for scholastic results. (Id.)

Opponents also argue that Proposition 38 allows for discrimination because private schools may act arbitrarily in either accepting or denying a child's application. (Id.) Private schools, opponents assert, are allowed to discriminate against students and are not required to explain the rationale behind the rejection of an application. (Id.)

Finally, opponents argue Proposition 38 is a deceptive "bait and switch" tactic claiming to raise per pupil funding to the national average, but not requiring the legislature or providing the money to do so. (Id.)

Public awareness about vouchers has grown and is a popular issue currently being addressed by the presidential candidates of both major parties. Republican presidential candidate George W. Bush supports some form of vouchers and advocates the use of federal funds for public and private school choice. (George Bush for President, [available at http://www.georgewbush.com/] [visited July 10, 2000].) Democratic presidential candidate Al Gore on the other hand opposes vouchers, saying they drain precious resources from public schools. (Al Gore for President, [visited July 10, 2000].) Neither candidate has specifically endorsed or opposed Proposition 38, but the fact that vouchers are being addressed on such a level evidences its importance.

Proposition 38 would result in landmark law, since no other similar effort in California has been successful. However, the measure faces a tough fight and must withstand rigorous scrutiny by the public, the media, the courts and opponents. As proposed, the measure would create state-funded vouchers to be used by students at the school of their parents' choice. There are questions about how the transfers of money would be accomplished, whether that transfer is consistent with both the state and federal Constitutions, and how much money would be needed to fund vouchers for those students already enrolled in private schools. The campaign promises to be an expensive and hard fought battle on both sides. The real challenge to voters will be to weed through the propaganda in order to understand the real issues, not just the political spins.