In the past year, five state supreme courts and one federal appeals court have spoken on school choice measures that include vouchers and tax credits for religious school students.
The message they have sent, though, is far from clear.
“All in all, we’re pleased with the legal terrain after the first five states have been heard from,” said Clint Bolick, the vice president of the Institute for Justice, a Washington organization that has actively defended religious school vouchers or tax credits in all five states. “At the end of the day, there is no insurmountable obstacle to school choice.”
But Steven K. Green, the legal director of Americans United for Separation of Church and State, a Washington group that has actively opposed vouchers in several of the cases, views the legal lay of the land differently.
“I think we on the anti-voucher side are ahead,” he said initially. But after further reflection, Mr. Green said the high-stakes legal battle over private school vouchers has probably reached “a draw, more or less.”
“It is inevitable that the U.S. Supreme Court is going to have to rule on this issue,” he added.
The disagreement is understandable, given the complexity of the legal issues involved in the various school choice cases.
Big-City Programs
On the pro-voucher side, the Wisconsin Supreme Court ruled a year ago that the pioneering voucher program in Milwaukee did not violate the federal or state constitution by including religious schools.
The Ohio Supreme Court last month reached a similar conclusion, although it invalidated the Cleveland voucher program based on a technical violation of the state constitution that had to do with the way the program was enacted.
And the Arizona Supreme Court upheld under the federal and state constitutions a state tax credit that encourages residents to contribute to private voucher programs that help send children to private and religious schools.
All three of those courts said the case law of the U.S. Supreme Court had fundamentally shifted since the early 1980s to allow neutral, indirect government aid that would benefit religious schools only through the private choices of parents.
On the other side of the ledger, the supreme courts of Vermont and Maine, as well as a federal appellate court in a separate Maine case, have refused over the past two months to allow or require local communities to reimburse parents who send their children to religious schools.
All three cases revolve around those states’ long-standing practice known as “tuitioning,” in which towns without their own high schools pay to send students to public high schools in nearby towns or to nonreligious private schools.
Vt. Plan Rejected
The most recent of the New England decisions came this month, when the Vermont Supreme Court ruled that the town of Chittenden could not use its tuitioning program to reimburse parents who sent their children to a Roman Catholic high school.
Ruling unanimously, the court said the inclusion of religious schools would violate the state constitution’s prohibition against compelled support for religion.
“The major deficiency in the tuition-payment system is that there are no restrictions that prevent the use of public money to fund religious education,” the court said in its June 11 decision.
The Vermont court was alone in deciding a school choice case purely on state constitutional grounds. All the other recent voucher-related cases have involved both federal and state constitutional issues. But as the Vermont court put it, “the federal [case] law has become less clear.”
Nevertheless, the U.S. Court of Appeals for the 1st Circuit, based in Boston, last month pointedly rejected arguments that the U.S. Supreme Court had moved toward approval of government support for religious schools in the form of vouchers.
“The Supreme Court has never permitted broad sponsorship of religious schools,” the appeals panel said. “Approving direct payments of tuition by the state to sectarian schools represents a quantum leap that we are unwilling to take.”
The federal appellate ruling and the Maine Supreme Judicial Court’s April 23 ruling that also refused to extend tuitioning to religious schools are likely to be appealed to the U.S. Supreme Court, voucher supporters say.
But some legal experts doubt that the Maine cases would make for a suitable high court showdown over vouchers. Mr. Green of Americans United noted that they deal with somewhat quirky versions of vouchers that have been practiced in Maine and Vermont for decades, rather than the new kinds of school choice being tested today in the form of vouchers for low-income students and tuition tax credits.
Small Steps
The Arizona Supreme Court’s January ruling upholding that state’s $500 income-tax credit for contributions to private-school-tuition organizations has been appealed to the U.S. Supreme Court. Although that case provides the justices with their next major opportunity to consider a school choice issue, they likely won’t decide whether to take the case until their next term begins in the fall.
Voucher advocates are eager to get any school choice case before the Supreme Court. Even though Mr. Bolick’s group won in the Arizona high court, he is asking the U.S. Supreme Court to hear the appeal backed by voucher opponents, including the major teachers’ unions.
Voucher supporters will also watch with interest a case the Supreme Court decided last week to accept for review in its next term. In Mitchell v. Helms, the court will decide the constitutionality of a federal program that authorizes school districts to lend computers and supplemental educational materials to religious schools.
Some legal analysts say the high court’s ruling could have an impact on the voucher debate, although that is not guaranteed.
“I think this is an area where the court has been in a mood to go one step at a time,” said Eugene Volokh, a law professor at the University of California, Los Angeles, and an advocate of religious school vouchers.
Mr. Green of Americans United said the high court passed up one of its best chances to tackle the voucher issue when it declined last fall to review the Wisconsin Supreme Court’s ruling in the Milwaukee voucher case.
“The court missed the opportunity there,” he said. “The Arizona case doesn’t present the voucher issue directly.”
Frank Kemerer, a professor of educational law at the University of North Texas in Denton, speculated that the justices are letting lower courts grapple with the voucher issue and may not view it as ripe for their consideration for another two years or so.
More To Come
The cloudy legal outlook did not dissuade legislators in Florida, Illinois, Pennsylvania, and Texas from serious consideration of school choice measures this spring.
“Looking at the decisions so far, the bottom line looks favorable to vouchers,” Mr. Kemerer said. “I don’t think there is any question we will see a dramatic expansion of voucher-like programs.”
While a proposed voucher program did not make it out of the Texas legislature, Illinois lawmakers approved a $500 tax credit for education expenses, including private school tuition. In Pennsylvania, Republican Gov. Tom Ridge and legislative leaders last week were hammering out a bill that would authorize vouchers for students in academically troubled schools.
Florida, meanwhile, has enacted the nation’s first statewide voucher program. Targeted at low-performing schools, the program is likely to get off the ground in the fall.
Voucher foes, including Americans United for Separation of Church and State, are already preparing a challenge to the Florida program. So the next round in the legal battle is almost set.
“That’s the case to watch,” Mr. Green said.
