NCPA - National Center for Policy Analysis

School Choice Battles in the Courts

October 10, 2014

School choice laws have opened new educational doors to hundreds of thousands of children, and support for the programs -- whether charter schools or tax credits or school vouchers -- has grown dramatically, especially among low-income families (who support tax credit laws at a rate of 67 percent, according to a Friedman Foundation survey), the young (at 74 percent), black Americans (72 percent) and Hispanics (80 percent).                                                                                                                  

With their popularity on the rise, interest groups have taken to attacking the programs through the courts, says education policy analyst Jason Bedrick of the Cato Institute. Currently, he explains, lawsuits against school choice laws are raging in Alabama, Colorado, Oklahoma, Louisiana, North Carolina and Florida.

What are the legal challenges? Supreme Court precedent from 2002 ruled school voucher programs (which send dollars directly to parents, allowing them to choose how to spend the funds) constitutional, so litigants challenge the laws under state constitutions. These challenges include:

  • Blaine Amendment lawsuits: A number of state constitutions have "Blaine Amendments" (late nineteenth century laws named for a senator who sought a constitutional amendment to ban aid to religious schools). Courts have been split on their treatment of vouchers under these amendments, but state supreme courts have never ruled against school choice tax credit laws on these grounds.
  • Uniformity clause lawsuits: Many state constitutions call for funding of a "uniform…system of free public schools." Florida is one such state, and litigants have claimed the uniformity clause requires one, single school system. Such a challenge is currently being litigated in the state. If a court rules against school choice, 70,000 children (the majority of which are minority students of low-income families) will lose their right to have a voice in their own education.
  • Segregation lawsuits: Some plaintiffs have claimed school choice laws hinder desegregation efforts. The Department of Justice argued this in Louisiana last year, offering two examples of alleged segregation: one school lost six black students due to vouchers, while another predominately black school lost five white students. Both of these changes only altered the racial balance within the schools by less than 1 percent.

Bedrick writes legislators seeking to expand schooling options for students in their states should consult with attorneys in order to ensure their school choice laws can withstand the inevitable legal challenges that will follow.

Source: Jason Bedrick, "The Left's Legal War on Children," National Review, October 8, 2014.


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