School Choice In The Courts

Policy Backgrounders | Education

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

Future Direction of the Courts

With Vermont, Florida and other states considering arguments that their constitutions are more restrictive than federal law, future suits by school choice opponents are likely to focus on these state issues, which may forestall federal court decisions . However, it is not clear that such decisions cannot be re-litigated in federal court. School choice supporters may assert that state court decisions deprive citizens of rights afforded under dual (federal and state) citizenship.

The current federal case law and Supreme Court views suggest that unrestricted voucher programs allowing neutral participation by public, private and religious schools are likely to withstand constitutional scrutiny by the current Court. The Court has allowed payments directed by students or parents to the institution of their choice, and has not required that money pass through individual student or parent hands. Thus, direct payments or direct loans to religious schools do not violate the Establishment Clause. However, the Court has continued to require a "genuine and independent choice" regarding the institution designated to receive the aid.

The state court challenges appear to require that the aid not be used in any religious instruction or worship. This requirement, while seemingly simple, would be difficult to administer and even more difficult to monitor.

"The Court has continued to require a 'genuine and independant choice' by students or parents regarding payments to religious schools."

Another important change facing school choice supporters and opponents is the composition of the Court. The Court currently has two broad groups of justices - on the conservative side, Chief Justice Rehnquist and Associate Justices O'Connor, Kennedy, Scalia and Thomas; on the liberal side, Associate Justices Stevens, Breyer, Ginsburg and Souter. The majority of this Court's opinions have been 5-4 decisions, generally on the conservative side. Most legal experts expect at least three and perhaps four justices to retire in the next four years, two from the conservative side (including the Chief Justice) and one or two from the liberal side. The next president will likely appoint almost half of the Supreme Court, including the Chief Justice. Such appointments could shift the balance of the court, changing its interpretation of the Establishment Clause.

Read Article as PDF