Institute for Justice 1717 PENNSYLVANIA AVE., N.W. SUITE 200 WASHINGTON, D.C. 20006 (202) 955-1300 FAX (202) 955-1329 HOME PAGE: WWW.IJ.ORG 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.