School Choice In The Courts

Policy Backgrounders | Education

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


School Choice in State Courts

Milwaukee Vouchers. With these cases as the backdrop, the first specific attacks on school voucher programs began with the Milwaukee, Wis., program. The Wisconsin program that eventually came under attack was an unrestricted voucher program. The Wisconsin Supreme Court found that it did not violate either the Establishment Clause or the state constitution.22 The state's High Court held that the benefits were made available to both religious and nonreligious education institutions neutrally and that any benefits to religious institutions flowed from the choices of the individual parents. The case was appealed to the U.S. Supreme Court, which in 1998 declined to review it and thus allowed the state court decision to stand.23

"The U.S. Supreme Court declined to review the Wisconsin Supreme Court's upholding of the Milwaukee program."

Arizona Tax Credits. In Arizona the battle was not over a voucher program per se, but over a $500 state tax credit for donations to school tuition organizations that provide scholarships for any student to attend a private secular or religious school. Any taxpayer who donated funds to school tuition organizations could get a credit of up to $500 on the state income tax return unless the donor directed use of the funds to any of his or her dependents. In Kotterman v. Killian,24 the Arizona Supreme Court upheld the credit stating that "Arizona's statute provides multiple layers of choice. Important decisions are made by two distinct sets of beneficiaries-taxpayers taking the credit and parents applying for scholarship aid in sending their children to tuition-charging institutions... Thus, the schools are no more than indirect recipients of taxpayer contributions, with the final destination of these funds being determined by individual parents."25 The Court specifically noted that there was little, if any, difference between the level of choice available under Arizona law and the choice available under the Minnesota deduction addressed in Mueller. The Arizona Supreme Court's decision was appealed to the U.S. Supreme Court, which in 1999 declined to review it and allowed the lower court decision to stand.26 While Arizona's plan is not specifically a voucher program, the Court's action in letting the decision stand may signal its willingness to allow vouchers for religious schools at some later date. At least 32 school tuition organizations have been established, and about $75 million has been made available for private school tuition payments in Arizona.27

Cleveland Vouchers. The Ohio legislature and courts faced a more urgent situation. The Cleveland City School District was ordered to be taken over by the state due to educational and fiscal crises. In addition, the legislature approved a pilot program of "alternative school" scholarships and tutorial grants for students staying within the Cleveland district. The scholarship program was open to all private schools in the district and public schools in the adjacent districts. None of the public schools in the adjacent districts chose to participate. The amount of scholarship aid was tied to the family's income level, and the maximum was $2,500. Tutorial grants were limited to $500. An equal number of scholarships and grants were awarded each school year.

On appeal, the Ohio Supreme Court held that the program did not violate the Establishment Clause or state constitutional provisions.28 The program was challenged in the federal courts in the summer of 1999. A federal district judge found the program violated the Establishment Clause and issued an injunction against it. Later the same federal judge modified the injunction to allow those students who had previously participated to remain in the program but refused to allow any new students. When the decision was appealed to the U. S. Supreme Court, the justices overturned the injunction pending a final decision in the case.29 This was the first time the Court had spoken directly on a case involving school choice. Legal experts think that action may signal the Court's willingness to hear the Ohio case.

The challenges in Maine and Vermont are unique to their education systems. Both states force school districts that do not operate secondary schools to pay the tuition of students at "approved independent schools" or public schools in other districts.

"The Maine Cases looked only at whether excluding religious schools from tuition programs violated rights"

Maine's Tuition Program. Before 1981, Maine parents were able to select either religious or nonreligious institutions and have the tuition paid by their school district. In 1981 the Maine legislature, relying on an opinion from its attorney general, made religious schools ineligible for the program to prevent an Establishment Clause challenge. After the program was restricted to secular schools, it was challenged in two separate suits: Bagley v. Raymond School Dept.30 in the state courts of Maine and Strout v. Albanese31 in federal court. Opinions in the two cases were issued within one month of each other.32 In both suits the families challenged the limitation excluding religious schools as a violation of the Free Exercise Clause, the Establishment Clause and the Equal Protection of the laws under the Fourteenth Amendment. In both decisions the respective courts determined that the program's exclusion of religious schools did not violate any of the families' rights. The families filed appeals to the U. S. Supreme Court, which chose not to hear the suits and allowed the decisions to stand.33

Both decisions stressed that these cases were different from previous education cases. Previous cases that dealt with religious schools involved flows of public money into the schools; these cases dealt with the exclusion of religious schools from available monies. They forced the courts to consider only whether such exclusions accord with the prohibitions of the Establishment Clause. The Maine courts found that the Maine legislature had amended its program to withstand an Establishment Clause challenge under recent legal decisions in that area. Both the state and federal courts acknowledged that later cases had seemingly indicated significant shifts in this area, but both left any future changes to higher courts.

Both courts also noted that they might have viewed the matter differently if the program had included a safeguard where any money that went to religious schools was restricted to secular educational purposes. The courts did not rule out future inclusion of religious schools in a program incorporating such restrictions.

Vermont's Tuition Program. In Vermont, the legislature never modified the tuition program to make religious schools ineligible. Vermont did not require that an "approved independent school" prohibit use of taxpayers' funds for religious training or instruction. The Vermont tuition program was challenged in Chittenden Town Sch. Dist. v. Department of Educ.34 on both state and federal grounds. In deciding the case, the Vermont Supreme Court noted that in earlier, similar cases the state's courts had analyzed the First Amendment issue because "the federal law was clear and the court was uncertain of the outcome under... the Vermont Constitution," but noted that the federal law "has become less clear."35 Accordingly, the Court chose to make its decision solely on state constitutional grounds, precluding appeals to the federal court system.

"The Vermont Court made its decision solely on state constitutional grounds, and left a window of opportunity for change."

The Vermont families made the same arguments as did the families in Maine, but the key to the Vermont decision was the wording of the state statute: "[N]o person ought to, or of right can be, compelled to attend any religious worship, or erect or support any place of worship..."36 Under that clause, the Court determined that the tuition program must be limited to nonreligious schools and thus denied the request for reimbursement by the state of tuition payments to religious schools. The Court did leave open a window of opportunity, should the Vermont legislature choose to exercise it. Specifically, the Court stated, "we conclude that the Chittenden School District tuition-payment system, with no restrictions in funding religious education, violates (the Vermont Constitution). The major deficiency in the... system is that there are no restrictions that prevent the use of public money to fund religious education... We decide only that the current statutory system, with no restrictions on the purpose or use of the tuition funds violates Article 3."37 This statement appears to allow the state legislature to authorize tuition payments to religious schools by limiting the use of the funds to education, not religious instruction. Again, this legal precedent is limited to Vermont.

Florida's Statewide Vouchers. In 1999, Florida enacted the nation's first and only statewide voucher program. This unrestricted program provides "Opportunity Scholarships" to students in chronically failing schools - schools whose test scores fail to meet the minimum state standard for two out of four years.38 During the first year of the program, only two Pensacola schools met the criterion. Fifty-three scholarships were awarded to students from these schools.39

An estimated 60,000 students at 78 other Florida schools were alerted that they might be eligible for these scholarships in the 2000-2001 school year.40 The students and the schools improved their academic achievements and all 78 schools earned at least a D on the state tests. A study by the Alexis de Tocqueville Institute's Teacher Choice Program found that the voucher program had forced the public schools to change by injecting competition into the system.41 For example,

  • First grade class sizes fell to 18 students in 104 low-performing Broward County schools.
  • In the 26 worst Miami-Dade County schools, 210 new teachers were hired.
  • In Miami-Dade County schools, $11 million in federal funds was shifted to increase math and reading instruction.42

"Florida's voucher program impelled the public schools to make reforms."

The two Pensacola schools also saw positive changes. Students remaining in these schools got a longer school year, lower teacher-pupil ratio, greater focus on core subjects and increased tutoring.43 In "Competing to Win," retired Washington Times education journalist Carol Innerst reported that the voucher program was having an "uplifting effect" on the public schools.44

Despite the program's success in improving education, it faces state court challenges from the National Association for the Advancement of Colored People (NAACP) and the teachers' unions. In March 2000 a state circuit judge ruled the program unconstitutional under Florida's constitution.45 The teachers' unions requested that the judge stop the program while the case was on appeal, but that request was denied.46 The case remains on appeal.


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