School Choice Challenges

Dissatisfaction with public school education has led many states to pass laws that facilitate school choice. Options include charter schools, scholarship and tuition tax benefits, and publicly funded education savings accounts. Each of these programs must comply with applicable federal and state constitutional provisions.

The First Amendment to the U.S. Constitution prohibits government establishment of religion and protects the free exercise of religion. Thirty-seven state constitutions contain more restrictive provisions that, using various language, prohibit or limit the use of public money to aid private and/or sectarian schools.


Charter Schools
Publicly funded but privately operated charter schools do not violate the establishment clause as long as they do not teach religious doctrine and are not run by religious organizations. They may, however, run afoul of state constitutional provisions. In 2015, the Washington Supreme Court cited a school tax funding limitation in the state constitution to invalidate the state’s Charter School Act. The Legislature is working to provide alternative funding, but the case illustrates that school choice options affect public school budgets.

The U.S. Supreme Court held in Zelman v. Simmons-Harris that publicly funded voucher scholarship programs that pay private school tuition do not violate the establishment clause if they serve a public purpose, are neutral to religion, and if parents, not the government, make final voucher-use decisions. Various state constitutions, however, may prohibit publicly funded private school scholarships. The Colorado Supreme Court recently struck down a scholarship program based on the state’s constitutional prohibition against the use of public funds “in aid” of sectarian schools. Now the State Board of Education wants the U.S. Supreme Court to declare this interpretation of Colorado’s constitution unconstitutional. The state board argues that a scholarship program that discriminates against religious schools violates the free exercise clause.

Prior to Justice Scalia’s death, the U.S. Supreme Court agreed to hear a similar argument brought by a religious school in Missouri that was denied state funds for playground improvements. These cases call into question Locke v. Davis, a 2004 U.S. Supreme Court decision that upheld the right of states to deny public scholarship money to college-level devotional theology (ministry) students. Scalia wrote a strong dissent in Locke and would have voted in favor of equal treatment for religious schools. His death makes it impossible to predict the outcome of these cases.

Tax Breaks
Tuition and scholarship tax credits and deductions granted to private school parents and benefactors steer funds away from public coffers but are not prohibited by the establishment clause if they meet the Zelman standard. The Missouri playground case also may determine whether states that exclude religious schools from these tax breaks violate the free exercise clause. Whether private school tax benefits violate state law depends on the state. An Alabama school tax credit was upheld by its state supreme court; litigation regarding a similar Montana law is pending.

Education Savings Accounts
Some states, like Nevada, are combining favorable tax laws with other school choice funding programs. As discussed in Kevin Clarke’s blog post on America Media’s website, “Nevada School Choice Program Threatened by ‘Little Blaine’ Amendment,” the Legislature recently created a state-funded savings account program available to all children taken out of public schools. Nevada’s program is unique in that it is not restricted to low-income households or children in low-performing schools and the funds may be used for a broad range of educational purposes, including online learning, tutoring and therapy. Savings accounts give parents far more choice and the public far less say in how state money is spent. Nevada’s claim that parentally controlled savings accounts avoid the state constitution’s prohibition against public funding of private schools also is being litigated.

The U.S. Supreme Court is the ultimate arbiter of these cases. The court operates best when it is at full strength, as tied 4-to-4 decisions leave lower court rulings in place.

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