School Choice & Charters

Voucher Advocates Plan a Multistate Legal Battle

By Mark Walsh — October 16, 2002 3 min read
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A legal group that played a key role in the U.S. Supreme Court case upholding private school vouchers is taking the stage for its second act.

The Institute for Justice, a libertarian and mostly conservative-leaning organization based in the nation’s capital, has already filed lawsuits in Maine and Washington state seeking to remove state constitutional roadblocks to school choice programs.

Last week, the institute’s lawyers held a press briefing here to outline a strategy for filing other school choice cases around the country. The ultimate goal: a return to the Supreme Court.

“The rule of law we are seeking to establish in these cases is that a state cannot discriminate against religious school options,” said Clint Bolick, a vice president of the institute who was the architect of a decade-long legal strategy that led to the high court’s ruling upholding vouchers under the U.S. Constitution. In its June decision in Zelman v. Simmons-Harris, the justices held that the inclusion of religious schools in the Cleveland voucher program was not an unconstitutional establishment of religion under the First Amendment.

Now the focus has shifted to the states, where new choice programs that would include religious schools potentially face state constitutional barriers. The institute says 37 states have so-called Blaine amendments in their state constitutions. These are provisions, named for 19th- century U.S. Rep. James G. Blaine of Maine, that prohibit government funds from going to religious sects or institutions. Most of these provisions were added after the failure by Congress to adopt such an amendment to the federal Constitution in the 1870s, a measure pushed by Rep. Blaine.

Richard D. Komer, a senior lawyer with the institute, said 29 states have so- called “compelled support” provisions in their constitutions, which tend to predate the Blaine era and provide that no one be compelled to attend or support a church without consent.

In the institute’s view, these state barriers should not prevent the inclusion of religious schools in any choice program. It argues that parents have several grounds under the U.S. Constitution for seeking to open choice programs to religious schools. These include the First Amendment’s guarantees of free speech and free exercise of religion and the 14th Amendment right to equal protection under the law.

Legal Footnote?

Only three states—Louisiana, Maine, and North Carolina—have neither Blaine nor compelled-support clauses, Mr. Komer said. California is not a likely target of its litigation because that state bars state funding of private education generally and not on religious grounds, Mr. Komer said.

The institute plans to file lawsuits challenging Blaine amendments and compelled-support provisions around the country. It will pick its battles carefully, the lawyers said, because it doesn’t have the resources to sue in every state, but it wants to litigate in enough places to create a conflict among the federal circuit courts. That would eventually lead back to the Supreme Court.

The institute recently sued Maine over the state’s refusal to open its tuitioning program to religious schools. In Washington, the institute filed a lawsuit attacking that state’s Blaine amendment on behalf of two education students who were denied the chance to meet their state student-teaching requirements at private religious schools. (“Latest Front for Fight on Choice: Washington State,” Oct. 2, 2002, and “Legal Battle Over School Vouchers Returns to Maine,” Sept. 25, 2002.)

The organization is also helping to defend Florida’s Opportunity Scholarship program, which provides vouchers to students from state-designated failing public schools, from a state constitutional challenge backed by the state’s teachers’ union.

The next lawsuit to be filed, probably later this month, will be in Vermont, where the institute will challenge that state’s reliance on its compelled-support clause to exclude religious schools from a tuitioning plan, Mr. Komer said. Tuitioning is a longtime practice in the state in which towns without their own high schools pay tuition for children to attend secular private schools or public schools in other towns.

Marc Egan, an anti-voucher strategist for the National School Boards Association, said the institute’s new litigation program may well end up as a mere footnote in the school choice debate.

“The constitutional issue is not the big issue anymore when it comes to vouchers,” said Mr. Egan, who is director of the NSBA’s Voucher Strategy Center. “Ultimately, it is up to the voters and elected officials to decide whether voucher programs are going to be enacted.”

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