How could it be constitutional to use state tax dollars to send a child to a private religious school?

After all, the First Amendment to the U.S. Constitution prohibits the establishment of religion and enshrines the separation of church and state. States have their own constitutions, as well, with their own provisions on religious freedom.

But under certain circumstances, state funds can be given to parents who then are free to spend them at their private school of choice, including religious-affiliated schools.

The proposed Tennessee Education Savings Account bill is written in a neutral way to give parents vouchers that they can use at their school of choice.

So the ESA bill would likely meet legal requirements as written, although it might be challenged in the courts if a plaintiff thought it was applied in an illegal way.

The key U.S. Supreme Court case is Zelman v. Simmons-Harris, decided by a 5-4 majority in 2002, says Jenny Diamond Cheng, a lecturer at Vanderbilt University Law School. She teaches education law, including the law on school choice.

The five majority justices in Zelman v. Simmons-Harris found that a student voucher program in Cleveland, Ohio, didn’t violate the First Amendment’s Establishment Clause.

The program, designed to help students at low-performing public schools, provided vouchers to parents who could use them at any private school that accepted their children.

The parents – not the government – chose which school their child would attend with the voucher money.

The fact that the parents decided on the school operated as a “circuit breaker” between the government providing the money and where the money was actually used, Cheng says. Therefore, the government wasn’t establishing religion through the vouchers, since they could be used anywhere.

The Cleveland program was, therefore, ruled constitutional.

“This really opened the door for vouchers,” Cheng adds.

U.S. Department of Education statistics show that about two-thirds of the nation’s 30,000-plus private schools have a religious affiliation, with the largest number being Catholic, followed by nondenominational Christian schools.

State programs often base the amount of the voucher on what the state spends each year on a per-student basis on public K-12 education.

Under the Lee administration’s Educational Savings Account proposal, the average voucher in Tennessee would be about $7,300, the average per-student amount spent by the state. (Amounts for a particular school district or local education association may vary depending on the complex formula the state uses to determine per-student expenditures.)

Even though it’s likely, based on tuition charges, that much of the voucher money will be spent at religious-affiliated schools in Tennessee, vouchers that end up being used mostly at religious schools have passed constitutional muster in the U.S. Supreme Court if parents alone decide where the vouchers will be used.

There are also state constitutional provisions that prohibit use of public money for sectarian purposes and have been used to prohibit or invalidate school voucher programs, but Tennessee isn’t one of them, Cheng says.

A Tennessee attorney general’s opinion, issued in 2013 on the constitutionality of a previous voucher proposal, noted that Tennessee’s constitution didn’t “expressly [ban] the use or appropriation of any public money to support any religious instruction or establishment.”

These provisions, called Blaine Amendments, originated with former U.S. House Speaker and presidential candidate James Blaine, who in 1875 proposed such an amendment to the United States Constitution.

His amendment failed, but the idea still bears his name.

The attorney general’s opinion also mentioned in the Tennessee Constitution’s Establishment Clause, in Article I, Sec. 3, states in part that “no preference shall ever be given, by law, to any religious establishment or mode of worship.”

In a 1956 case, the Tennessee Supreme Court found that clause was “‘practically synonymous’ with the religion clause of the First Amendment.

The attorney general’s opinion indicated the state constitution’s religion clause couldn’t be used to reach a different result than the U.S. Supreme Court did in the Zelman case.