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SCHOOL CHOICE: Answers to Frequently Asked Legal Questions

(5th Edition—Revised January 2004)

by Clint Bolick and Richard D. Komer

1. Are school choice programs that include religious schools permissible under the First Amendment?

Yes. In the U.S. Supreme Court’s landmark 2002 decision upholding Cleveland’s school choice program, Zelman v. Simmons-Harris,1 the Court makes it clear that educational benefit programs that include religious schools among the range of options do not violate the First Amendment. Zelman officially removed the First Amendment’s Establishment Clause from the legal arsenal of school choice opponents.

The ruling upholding the Cleveland choice program falls squarely in line with recent decisions by the U.S. Supreme Court and several state supreme courts. In its 1983 decision in Mueller v. Allen,2 the Court upheld Minnesota’s income tax deduction for educational expenses, including private school tuition. In that case, the Court upheld tax deductions for public and private school expenses even though the vast majority were claimed by religious school parents. In Witters v. Washington Dep’t of Services for the Blind,3 the Court unanimously upheld the use of public funds by a blind student pursuing a divinity degree at a religious college. In Zobrest v. Catalina Foothills School Dist.,4 the Court ruled that the First Amendment does not forbid the use of public funds to provide an interpreter for a deaf child attending a Catholic high school. In Agostini v. Felton,5 the Court overturned prior rulings to uphold the provision of public school teachers to teach students in religious schools for compensatory education under the federal Title I program. Most recently, in Mitchell v. Helms,6 the Court again overturned prior rulings to allow direct aid in the form of

1 536 U.S. 639 (2002). 2 463 U.S. 388 (1983). 3 474 U.S. 481 (1986). 4 509 U.S. 1 (1993). 5 521 U.S. 203 (1997). 6 120 S. Ct. 2530 (2000). computers and other instructional materials for students at religious schools under the federal Chapter 2 program.

The first three state supreme courts to consider the constitutionality of school choice have the programs under the First Amendment. In Jackson v. Benson,7 the Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program, which allows low-income students to use state education funds in private or religious schools. In Simmons-Harris v. Goff,8 the Ohio Supreme Court upheld the Cleveland program later affirmed as constitutional by the U.S. Supreme Court in Zelman. And in Kotterman v. Killian,9 the Arizona Supreme Court sustained a state income tax credit for contributions to private scholarship funds.

2. According to Zelman, what features of a choice program are necessary to satisfy the First Amendment?

Zelman confirms that the critical features of a choice program are religious neutrality and genuine, independent school choice by the beneficiaries of the program. This is precisely the position argued by school choice advocates like the Institute for Justice on the basis of past U.S. Supreme Court precedents. The key idea is that it is parents and students choosing the schools to attend, without the state directing or steering them towards either secular or religious schools. Any “benefits” to the chosen schools are indirect and incidental to their having been chosen by the beneficiaries of the program.

Stated another way, programs that satisfy the First Amendment share three essential common features:

¥ Parents or students (not the state) decide which school to attend. In other words, funds are transmitted from the state to religiously affiliated schools only through the independent decisions of third parties. As a result, the public funds are not subsidies to schools, which are impermissible, but aid to students, which is permissible. In Mitchell, Justice O’Connor emphasized that programs involving “true private choice” are permissible even if funds are used in religious schools.10

¥ The program does not create a financial incentive to attend parochial or sectarian schools. In Mueller, deductions were available for expenses in public or private schools, even though most were claimed by religious school parents. In Witters and Zobrest, benefits were available for use in private or public schools. The Court in Agostini observed that programs do not offend the Establishment Clause where “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.”11 The programs in Milwaukee, Cleveland, Florida and Arizona add private schools to an existing array of public school programs. Neutrality is enhanced when public schools are among the options and/or the private school options are a part of broader education reform.

¥ The program does not create an ongoing state presence in religiously affiliated schools. The state’s regulations should be limited to those necessary to ensure that the program’s educational mission is

7 578 N.W.2d 602 (Wis. 1998), cert. denied, 119 S. Ct. 466 (1998). 8 711 N.E.2d 203 (Ohio 1999). 9 972 P.2d 606 (Ariz.), cert. denied, 120 S. Ct. 283 (1999). 10 120 S. Ct. 2530, 2559-60 (2000) (O’Connor, J., concurring). 11 521 U.S. 203, 231 (1997). 2 achieved. This may (but does not have to) include compliance reports, financial audits, nondiscrimination requirements, health and safety regulations, minimum education requirements and/or testing. It should not include any state oversight of curriculum, personnel or administration. Any program that creates extensive involvement by the state in the schools’ internal affairs is likely to be found an unconstitutional “excessive entanglement.”

3. Has Zelman had any effects yet on existing school choice litigation?

Yes, most definitely. In the ongoing litigation challenging inclusion of the choice of religious schools in Florida’s Opportunity Scholarships Program, after Zelman the plaintiffs dropped their claim that the Program violated the Establishment Clause. In Colorado, which is the first state to pass a parental choice program after Zelman, the plaintiffs, represented by the teachers’ unions, limited their allegations to violations of the state constitution, declining to even allege a violation of the federal Establishment Clause.

Zelman has also led the Institute to renew its challenge to the exclusion of religious options from Maine’s tuitioning program, where both the federal First Circuit and the Maine Supreme Court had ruled contrary to Zelman that the Establishment Clause required the exclusion.

4. Will Zelman eventually mean that legal challenges to parental choice programs will end?

Certainly not. School choice opponents have too much at stake to leave these programs to state legislatures to decide as policy matters. Immediately after Zelman they indicated they would continue using any tools at their disposal to continue to thwart the spread of parental choice programs and they no doubt will. Principal among these tools will be state religion clauses discussed in IJ’s Answers to Frequently Asked Questions About State Constitutions’ Religion Clauses, found online at www.ij.org/schoolchoice. In the Florida litigation, for example, their remaining allegation is that inclusion of religious options violates the state Blaine Amendment forbidding taking money from the state treasury for sectarian institutions. Similarly, in Colorado the plaintiffs allege violations of three state constitutional provisions involving religion.

The Colorado litigation also involves claims that two other state constitutional provisions not involving religion are violated by the program there—one concerning special legislation and another concerning local control. These sorts of claims were also made against the Wisconsin and Ohio programs, and to the extent that they succeeded proved to be only temporary victories for school choice opponents. The legislature quickly enacted curative legislation fixing the problem, without any breaks in the continuity of the program.

5. Does it matter under the First Amendment how funds are transmitted to the schools?

No. In its recent cases, including Zelman, the U.S. Supreme Court emphasized that so long as the program is neutral as between public and parochial or sectarian schools and aid is triggered by the independent decisions of parents or students, the program does not have the “primary effect” of advancing religion—even if funds are directly transmitted to the schools and if religious education is included. The 3 Milwaukee, Cleveland, Florida and Colorado programs make checks payable to parents but send them to the designated school. However, the exclusion of religious schools from a “tuitioning” program in Maine was justified in part by the fact that checks were sent directly to the schools.12 Although those decisions conflict with U.S. Supreme Court rulings, a well-designed program will make checks payable to the parents who sign them over to their chosen school, to avoid the appearance of intending to aid the schools.

6. Is there one best model for a school choice program?

Absolutely not. No “magic formula” for school choice exists from either a policy or legal standpoint. Any well-designed program will heed a couple of important principles:

¥ First, school choice is about opportunities for children—not subsidies for private schools. The focus should remain on expanding educational options available to children.

¥ Second, involving the community in designing the choice program brings the people with the greatest stake into the process. Having parents, private school officials, clergy and community leaders involved from the beginning will ensure the program is responsive to their needs.

School choice comes in more than one shape and size. In Arizona, for instance, public school choice allows students to attend school in a different district from where they live, allowing families to choose a school that meets their needs even if it is farther away from home. Scholarship or voucher programs differ in program design in Milwaukee, Cleveland, Florida and elsewhere; but all these programs return public funding to parents to choose an appropriate school for their child, whether public or private. Tax credits for education, such as those in Illinois and Arizona, allow families to keep more of their own money to spend on education for their children as they see fit. Charter schools are expanding across the nation to offer public alternatives to traditional schools that are able to better meet the specific needs of many students. All of these are instances of how school choice provides families with alternatives.

7. Does the provision of public funds invariably open up private schools to extensive government regulation?

No, though choice proponents must maintain constant vigilance to make sure this does not happen.

Even absent public funds, the state permissibly may regulate private schools. Most if not all states already require private schools to comply with such requirements as health and safety, nondiscrimination, minimum days and hours, and standard courses. Wide variation exists in how extensively states regulate private schools.

Even where explicit limits to government’s authority do not exist, defenders of school choice can effectively challenge regulations that exceed this authority. In Wisconsin, private schools successfully challenged regulations imposed on them by the Superintendent of Public Instruction, even though the choice program does not contain explicit limits. The court reasoned that the choice program’s purpose was to allow children to attend private schools, not to transform private schools into public schools.

12 Strout v. Albanese, 178 F.3d 57 (1st Cir.), cert. denied, 120 S. Ct. 239 (1999); Bagley v. Raymond School Dep’t, 728 A.2d 127 (Me.), cert. denied, 120 S. Ct. 364 (1999). 4 8. Do public funds expose private schools to federal regulations prohibiting discrimination on the basis of race, sex, or religion?

Private schools are already subject to the federal statute prohibiting discrimination on the basis of race in making contracts, 42 U.S.C. ¤ 1981, which the Supreme Court held applicable to private schools in Runyon v. McCrary.13 In addition, private schools must avoid racial discrimination in order to maintain tax- exempt status under the Internal Revenue Code.14 Receipt of public funds in a school choice program would likely have no additional effects on a private school’s obligations with respect to race discrimination.

No federal statute prohibiting sex discrimination applies to the admissions practices of private elementary and secondary schools, including those receiving direct federal financial assistance. Nor do federal regulations appear to cover the activities of private schools that are not recipients of federal financial assistance.

Federal statutes imposing conditions on the receipt of public funds do not prohibit discrimination on the basis of religion, so absent provisions in state law or the choice program itself, the admissions criteria of religious schools participating in such programs should not be affected.

Florida’s Opportunity Scholarships program—as well as choice programs in Milwaukee, Cleveland and Colorado—requires participating schools to enroll students on a random selection basis, providing an effective check on discrimination. A planned program in Washington, D.C. also requires a random admissions lottery.

9. What effect does school choice have on children with disabilities?

Choice programs provide additional opportunities to children with disabilities whose parents believe that private schools are more appropriate for their children. In Florida, McKay Scholarships are geared toward making choice a reality for disabled school children. Any time a parent chooses a private school in a choice program, the state or school district, which receive federal funds under the Individuals with Disabilities Education Act, remain obligated to provide “equitable participation” in special education services.

10. Are there any circumstances in which courts have awarded “voucher” remedies for educational deprivations?

Yes. Under the Individuals with Disabilities in Education Act, federal and state courts consistently have ruled that where public schools fail to provide disabled youngsters “appropriate” education, they must reimburse parents for obtaining such services in private schools.15 So far, no court has awarded voucher remedies for general educational deprivations.

13 427 U.S. 160 (1976). 14 Bob Jones University v. United States, 461 U.S. 574 (1983). 15 See, e.g., Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993). 5 The Authors

Clint Bolick is vice president and national director of state chapters at the Institute for Justice. For the past 12 years, he has led the nationwide effort to defend school choice programs, with victories in the Wisconsin, Ohio, and Arizona Supreme Courts and culminating in Zelman v. Simmons-Harris in the U.S. Supreme Court. Before co-founding the Institute, Bolick served as director of Landmark Legal Foundation’s Center for Civil Rights and as an attorney with the United States Department of Justice, Civil Rights Division.

Richard D. Komer is a senior litigation attorney at the Institute for Justice. Before joining the Institute in 1993, Komer served as a civil rights lawyer for 14 years in several federal departments and agencies, including service as Legal Counsel at the Equal Employment Opportunities Commission and as Deputy Assistant Secretary for Civil Rights at the U.S. Department of Education. At IJ he has worked on parental choice cases in Arizona, California, Florida, Illinois, Maine, Ohio, Pennsylvania, Vermont and Wisconsin.

Permission is granted to reprint these materials in full, provided attribution is made to the authors and to the Institute for Justice with its website (www.ij.org) and phone number (202) 955-1300.

Media Contact

For more information and/or interviews about school choice or the Institute for Justice, please contact:

Lisa Knepper, director of communications, at (202) 955-1300, ext. 202, or John Kramer, vice president for communications, at (202) 955-1300, ext. 205.

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