학교선택권의 실질적 보장을 위한 바우처 프로그램의 헌법적 한계 - 미국 각 州 헌법의 태도와 판례를 중심으로-

Abstract

The purpose of this writing is to explore constitutional provisions in the level of state regarding voucher programs which are publicly funded, to determine the constitutionality of them under the respective state constitutions, and to consider the implication of the voucher programs for us. School voucher programs are initiatives giving parents school choices for their children's education at government's expense for good educational performance. However, the issues relating to the merits of this programs remain controversial as proponents and opponents of school voucher make contradictory conclusions. In the legal aspects, voucher programs raise various potential issues in the both phases of federal and state constitution. For a long time, the legal circles mainly focused on whether voucher programs harmonized with the U.S. Constitution's Establishment Clause by subsidizing government money for schools which are religiously affiliated. The U.S. Supreme Court declared voucher programs of Cleveland City constitutional, resolving this issue in Zelman v. Simmons-Harris. The state constitutional provisions regarding voucher systems are very diverse and provide a number of challenges to legislative acts. Although in the legal arena challenges rooted on the religious provisions were initially anticipated, it has come out into the open by recent cases that challenges in the future would be on provisions irrelevant to religion. For now, the precedents on state constitutional challenges to voucher programs which are publicly funded are not affluent, but the growing tendency of legislative acts for voucher programs and the friendly trends of public opinion signal the increase of challenges in the future courts. And, it should be revealed through future challenges if school voucher programs which are funded publicly are allowed under the state constitution respectively. we shall need to consider why voucher programs are so controversial in terms of constitutionality. The reason why voucher initiatives, having no end to the controversy over the constitutionality, become more and more prevalent is because they aim to get a very high level of academic achievement. For us to maintain a competitive public education system in the knowledge-based Korean society, it needs to be recognised that parents' fundamental right to school choices is very core element in the fruitful educational system.