Kansas Attorney General Opinion 1992-055

ROBERT T. STEPHAN
ATTORNEY GENERAL
April 20, 1992
ATTORNEY GENERAL OPINION NO. 92- 55
The Honorable Rick Bowden
State Representative, Ninety-Third District
State Capitol, Room 281-W
Topeka, Kansas 66612
The Honorable Richard Rock
State Senator, Thirty-Second District
State Capitol, Room 401-S
Topeka, Kansas 66612
Re: Constitution of the State of Kansas--Bill of
Rights--Religious Liberty; Voucher System Program;
Sectarian Schools; Constitutionality
Constitution of the State of Kansas--
Education - -Finance; Voucher System Program;
Sectarian Schools; Constitutionality
Synopsis: The three versions of the voucher system program
proposed by the legislature permit sectarian
schools to obtain reimbursement of the vouchers by
the state board of education, thereby resulting in
a violation of section 7 of the bill of rights of
the Kansas constitution and section 6 of article 6
of the Kansas constitution. The voucher system
program as proposed is unconstitutional. Cited
herein: Kan. Const., Bill of Rights, § 7; Kan.
Const., art. 6, § 6; U.S. Const., Amend I.

Dear Representative Bowden and Senator Rock:
As legislators for your respective districts, you request our
opinion regarding the constitutionality of legislation which
establishes a voucher system program for purposes of acquiring
educational services. Varying versions of the program have
been proposed in 1992 House Bill No. 2853, 1992 Senate Bill
No. 633, and 1992 Senate Substitute for House Bill No. 2892.
Under all three versions of the voucher system program the
parents of a program eligible child may receive upon request a
voucher from the state board of education. The voucher may be
exchanged for the provision of educational services at a
participating school selected by the child's parents. Any
school that enters into the appropriate agreement with the
state board of education is a participating school. All
public schools except those excluded by the state board of
education are required to become participating schools. Any
nonpublic school which is accredited by the state board of
education and which maintains an open enrollment policy may
become a participating school. The parents of the program
eligible child are required to present the voucher to the
participating school attended by the child. The participating
school, in turn, presents the voucher to the state board of
education for its redemption, and credits the account of the
child for an amount equal to the value of the voucher. The
only participating school precluded from receiving a voucher
is the public school which the child is entitled to attend
under any other provision of law. None of the versions of the
voucher system program prohibit sectarian schools from
participating in the program and submitting vouchers for
redemption to the state board of education.
The establishment clause of the constitution of the United
States, made applicable to the states through the fourteenth
amendment, provides in part that "Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof." The first amendment's guarantee is
more than a pledge that no single religion will be designated
as a state religion. School District of City of Grand Rapids
v. Ball, 473 U.S. 373, 381, 105 S.Ct. 3216, 3221, 87 L.Ed.2d
267 (1985). It is also more than a mere injunction that
governmental programs discriminating among religions are
unconstitutional. Id. The establishment clause instead
primarily proscribes sponsorship, financial support, and
active involvement of the sovereign in religious activity.
Id. The United States Supreme Court implemented in Lemon

v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745
(1971) a three-pronged test to be applied in determining
whether legislation comports with the establishment clause.
Under the Lemon test: (1) the legislature must have adopted
the law with a secular purpose; (2) the statute's principal or
primary effect must be one that neither advances or inhibits
religion; and (3) the statute must not result in an excessive
entanglement of government with religion. Edwards v.
Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96
L.Ed.2d 510 (1987).
As noted by the United States Supreme Court in Mueller v.
Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983):
"[T]he Establishment Clause presents
especially difficult questions of
interpretation and application. It is
easy enough to quote the few words
constituting that Clause. . . . It is not
at all easy, however, to apply this
Court's various decisions construing the
Clause to governmental programs of
financial assistance to sectarian schools
and the parents of children attending
those schools. Indeed, in many of these
decisions we have expressly or implicitly
acknowledged that 'we can only dimly
perceive the lines of demarcation in this
extraordinarily sensitive area of
constitutional law.' [Citations
omitted.]" Mueller, 463 U.S. at
392-93, 103 S.Ct. at 3065-66.
It certainly appears at first glance that the versions of the
voucher system program proposed by the Kansas legislature have
been drafted to conform with the legislation upheld in
Mueller, supra, and Witters v. Washington Department
of Services for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88
L.Ed.2d 846 (1986). However, many state constitutions prove
to be far more restrictive than the establishment clause
regarding public support of sectarian institutions. 16A
Am.Jur.2d Constitutional Law, § 477 (1979); see
Witters, 474 U.S. at 491, 106 S.Ct. at 754. Therefore,
our initial consideration will be a review of section 7 of the
bill of rights of the Kansas constitution and section 6 of
article 6 of the Kansas constitution.
The Kansas constitution provides:

"The right to worship God according to the
dictates of conscience shall never be
infringed; nor shall any person be
compelled to attend or support any form of
worship; nor shall any control of or
interference with the rights of conscience
be permitted, nor any preference be given
by law to any religious establishment or
mode of worship. . . ." Kan. Const.,
Bill of Rights, § 7.
"(c) No religious sect or sects shall
control any part of the public educational
funds." Kan. Const., art. 6, § 6.
It is clear that no religious sect can lawfully control our
school funds, nor can sectarian doctrines be taught lawfully
in our public schools. Wright v. School District, 151 Kan.
485, 486 (1940). Also, "no person shall be compelled to pay
tithes or taxes to secure or maintain a place where any form
of religious worship shall be conducted, or where any
sectarian or religious doctrine is taught; nor shall any form
of religious worship be conducted, or any sectarian or
religious doctrine be taught, in any place supported by the
imposition of taxes." Billard v. Board of Education, 69
Kan. 53, 56 (1904).
The courts have long recognized that sectarian schools pursue
two goals, religious instruction and secular education. Meek
v. Pittenger, 421 U.S. 349, 366, 95 S.Ct. 1753, 1763, 44
L.Ed.2d 217 (1975); Board of Education v. Allen, 392 U.S.
236, 245, 88 S.Ct. 1923, 1927, 20 L.Ed.2d 1060 (1968).
"Substantial aid to the educational function of such schools,
accordingly, necessarily results in aid to the sectarian
school enterprise as a whole. '[T]he secular education those
schools provide goes hand in hand with the religious mission
that is the only reason for the schools' existence. Within
the institution, the two are inextricably intertwined.'
[Lemon, 403 U.S.] at 657, 91 S.Ct. at 2133 (opinion of
Brennan, J.)." Meek, 421 U.S. at 366, 95 S.Ct. at
1763-64. Therefore, if the state confers money upon a
sectarian school, the result is, unavoidably, state support of
a form of worship. The state has no power to impose a tax on
the citizens of Kansas to aid sectarian schools. See A.T.
& S.F. Railroad Co. v. City of Atchison, 47 Kan. 712, 714
(1892). Because the three versions of the voucher system

program proposed by the legislature permit sectarian schools
to obtain reimbursement of the vouchers by the state board of
education, the voucher system program results in a violation
of section 7 of the bill of rights of the Kansas constitution
and section 6 of article 6 of the Kansas constitution. The
voucher system program as proposed is unconstitutional.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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