School Choice Lawsuit Roundup

School choice advocates have been winning in the halls of state legislatures and in the court of public opinion, so opponents have taken to the courts of law. Since the U.S. Supreme Court ruled in Zelman v. Simmons-Harris (2002) that school vouchers are consistent with the First Amendment's Establishment Clause, opponents of choice have been scrambling to find novel reasons to challenge school choice programs. Here's a brief summary of school choice lawsuits around the nation:

1) In Louisiana, the U.S. Department of Justice has sued to halt the state's school voucher program, arguing that it hurts the desegregation effort. The DOJ's already weak case was further undermined by a new study released today showing that school choice actually improves integration. Since 90 percent of the voucher recipients are black, the DOJ's lawsuit would have the effect of keeping low-income blacks from attending the schools of their choice.

Earlier this year, Louisiana's state supreme court ruled that the voucher program was unconstitutionally funded, but otherwise left the program intact. The governor and state legislators adjusted the funding mechanism in response.

2) Two days ago, a group of activists in Oklahoma sued the state over its special needs voucher program, arguing that it violates the state constitution's ban on using public funds at religious schools. Last year, the state supreme court tossed out a challenge to the program by public school districts, ruling that they did not have standing since they are not taxpayers.

3) On the same day, the Arizona Court of Appeals ruled unanimously that the state's education savings account program, the first in the nation, is constitutional. Anti-school choice activists had argued that it violates the state constitution's ban on publicly funding religious schools. The court held that students are the primary beneficiaries and that any "aid to religious schools would be a result of the genuine and independent private choices of the parents." The decision will likely be appealed to the state supreme court.

4) In Alabama, the Southern Poverty Law Center is challenging the state's school choice tax credit program, absurdly arguing that if the program can't help every child, it shouldn't be allowed to help any child. The state supreme court recently dismissed a second lawsuit by the Alabama Education Association, though the teachers union has filed an additional suit on Blaine amendment grounds.

5) In New Hampshire, the ACLU and Americans United for Separation of Church and State are challenging the state's scholarship tax credit program, arguing that it violates the state constitution's ban on using public money at religious schools. Their case is weak because the U.S. Supreme Court ruled that tax credits are not "public money." A citizen's money only becomes the government's once it has reached the tax collector's hands. Nevertheless, in a flawed and unprecedented decision, the lower court ruled that the program could not include scholarships to students attending religious schools. The Institute for Justice, which is representing a scholarship organization and several scholarship recipients, has appealed the decision to the state supreme court.

6) The Colorado Court of Appeals ruled 2-1 that the Douglas County School District's school voucher program is constitutional earlier this year. Opponents argued that it violated the state constitution's prohibition against using public money at religious schools. The case is being appealed to the state supreme court.

In addition, the Indiana Supreme Court ruled that the state's voucher program is constitutional earlier this year. For more information on some of the cases above, as well as numerous prior school choice lawsuits, see the Institute for Justice's School Choice page.