School Choice In The Courts

Policy Backgrounders | Education

No. 153
Monday, August 07, 2000
by Melanie L. Looney


"Most of the opposition to choice has been targeted at voucher programs that allow participation by religious schools."

As the quality of public education has declined, Americans have sought to introduce competition into the education arena. Polls show widespread support for alternatives, particularly among minorities and parents in urban areas. [See the Public Support for School Choice sidebar.] Political leaders in a number of states have responded by expanding educational opportunities.

Among the alternative educational opportunities now available are: (1) intradistrict transfer programs limited to public schools, (2) restricted voucher programs that allow students to use public funds to attend public or private nonreligious schools, (3) unrestricted voucher programs that embrace public, private and religious schools, (4) charter schools within the public education system, (5) tax credits for tuition and fee payments for school expenses (whether public, private or religious) and (6) home schools. While each of these alternatives has drawn criticism, most of the opposition and litigation has been targeted at unrestricted voucher programs which allow participation by public, private and religious schools.

The unrestricted vouchers are targeted by opponents as a violation of the First Amendment's Establishment Clause, which they contend requires a total separation of church and state activities. The Supreme Court has ruled on a number of education-related cases in this area. Over the past half-century, the Court's interpretation of the Establishment Clause has evolved to create three distinct tests in Lemon, Mueller and Agostini. Most recently the Court continued to apply the Agostini test when it ruled in Mitchell v. Helms1 that government neutrality towards religion, rather than complete separation, is required by the Establishment Clause. This and previous cases may provide insight into how the High Court will rule on the school choice cases now making their way through the state courts.

The need for alternatives to traditional public schools is clear. The alternatives must be able to withstand challenges to their constitutionality.

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