Legality of school vouchers in dispute

Two former officials have said they violate state constitution

Topeka ? Supporters of private school vouchers have extolled their virtues during a debate before the Kansas State Board of Education.

But legal opinions from two former Kansas attorneys general say vouchers for religious schools violate the state constitution, while Atty. Gen. Phill Kline says they may be used under certain circumstances.

Of four attorney general opinions dealing with vouchers, State Board of Education attorney Dan Biles says, “It’s more heavily weighted toward having found that this would not pass the religious test under the state constitution.”

Education Commissioner Bob Corkins, however, said his voucher proposal would pass constitutional muster. But Education Board Chairman Steve Abrams said he didn’t know.

“I haven’t studied it. We have not received a report. We are supposed to receive a report from the attorney (Biles) next month,” Abrams said.

Under the proposal before the board, state tax funds would go toward paying tuition for students to attend private schools, including religious schools. Students eligible for the program would include those who receive free or reduced lunches, or those who score below proficient on statewide tests.

The dispute is over whether sending public tax dollars to religious schools violates the U.S. Constitution’s prohibition of laws establishing a religion, and the state constitution, which bans control of public funds by religions.

Private school vouchers exist in a number of states and have been declared constitutional by the U.S. Supreme Court as long as they are not intended to advance or inhibit religion.

But former Atty. Gen. Carla Stovall wrote in a legal opinion from 2000 that the Kansas Constitution is more restrictive than the U.S. Constitution.

She noted that the Kansas Constitution says no religious sect “shall control any part of public education funds.”

Another section of the Kansas Constitution states that no person may be compelled to pay taxes “to secure or maintain a place where any form of religious worship shall be conducted.”

Stovall’s opinion was written in response to voucher legislation that was under consideration then, but it never passed.

Six years earlier, then-Atty. Gen. Bob Stephan said a voucher program before the Legislature violated the Kansas Constitution because it “conferred state funds upon a place where a form of religious worship is to be conducted.”

But in 2004, Kline issued an opinion that an Ohio voucher plan approved by the U.S. Supreme Court would be “worthy of consideration in crafting a Kansas school voucher program” because the Kansas Constitution’s religious liberty clause was similar to Ohio’s.