AGO 03-01.

• Case Date: February 07, 2003
• Court: Hawaii

Hawaii Attorney General Opinions 2003. AGO 03-01. Opinion No. 03-01February 7, 2003The Honorable Blake K. OshiroRepresentative, Thirty-Third District The Twenty-Second LegislatureState of Hawaii State Capitol #332Honolulu, Hawaii 96813 Dear Representative Oshiro:Re: The Constitutionality of School Vouchers in HawaiiThis is in response to your letter dated October 18, 2002, in which you requested legal advice regarding school vouchers. ISSUES RAISED 1. Is Zelman v. Simmons-Harris, -- U.S. --, 122 S.Ct. 2460 (2002), distinguishable in Hawaii? 2. Would a school voucher program violate the Hawaii State Constitution? BRIEF ANSWERS 1. Yes. In Zelman, the United States Supreme Court held that the Ohio school voucher program did not violate the Establishment Clause of the United States Constitution, which prevents a State from enacting laws that have the purpose or effect of advancing or inhibiting religion. Zelman is inapposite in Hawaii because a Hawaii school voucher program would be precluded under Article X, Section 1 of the Hawaii State Constitution and not the Establishment Clause of the United States Constitution. Significantly, the Establishment Clause was drafted to promote the separation of church and state and Article X, Section 1 of the Hawaii State Constitution was drafted for policy reasons that have nothing to do with religion. 2. Yes. Considering the Hawaii Supreme Court's previous interpretation of Article X, Section 1 in Spears v. Honda, 51 Haw. 1, 449 P.2d 130 (1968), a school voucher program would violate the Hawaii State Constitution. DISCUSSION At the outset, it is necessary to understand that our office analyzed the above-listed issues without detailed knowledge of a particular school voucher program that the legislature may be considering. Our analysis would likely be more focused and specific if we were examining the constitutionality of a particular school voucher proposal. Nevertheless, we believe the issues you raised are relevant and timely and warrant the issuance of a formal opinion regarding school voucher programs, in general. A. Zelman v. Simmons-Harris is Inapposite As noted above, Zelman v. Simmons-Harris, -- U.S. --, 122 S.Ct. 2460 (2002), is inapposite in Hawaii because it was based on federal Establishment Clause analysis. In Zelman, a group of Ohio taxpayers brought an action...