Policy design is critical, however. School choice is constitutional at the federal level and in most states, as long as policies and programs are designed properly.
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 even 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.
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 the United State 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.”
As of 2010, school vouchers are constitutionally favorable in 34 states and tax-credit scholarships are favorable in 48 states.
In the end, the constitutionality of a voucher or school choice policy depends on how well the policy is designed. If parents make a truly private choice as to which school their child attends, if there is no financial incentive to attend a religious school over a nonreligious school, and if a program does not allow undue government interference with religious schools, chances are the program will be looked on favorably by the courts.
Number of State Constitutions Favorable to School Choice Policies
|Montana: Tax Credits for Contributions to Student Scholarship Organizations||United States District Court for the District of Montana||Armstrong v. Kadas||TBD||On December 28, 2015, as a consequence of rules promulgated by the Montana Department of Revenue prohibiting scholarship granting organizations from granting scholarships to children to attend religious schools, the Pacific Legal Foundation (PLF) filed a lawsuit in federal court advocating on behalf of parents who seek to use these scholarships to send their children to religiously affiliated schools and on behalf of the Association of Christian Schools International (ACSI), which has 10 member schools that are religiously affiliated in Montana. PLF contends that enforcement of the administrative rule violates the U.S. Constitution’s establishment, free exercise, and equal protection clauses, as well as Montana law. The court dismissed the case on a motion to abstain, in light of the state court’s issuance of a temporary injunction against the department of revenue’s implementation rule. Plaintiffs appealed to the Ninth Circuit Court of Appeals, arguing that abstention is not proper in this case. Pending.|
|Nevada: Education Savings Accounts||District Court, Clark County||Norman v. State||TBD||On December 22, 2015, parents seeking to participate in the ESA program filed a request for declaratory relief with the District Court in Clark County, Nevada. Plaintiffs allege that with so much uncertainty surrounding implementation of the program, in light of the two lawsuits pending in Duncan and Lopez, they are entitled to relief by having this court affirmatively rule that Nevada’s ESAs are constitutional and that there is no legal reason preventing the State Treasurer from implementing the program and funding ESAs. On January 7, 2016, Nevada Attorney General Laxalt filed a Motion to Dismiss the case for lack of standing, and a Motion to Disqualify due to the fact that counsel representing Plaintiffs is the law firm of Nevada’s Lieutenant Governor, who, the Attorney General argues, has many conflicts in this case. Attorney General Laxalt stated his belief that the ESAs are constitutional, but that this case will unduly hamper efforts to prove that point in the two other cases. The parties submitted a joint stipulation to stay litigation in the case, effectively suspending the case indefinitely.|
|Montana: Tax Credits for Contributions to Student Scholarship Organizations||Montana Eleventh Judicial District Court||Espinoza v. Dept. of Revenue||TBD||On December 16, 2015, also as a consequence of rules promulgated by the Montana Department of Revenue prohibiting scholarship granting organizations from granting scholarships to children to attend religious schools, the Institute for Justice (IJ) filed a lawsuit in state court advocating on behalf of parents who seek to use these scholarships to send their children to religiously affiliated schools as the new state statute allows. IJ contends that the rules are contrary to the statute and that by excluding these religious schools, the department is violating the religious liberty and equal protection rights of Montanans. On March 31, 2016 Judge David Ortley from the Montana Eleventh Judicial District Court, issued a temporary injunction prohibiting the Montana Department of Revenue from implementing a rule prohibiting religious schools from participating in the program. The judge ruled that both the U.S. and Montana Constitutions prohibit the establishment or free exercise of religion and that the proposed rule would hinder a parent’s ability to choose a religious education for their child. The judge concluded that the plaintiffs were likely to succeed on the merits of the case. In May 2016, plaintiffs filed a motion for summary judgement. Pending.|
|New Hampshire: Education Tax Credit Program||Sullivan Superior Court||Dept. of Education v. Croydon School Board, et. al.||July 29, 2016||The Town of Croydon’s School Board was been sued by the state department of education. The Croydon school board has been offering town tuitioning to students who reside in its town. Like many towns in New Hampshire, Croydon does not have a middle school or high school, and its elementary grades are limited. Under New Hampshire law, public schools may send children to a neighboring town’s school, or a school that meets the unique needs of its students. Most of Croydon’s students—at this time, 37 children in grades five through 12—attend public school at the neighboring town of Newport. However, five children requested to attend a nearby Montessori school, and the Croydon school board determined that this would, indeed, meet the needs of these children. The state department of education alleges that Croydon is barred from sending children to any private school (although admits that children with special needs may be sent to a private school under state law). On December 14, 2015, the Court denied the state’s request for preliminary injunction against Croydon. Following a hearing on the merits, the court ruled that Croydon did not have the authority to town tuition students to a private school. An appeal is pending.|
|Florida: John M. McKay Scholarships for Students with Disabilities Program and Florida Tax Credit Scholarship Program||Circuit Court of the Second Judicial Circuit In and For Leon County||Citizens for Strong Schools, Inc., et al. v. Florida State Board of Education, et al.||May 24, 2016||In July 2014, Citizens for Strong Schools, Inc. and Fund Education Now amended a five-year-old lawsuit to contend the Florida Tax Credit Scholarship Program and the McKay voucher program for students with special needs, among other programs, unconstitutionally “divert” money from Florida’s public schools. The Court ruled against plaintiffs, upholding the constitutionality of Florida’s school choice programs. On June 28, plaintiffs appealed the ruling to the District Court of Appeal State of Florida First District, requesting the case be accepted for direct appeal to Florida’s Supreme Court. That decision is pending.|
|Oklahoma: Lindsey Nicole Henry Scholarships for Students with Disabilities||Oklahoma Supreme Court||Oliver v. Hofmeister||February 16, 2016||In a written opinion released September 10, 2014, the Oklahoma County District Court ruled the Lindsey Nicole Henry Scholarship for Students with Disabilities program violates Article 2, Section 5—the Oklahoma Constitution’s Blaine amendment—only insofar as the program allows public funds to be used to pay tuition at private, sectarian, schools; paying tuition at private, non-sectarian religious schools is not permissible in this narrow ruling. On February 16, 2016, the Oklahoma Supreme Court ruled that the state’s voucher program is constitutional in a unanimous decision with one concurring opinion. Factors key to the court’s decision include, 1) participation in the voucher program is voluntary; 2) a parent’s choice of school is strictly independent; 3) education funding flows from the state to the parent; 4) the program itself is neutral regarding religion; 5) any benefit to a private school is derived from the parent’s choice, not the state; 6) there is no adverse impact on the ability of religious schools to act independently of state control; 7) there is a substantial benefit to the state when a child uses a voucher; it is not a gift. Citing the landmark Zelman v. Simmons-Harris case (see Ohio: Cleveland Scholarship Program), the court said, “When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken.”|
|Georgia: Qualified Education Expense Tax Credit||Fulton County Superior Court||Gaddy v. Dept. of Revenue||February 7, 2016||On May 8, 2014, parents of children in Georgia’s tax-credit scholarship program joined the suit against the state’s department of revenue with the support of the Institute for Justice, which moved to dismiss the case. Trial court ruled against plaintiffs, affirming constitutionality of the program. This ruling was appealed to the Georgia Supreme Court, and is being briefed. Pending.|
|North Carolina: Opportunity Scholarships and Special Education Scholarship Grants for Children with Disabilities||North Carolina Supreme Court||Hart v. North Carolina, Richardson v. North Carolina||July 23,2015||On July 23, 2015, the North Carolina Supreme Court upheld all aspects of the state’s two vouchers, the Opportunity Scholarships pProgram and the Special Education Scholarship Grants for Children with Disabilities, as constitutional.|
|Colorado: Douglas County Choice Scholarship Program||Colorado Supreme Court||Larue v. Colorado Board of Education||June 29, 2015||In a 3–1–3 decision, the Colorado Supreme Court ruled the Douglas County Choice Scholarship Program unconstitutional. In October 2015, the state submitted a Petition for Writ of Certiorari, submitting the case for review by the Supreme Court of the United States on the Blaine amendment issue. This case is pending.|
|Alabama: Alabama Accountability Act of 2013 Parent-Taxpayer Refundable Tax Credits and Education Scholarship Program||Alabama Supreme Court||Boyd v. Magee||March 2, 2015||The Alabama Supreme Court ruled, in an 8-1 decision, that the Alabama Accountability Act enacted in 2013, which includes Alabama’s refundable tax credit and tax-credit scholarship program, is constitutional. The high court overturned a May 2014 lower court ruling by the Montgomery County Circuit court which initially struck down the Alabama Accountability Act.|
|Arizona: Empowerment Scholarship Accounts||Arizona Court of Appeals||Niehaus v. Huppenthal||March 21, 2014||The Superior Court of Arizona, Maricopa County, found this program to be constitutional because it allows the parents of qualified students to choose how and when all, or a portion of, the account monies are spent. The case was closed when the Arizona Supreme Court declined to review the Court of Appeals’ ruling.|
|New Hampshire: Education Tax Credit Program||Strafford County Superior Court||Duncan v. State of New Hampshire||June 17, 2013||The Stafford County Superior Court ruled that New Hampshire’s tax-credit scholarship program violates the state Constitution’s "Blaine Amendment," and scholarships cannot be used at religious schools.|
|Louisiana: Louisiana Scholarship Program||Louisiana Supreme Court||Louisiana Federation of Teachers, et al. v. State of Louisiana, et al.||May 7, 2013||On November 30, 2012, the 19th Judicial District Court in Baton Rouge ruled the program violated the state's funding formula. On May 7, 2013, the state's Supreme Court concurred. On June 6, 2013, the Louisiana House and Senate compromised on a budget that allows the program to use funds not allocated through the state's funding formula.|
|Indiana: Choice Scholarship Program||Indiana Supreme Court||Teresa Meredith, et al. v. Mitch Daniels||March 26, 2013||Indiana's Choice Scholarship Program was declared constitutional under the Indiana state constitution in a unanimous ruling.|
|Oklahoma: Lindsey Nicole Henry Scholarships for Students with Disabilities||Oklahoma Supreme Court||Jenks Public Schools v. Spry||November 19, 2012||The Supreme Court dismissed school districts’ lawsuit that demanded students cannot receive scholarships from the state to attend private schools better equipped to accommodate their needs.|
|Arizona: Original Individual Income Tax Credit Scholarship Program||U.S. Supreme Court||Winn v. Garriott||April 4, 2011||The U.S. Supreme Court dismissed the legal challenge to Arizona's tax credits for School Tuition Organizations, ruling that tax credits are not public money and therefore cannot be challenged under "taxpayer standing" available in other First Amendment challenges.|
|Arizona: Low-Income Corporate Income Tax Credit Scholarship Program||Arizona Court of Appeals||Green v. Garriott||March 12, 2009||Arizona's Low-Income Corporate Income Tax Credit Scholarship Program was ruled constitutional; the Arizona Supreme Court refused to hear an appeal.|
|Maine: Town Tuitioning Program||Maine Supreme Judicial Court||Anderson v. Town of Durham||April 25, 2006||The 1999 decision (Bagley v. Raymond, below) was upheld, stating that the legislature may still choose to restrict funding of sectarian schools under the Maine Constitution, despite Zelman's ruling that voucher programs do not violate the federal First Amendment.|
|Colorado: Opportunity Contract Program||Colorado Supreme Court||Colorado Congress of Parents, Teachers and Students v. Owens||June 28, 2004||Colorado's Opportunity Contracts program was halted by the state’s Supreme Court.|
|Vermont: Town Tuitioning Program||U.S. District Court for Vermont||Genier v. Larson||Lawsuit terminated March 11, 2004||Vermont was allowed to continue giving residents the right to send their children to any school of their choice, except for religious schools.|
|Ohio: Cleveland Scholarship Program||U.S. Supreme Court||Zelman v. Simmons-Harris||June 27, 2002||Private school choice, including choice of religious schools, was declared constitutional and not a violation of the First Amendment's Establishment Clause.|
|Illinois: Tax Credits for Educational Expenses||Illinois Supreme Court||Toney v. Bower and Griffith v. Bower||July 21, 2001||Illinois' Tax Credits for Educational Expenses program was declared constitutional.|
|Pennsylvania: Educational Improvement Tax Credit||Commonwealth Court of Appeals||Giacommuci v. Southeast Delco School District||December 23, 1999||Pennsylvania's Education Improvement Tax Credit was declared constitutional.|
|Vermont: Town Tuitioning Program||Vermont Supreme Court||Chittenden v. Vermont Dept. of Education||June 11, 1999||It was ruled that Vermont's Department of Education may exclude from the Town Tuitioning Program students who attend religious schools.|
|Ohio: Cleveland Scholarship Program||Ohio Supreme Court||Simmons-Harris v. Goff Gatton v. Goff (consolidated)||May 27, 1999||School choice was declared constitutional by Ohio’s Supreme Court.|
|Maine: Town Tuitioning Program||Maine Supreme Judicial Court||Bagley v. Raymond||April 23, 1999||The Court ruled that Maine's Town Tuitioning Program may exclude religious schools.|
|Arizona: Original Individual Income Tax Credit Scholarship Program||Arizona Supreme Court||Kotterman v. Killian||January 26, 1999||The Court upheld the constitutionality of the tax credit program. This decision was appealed to the U.S. Supreme Court, which, in October 1999, declined to review the case.|
|Wisconsin: Milwaukee Parental Choice Program||Wisconsin Supreme Court||Jackson v. Benson||June 10, 1998||Milwaukee's Parental Choice Program was declared constitutional.|
|Minnesota: Education Deduction||U.S. Supreme Court||Mueller v. Allen||June 29, 1983||Minnesota's individual tax deduction program for textbooks and supplies was declared constitutional by the U.S. Supreme Court.|
Sources: “School Choice,” Institute for Justice, accessed July 14, 2015, www.ij.org/cases/schoolchoice; The Friedman Foundation for Educational Choice, “Legal History” in The ABCs of School Choice: The Comprehensive Guide to Every Private School Choice Program in America, 2015 ed. (Indianapolis: Friedman Foundation for Educational Choice, 2015), pp. 111-14, http://www.edchoice.org/ABCs.
“Is School Choice Constitutional?,” Friedman Foundation for Educational Choice, last modified Feb. 24, 2016, http://www.edchoice.org/school-choice-faqs/is-school-choice-constitutional.