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  School Choice: Answers to the Most Frequently Asked Legal QuestionsSunday, June 25th, 2017  
by Clint Bolick, Richard D. Komer, and Matthew Berry

As school choice advocates move forward in their quest to expand educational opportunities, they often are confronted with legal issues, including whether their proposals are constitutional. The only sure bet is that any school choice program that includes private schools will be challenged in court. But well-designed school choice programs should survive legal scrutiny.

In this paper, three of the nation's leading school choice legal experts address in plain English the most commonly raised legal questions about school choice. The purpose is to provide guidance to school choice proponents, and to rebut fallacies popularized by choice critics.

This paper is intended as a general legal primer. Choice advocates are encouraged to consult with the Institute for Justice and local attorneys in drafting specific proposals.

1. Is there a model school choice program?

Absolutely not. No "magic formula" for school choice exists from either a policy or legal standpoint. Experience has demonstrated that the most successful school choice proposals are drafted by people who know the local political landscape and have close ties to the community.

Nonetheless, given the certainty that successful school choice programs will be challenged in court, it is useful to anticipate those challenges and to build a legal strategy into the proposal itself.

In addition to taking applicable legal principles into account, two rules of thumb are useful for choice proponents:

First, language is important. In particular, wording emphasizing that school choice is about opportunities for children -- not subsidies for private schools -- will help the legal defense. Programs that expand opportunities for the educationally disadvantaged often enjoy special judicial deference.

Second, involving the community in drafting the proposal brings the people with the greatest stake into the process. Having parents, private school officials, clergy, and community leaders involved from the beginning will ensure the program is responsive to their needs and make the task of defending the program easier, since theirs are the interests most directly implicated.

2. Are school choice programs that include religious schools permissible under the First Amendment?

Yes. Recent decisions by the U.S. Supreme Court and several state supreme courts make clear that unlike direct subsidies to religious schools, educational benefits that include religious schools among the range of options do not violate the First Amendment.

The U.S. Supreme Court applies a three-part test to determine whether state action violates the First Amendment's prohibition against establishment of religion (the "establishment clause"): (1) whether the action has a "secular purpose," (2) whether its "primary effect" is to advance religion, and (3) whether it creates "excessive entanglement" between the state and religious institutions. Litigation in the school choice area revolves around the second and third questions.

Prior to 1980, Supreme Court decisions fueled concerns about whether efforts to allow children to use state funds in religiously affiliated schools were constitutional. In its 1973 decision in Committee for Public Education and Religious Liberty v. Nyquist, for instance, the Court struck down a New York statute that provided tax benefits for private school students. The Court concluded that since the program extended benefits only to private school families, it created an incentive for children to attend religious schools. The Court did not address whether the program would be permissible if benefits were also available to public school parents.

Though it has not overturned Nyquist, the Court since then has taken a more common-sense approach, upholding efforts designed to expand educational opportunities. In its 1983 decision in Mueller v. Allen, the Court upheld Minnesota's income tax deduction for educational expenses, including private school tuition. In that case, the Court resolved the question it left open in Nyquist, upholding tax deductions for public and private school expenses even though the vast majority were claimed by religious school parents. In Witters v. Dep't of Services for the Blind, the Court unanimously upheld the use of public funds by a blind student pursuing a divinity degree in a religious college. In Zobrest v. Catalina Foothills School Dist., the Court ruled that the First Amendment does not forbid the use of public funds to provide an interpreter for a deaf child attending a Catholic high school. And most recently, in Agostini v. Felton, the Court overturned prior rulings to uphold the provision of public school teachers to teach students in religious schools for compensatory education under the federal Title I program.

The first three state supreme courts to consider the constitutionality of school choice have upheld the programs under the First Amendment. In Jackson v. Benson, the Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program, which allows low-income youngsters to use state education funds in private or religious schools. In Simmons-Harris v. Goff, the Ohio Supreme Court upheld a similar program in Cleveland. And in Kotterman v. Killian, the Arizona Supreme Court sustained a state income tax credit for contributions to private scholarship funds.

These cases demonstrate that choice programs designed not to subsidize religiously affiliated schools but to serve an educational need are likely to survive constitutional challenge.

3. What features are necessary to satisfy the First Amendment?

Programs that have survived First Amendment challenges share three essential common features:

The decision of which school to choose is made by parents or students, not the state. In other words, funds are transmitted from the state to religiously affiliated schools only through the independent decisions of third parties. As a result, the public funds are not subsidies to schools, which are impermissible, but aid to students, which is permissible.

The program does not create a financial incentive to attend private schools. In Nyquist, the tax deductions were available only to private school parents, which in the Supreme Court's view created an incentive to choose private schools. In Mueller, by contrast, deductions were available for expenses in public or private schools, even though most were claimed by religious school parents. In Witters and Zobrest, benefits were available for use in private or public schools. The Court in Agostini observed that programs do not offend the establishment clause where "aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis." The programs in Milwaukee, Cleveland, and Arizona add private schools to an existing array of public school programs. "Neutrality" is enhanced when public schools are among the options and/or the private school options are a part of broader education reform.

The program does not create an ongoing state presence in religiously affiliated schools. The state's regulations should be limited to those necessary to ensure that the program's educational mission is achieved. This may (but does not have to) include compliance reports, financial audits, nondiscrimination requirements, health and safety regulations, minimum education requirements, and/or testing. It should not include any state oversight of curriculum, personnel, or administration. Any program that creates extensive involvement by the state in the schools' internal affairs is likely to be found an unconstitutional "excessive entanglement."

4. Does it matter under the First Amendment how funds are transmitted to the schools?

It shouldn't. In its recent cases, the U.S. Supreme Court emphasized that so long as the program is neutral as between public and private schools and aid is triggered by the independent decisions of parents or students, it does not have the "primary effect" of advancing religion -- even if funds are directly transmitted to the schools and if religious education is included. The Milwaukee and Cleveland programs make checks payable to parents but send them to the designated school. However, the exclusion of religious schools from a "tuitioning" program in Maine was justified in part by the fact that checks were sent directly to the schools. Although those decisions conflict with U.S. Supreme Court rulings, it is wise to make checks payable to the parents who sign them over to their chosen school.

5. What is the effect of state constitutional provisions prohibiting the use of public funds in private or religious schools?

Many state constitutions contain prohibitions against the use of public funds to support or benefit religious schools or institutions. The language and interpretations of these provisions varies widely, and school choice advocates should review them carefully.

Although the language of these provisions often appears more restrictive than the First Amendment, in reality they frequently are not. For the First Amendment itself is interpreted as prohibiting "support" of religious schools, as contrasted with aid to students -- precisely the distinction drawn by many state constitutions.

The Wisconsin, Ohio and Arizona Supreme Courts all upheld school choice programs under state religious establishment provisions. In fact, the Arizona Supreme Court declared that such provisions should be construed in light of the anti-Catholic animus that inspired many of them (the so-called "Blaine amendments").

However, the Vermont Supreme Court, which upheld the reimbursement of religious school tuition under the First Amendment, five years later construed its state constitution more restrictively and invalidated religious school tuitioning.

School choice advocates should look to state court interpretations for guidance. Specifically, 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 construed more restrictively, school choice advocates will have to tailor their proposals accordingly, amend the state constitution, or challenge the provisions under the U.S. Constitution's free exercise and equal protection clauses.

6. Are school choice programs subject to attack on other state constitutional grounds?

School choice opponents will press into service any and all arguments they can find. In Wisconsin, for example, the plaintiffs initially challenged the Milwaukee Parental Choice Program on the grounds that it was a "local" bill enacted as part of the budget, that it failed to provide a constitutionally mandated "uniform" education, and that it contained inadequate regulations to ensure the program's public purpose would be fulfilled. The Wisconsin Supreme Court rejected the challenge on all grounds. Conversely, the Ohio Supreme Court struck down the Cleveland program because it was passed as part of the general budget in violation of the "single-subject" requirement.

Allegations regarding racial segregation are likely to be rejected as ludicrous.

7. Does the provision of public funds invariably open up private schools to extensive government regulation?

No, though choice proponents must maintain constant vigilance to make sure this does not happen.

Even absent public funds, the state permissibly may regulate private schools. Most if not all states already require private schools to comply with such requirements as health and safety, nondiscrimination, minimum days and hours, and standard courses.

Some school choice proposals contain explicit limitations on the regulations the state may impose, and where feasible this seems a wise approach. Indeed, such limits would give private schools protection they do not currently have against regulations.

Even where explicit limits do not exist, defenders of school choice can challenge regulations that exceed the bureaucracy's authority. In Wisconsin, private schools successfully challenged regulations imposed on them by the Superintendent of Public Instruction, even though the choice program does not contain explicit limits. The court reasoned that the choice program's purpose was to allow children to attend private schools, not to transform private schools into public schools.

The ultimate safeguard is the freedom of private schools to refuse to participate in choice programs if they deem restrictions too onerous.

8. Do public funds expose schools to federal regulations prohibiting discrimination on the basis of race, sex, or religion?

Private schools are already subject to the federal statute prohibiting discrimination on the basis of race in making contracts, 42 U.S.C. 1981, which the Supreme Court held applicable to private schools in Runyon v. McCrary. In addition, private schools must avoid racial discrimination in order to maintain tax-exempt status under the Internal Revenue Code. Receipt of public funds in a school choice program would likely have no additional effects on a private school's obligations with respect to race discrimination.

No federal statute prohibiting sex discrimination applies to the admissions practices of private elementary and secondary schools, including those receiving direct federal financial assistance. Nor do federal regulations appear to cover the activities of private schools that are not recipients of federal financial assistance.

Federal statutes imposing conditions on the receipt of public funds do not prohibit discrimination on the basis of religion, so absent provisions in state law or the choice program itself, the admissions criteria of religious schools participating in such programs should not be affected.

9. Does the receipt of public funds in school choice programs impose duties on private schools with respect to disabled children?

Possibly, but if so only to a limited extent. A threshold question would be whether private schools in a state-financed school choice program were subject to rules applicable to recipients of federal funds. Even if a court concluded that federal rules apply, the duties of private schools that do not operate special education programs would be limited to providing an appropriate education on a nondiscriminatory basis to disabled children who can participate in the private schools' regular programs with only minor adjustments. Where private schools operate special education programs, they can charge for increased costs associated with providing services to disabled children.

10. Are there any circumstances in which courts have awarded "voucher" remedies for educational deprivations?

Yes. Under the Individuals with Disabilities in Education Act, federal and state courts consistently have ruled that where public schools fail to provide disabled youngsters "appropriate" education, they must provide such opportunities in private schools.

11. How can school choice activists take steps to effectively defend their programs?

By building a legal strategy into legislation, school choice proponents can help insure that their success in the legislative arena will not be undone in the courts.

Once a school choice program involving private schools is enacted, litigation is certain. As in the legislative process, the opponents of choice will spare no expense to bring down the program. Leaving the program's defense to government lawyers is extremely risky. We strongly believe that school choice programs will not successfully be defended unless parents and children are present and effectively represented in the courtroom. A highly coordinated effort, not only in the courtroom but in the court of public opinion, will greatly enhance prospects for success.

At the Institute for Justice we are committed to helping school choice proponents develop legally sound programs, and to aggressively defending them against legal challenge. Please do not hesitate to call us for assistance.

Permission is granted to reprint these materials in full, provided attribution is made to the authors and to the Institute for Justice with its phone number, (202) 955-1300.




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