Commentary

A Practical Guide to Legislating ‘True Private Choice’

By Marie Gryphon
This article appeared in the School Reform News on April 1, 2003.

Although the Supreme Court’s June 2002 decision in Zelman v. Simmons-Harris, holding that school choice is constitutional, sparked strong interest in choice programs across the nation, it did not automatically provide additional educational options to families that might need them. Most importantly, the Court’s clarification of the five elements of “true private choice” establishes a set of rules for crafting school choice legislation, providing reformers with a practical guide to expanding educational freedom.

According to Institute for Justice attorney Clint Bolick, the Zelman decision opens the door for a revolutionary change in U.S. education.

“It now seems entirely permissible for the government to adopt a program in which all education funding is channeled through students—to public and private schools alike,” he said. “The decision could help usher in an era of child-centered public education reform … focusing less on where children are being educated and more on whether children are being educated.”

The Court’s five requirements for “true private choice” programs are relatively simple, and are designed to ensure choice is not being used by the government as a tool to promote religion to families or indoctrinate children.

Public Purpose. First, every school choice program must have a secular public purpose: Lawmakers must be acting to improve education, not to promote religion. To avoid any confusion on this point, lawmakers should clearly state their purpose in the enabling legislation that enacts a school choice plan.

Aid Directed to Parents. School choice programs must provide aid to parents—not directly to private schools—if lawmakers want courts to consider the program under their most generous standard.

Drafters may, however, include safeguards to ensure scholarship money is spent on tuition at an approved school. For example, the Ohio program makes checks payable to parents, but mails those checks directly to the alternative schools the parents choose. Parents must then endorse their checks over to the schools in the school offices.

Broad Class of Recipients. Third, school choice programs must be available to a broad class of students not defined on the basis of religion. For example, the Ohio school choice program is available to families on a lottery basis, with low-income families receiving priority. Other programs may be available to all school-age children within a particular jurisdiction.

Neutral Towards Religion. The fourth element of a “true private choice” program is that it be set up in a way that is neutral between religious and nonreligious options. The choices provided to families cannot be “rigged” in a way that favors a religious school. An obvious example of an impermissible program would be one that provided a larger voucher or more generous tax credit to church-affiliated schools than to secular schools.

But there are other ways states might run afoul of the neutrality requirement if lawmakers do not design their programs carefully. For example, it might be constitutionally suspect to model a school choice program on the existing schedule or bureaucratic process of a local parochial system, if the result was disproportionate participation by those schools in a choice program.

To avoid any danger of creating a non-neutral program, lawmakers should be careful to invite representatives from all alternative schools to attend all planning meetings, and create a program that is equally convenient for all.

Adequate Nonreligious Options. Finally, states adopting school choice programs must ensure families have adequate nonreligious educational options from which to choose. These nonreligious options need not be private schools. The Supreme Court considered magnet and charter schools operating in Cleveland as adequate nonreligious options when evaluating Ohio’s school choice law.

Free to Innovate

Lawmakers have responded quickly to the new certainty about the constitutional rules for school choice. Bills authorizing or expanding school choice programs have been introduced in Colorado, Florida, Maine, Texas, Utah, and elsewhere since the Supreme Court’s historic decision.

“The states have finally been freed to innovate,” the Cato Institute’s David Salisbury said. “That’s a good thing. States need to empower families with more options. The cloud of [federal] constitutional doubt has finally been lifted from these programs.”

Blaine Amendments

Some legal battles still remain for school choice advocates and opponents. Many state constitutions contain provisions that restrict school choice programs to a greater degree than does the U.S. Constitution.

The two most common types of state restrictions are “Blaine amendments” and “compelled support” provisions. While in a number of states these provisions have not been interpreted in a way that restricts school choice, in other states choice programs have been struck down under state constitutions because of these provisions.

State Blaine amendments directly target any public funding of religiously affiliated educational alternatives. They are named after Maine Representative James Blaine, who led a failed effort in the late 19th century to amend the U.S. Constitution to prohibit school choice that included religious schools. Although his federal effort failed, it inspired many states to amend their own constitutions. Blaine amendments are largely the product of a political backlash during that period against Roman Catholic immigrants.

Compelled Support

Compelled support provisions are more prevalent among older states on the eastern seaboard. They do not directly address education, but generally prohibit laws that would compel state residents to support any church. Direct tax support for religion was common in England and in early America, so these provisions were originally intended to prohibit laws requiring payment of tithes. Opponents of school choice have suggested that programs including religious schools would violate these provisions as well.

At least three court cases—pending in Florida, Maine, and Washington—could resolve these lingering issues once and for all. The Institute for Justice, a public interest law firm specializing in school choice issues, is involved in all three matters. The Washington case challenges that state’s Blaine amendment on federal Constitutional grounds, and the Maine case challenges that state’s compelled support provision. In Florida, parents and state authorities are appealing a state court’s decision that the state’s Opportunity Scholarship program violates its Blaine amendment.

The Institute for Justice has vowed to fight state constitutional provisions wherever they are used to restrict educational options.

“If you’ve got a school choice program, you’ve got a lawyer,” Bolick proclaims.

Marie E. Gryphon, an attorney, is an education policy analyst with the Cato Institute in Washington, DC.