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Are school choice programs legal?

As we mentioned before, school choice is constitutional at the federal level and in most states, as long as policies and programs are designed properly. The U.S. Supreme Court has made it clear that public funding can be allocated to a family to spend on a child’s K–12 schooling, including for faith-based education. Some states have constitutional language prohibiting the use of taxpayer dollars to support children who attend faith-based schools, but those provisions have been challenged federally and at the state level.

In 2002, the U.S. Supreme Court answered this constitutional question at the federal level. In the landmark Zelman v. Simmons-Harris case, the Supreme Court upheld the constitutionality of Cleveland’s school voucher program by a 5–4 vote. The justices made it very clear that when an individual uses public funds to make a private choice—in this case when a parent uses a voucher to send his or her child to a private school (including religious schools)—it does not violate the First Amendment.

Chief Justice William Rehnquist explained in the majority opinion that voucher programs, such as Cleveland’s, are “neutral in respect to religion (because they) provide assistance directly to a broad class of citizens, who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.” Hence, if a school choice program allows “true private choice” and it is “religiously neutral,” then it is constitutional.

In 2011, the Supreme Court decided the case of Arizona Christian School Tuition Organization v. Winn, which involved a constitutional challenge to Arizona’s program offering tax credits for donations to school tuition organizations. In that case, Justice Anthony Kennedy’s majority opinion held that the plaintiffs—Arizona taxpayers—could not bring a lawsuit in federal court in the first place. That is because it was far too speculative for individual Arizona taxpayers to prove that they had been harmed merely because other taxpayers had been given a tax credit, particularly for an activity (sending children to private schools) that would save the state money in the long run.

The Zelman and Winn decisions are in line with a long series of precedent. For example, in 1983, the Supreme Court upheld Minnesota’s income tax deduction for educational expenses, including private school tuition. In 1993, the Court unanimously upheld the use of public funds by a blind student pursuing a divinity degree at a religious college.

Moreover, the G.I. Bill and Pell Grants are constitutional. Both federal programs offer vouchers to college students to attend the public or private schools of their choice, including religious colleges and universities. No one contends that those programs are unconstitutional, nor do they argue the constitutionality of federal programs offering vouchers for early childhood education that can be used at faith-based day care centers.

Although recent U.S. Supreme Court rulings have favored school choice, some state constitutions have language prohibiting the use of taxpayer dollars to support religious schools. Such constitutional language is often referred to as a “Blaine Amendment,” named after the 19th century anti-Catholic nativist bigotry associated with former U.S. Sen. James Blaine. However, as the Institute for Justice argues, “many court decisions interpret state constitutions to parallel the First Amendment. If so, the recent First Amendment cases discussed above should control state constitutional interpretation. If the state constitutional provision is more restrictive, advocates may have to challenge such restrictions under the federal constitution.”

To read more about all of the cases brought against individual school choice programs in the states, visit the Legal History section of our ABCs of School Choice.