By: Chris Cargill
Across political, ethnic and racial divides, overwhelming majorities of Americans support education choice. Recent polling shows more than 70% support.
The results, too, show overwhelming success. More than 180 empirical studies indicate positive effects on everything from fiscal impact to parental satisfaction, test scores, civic values and more.
Roughly 60% of states now offer some form of an Education Savings Account (ESA), an education choice tax credit, or a tax credit scholarship. Each year, the list of participating states gets longer.
Unfortunately for students in the Mountain States, lawmakers have been more reluctant to add options. The arguments against choice here vary, but opponents – most often state teacher unions – launch legal roadblocks in every state. In Montana, for example, the teacher’s union has sued to block implementation of an ESA for special needs children. It has also attempted to block the creation of charter schools in the Treasure State.
Fearing expensive legal battles, policymakers who may be on the fence often err on the side of caution and vote against measures to expand choice, even though fewer and fewer legal battles are proving successful. Lawmakers must understand and expect any new program to face legal questions, especially when it is perceived to threaten special interest groups including unions. After all, the leaders of those groups are paid to protect their member interests.
The overarching question, however, is whether education choice is constitutional? In most states, the answer is yes, as we highlight in a new study.
In 2002, the U.S. Supreme Court eliminated the federal Establishment Clause as a barrier to education choice. Zelman v. Simmons-Harris allows the government to fund any school on a neutral basis, so long as the choice of a religious school is left voluntary. This has left opponents at the state level with just two potential courses to pursue roadblocks: the religious and education provisions recorded in state constitutions.
A “compelled support” clause exists in 29 state constitutions. It was originally intended to prevent an official state religion. Anti-Catholic Blaine Amendments can also be found in dozens of state constitutions – provisions the U.S. Supreme Court has labeled “shameful” and a “clear manifestation of religious bigotry.”
Every state constitution also has an education provision, with some containing language that calls for a “uniform system of free public education,” or something similar. Education choice opponents have argued that such language not only requires the government to establish traditional public schools, but also prevents the government from doing anything else. Uniformity Clauses, however, were never intended to be a ceiling or limitation on creativity. Instead, they were simply meant to ensure there was a floor.
The United States Supreme Court has issued several recent rulings that are instructive here. In Carson v. Makin, the court ruled on the constitutionality of the oldest school choice program in the United States. Town tuition programs in Maine and Vermont allowed towns that don’t have public schools to pay for a student’s tuition at an approved public or private school – including religious schools. When Maine moved to ban religious schools from participating, the case went to the Supreme Court and was overturned, with justices concluding it violated a parent’s First Amendment religious rights.
Espinoza v. Montana Department of Revenue from 2022 dealt with restrictions to Montana’s tax credit scholarship program. The Montana Department of Revenue prohibited recipients from using their scholarships at religious schools. But the U.S. Supreme Court ruled that “a state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
In 2011, the Supreme Court issued an opinion in Arizona Christian School Tuition Organization v. Winn. That case involving Arizona’s scholarship tax credit. The court ruled the plaintiffs had no standing to sue because tax credits involve personal income, not government money – a critical distinction that serves as an example for other states.
There are also dozens of state cases that provide a roadmap.
The West Virginia Supreme Court recently ruled in favor of the ESA’s and said: “We find that the West Virginia Constitution does not prohibit the Legislature from enacting the Hope Scholarship Act in addition to providing for a thorough and efficient system of free schools. The Constitution allows the Legislature to do both of these things.”
In Puerto Rico, the Free School Selection Program provided needy families scholarships so they could send children to the school of their choice – whether private or public. It prioritized students who were low income, disabled, adopted or in foster care. Teachers’ unions sued to stop the scholarships, claiming they violated Puerto Rico’s prohibition against using public money for private schools. But the Puerto Rico Supreme Court ruled against the suit, upholding the scholarship as it went to families, and not directly schools.
In Georgia, activists took aim at a program that provided scholarships for children to attend private schools, funded by voluntary donations from individuals and corporations. The court ruled those who brought the case had no standing because neither they, nor the state, were hurt by the tax credit.
The Arizona Court of Appeals held that the Corporate Tax Credit Scholarships program did not violate the federal Establishment Clause because (1) the program had a valid, secular purpose and maintained neutrality toward religion, (2) it allowed parents and students to freely choose from a range of secular and religious educational options and (3) the program did not result in excessive government entanglement with religion.
Arizona’s Supreme Court also held that the education article in the state’s constitution for a “general and uniform” public school system applies only to the obligation to fund a public school system that is adequate and defining adequacy is a legislative task.
A trial court ruled that Florida’s Corporate Tax Credit program did not negatively hurt public schools or state funding of K-12. Instead, the court credited the program as likely to improve the public school system as a whole.
Judges on the 5th Circuit Court of Appeals ruled that Louisiana’s special education program did not violate the Establishment Clause because the opportunity was secular and provided no incentive for parents to pick a specific religious institution.
The North Carolina Supreme Court upheld the state’s Opportunity Scholarships programs, ruling that public funds may be spent on all types of education, and the program did not create an alternate system of publicly funded private schools.
The Oklahoma Supreme Court held that the Lindsey Nicole Henry Scholarships program did not violate the Blaine Amendment of the Oklahoma Constitution because the program is neutral with respect to religion and the parent—not the government—decides where the child goes to school and the aid is for the student, not for the sectarian school.
The Wisconsin Supreme Court ruled the Milwaukee Parental Choice Program did not violate the state’s Compelled Support Clause or its Blaine Amendment, because students were not required to attend religious schools and any benefits to those schools are incidental.
The overwhelming consensus of cases at the federal and state level shows education choice programs are constitutional. The key is for policymakers to put the decisions in the hands of parents. Any benefits to religious institutions, then, would be the result of individual choices – not government action or taxpayer money. Parents may choose to use the assistance to fund a child’s schooling at a religious institution, but they are just as likely to choose a program that is secular.
Perhaps the simplest education choice solution is a refundable tax credit. Cases brought against tax credits have rarely had success because plaintiffs cannot show any personal injury, and they involve personal income – not government funds.
Article 9, §1 of the Idaho Constitution creates a duty to “establish and maintain a general, uniform and thorough system of public, free common schools.” But nothing in the state constitution prevents the legislature from supplementing that duty or requires parents to send their child to a government school. The constitution simply creates a baseline.
As the West Virginia Supreme Court recently ruled, the legislature can do “both of these things.”