11/1997 Parents’ Choice: Information for advocates of educational freedom

Published November 1, 1997

Choice in the Courts

While one school choice lawsuit reached a successful conclusion earlier this year, with the favorable June 23 U.S. Supreme Court ruling on New York City’s implementation of Title I, five other important cases are moving through the court systems of Arizona, Maine, Ohio, Vermont, and Wisconsin. The state-level school choice cases that are likely to be heard by O’Connor and her colleagues are summarized below. The Institute for Justice, based in Washington, DC, is arguing the choice side in all five cases.

In the Title I case, Justice Sandra Day O’Connor ruled that aid to parochial schools is permissible if it 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 non-discriminatory basis.”


Having failed to gather enough signatures to force a voter referendum on Arizona’s innovative school choice tax credit program, the Arizona Education Association filed suit on September 30 seeking an injunction to stop the program, which goes into effect on January 1, 1998. The disputed measure provides tax credit of up to $500 for donations to private organizations that fund scholarships for needy students.

The Institute for Justice filed court papers in early October on behalf of economically disadvantaged families who would benefit from the scholarship programs, as well as Arizona taxpayers who plan to contribute.


The Cleveland School Choice program, which started in 1996, is the nation’s first voucher program to allow poor parents to send their children to religious schools. Opponents attacked the religious school vouchers as a violation of the First Amendment’s Establishment Clause. Franklin County Court Judge Lisa L. Sadler disagreed, and upheld the plan as constitutional in 1996.

However, on May 1, the program was ruled unconstitutional by the Ohio District Court of Appeals, which ruled that using the vouchers at religious schools was an unconstitutional mingling of church and state. The court ruled 3-0 that the scholarship plan advanced religion by providing “direct and substantial non-neutral government aid to sectarian schools.”

Despite the unfavorable ruling, Ohio legislators subsequently approved $15 million to fund a two-year expansion of the program, and on July 24, the Ohio Supreme Court ruled that the program could continue operating for another year while the Court reviews the appeals court ruling.


Maine parents who live in towns without public high schools have more effective school choice than do parents who live in towns with public high schools. That paradox is made possible through the state’s “tuitioning” program, where parents may choose any public or private school for their children, in-state and out-of-state, with the town paying the tuition. From 1903 to 1983, parents were permitted to choose a religious school for their child. Since 1983, Maine state law has specifically prohibited towns from paying tuition to any school that is “sectarian.”

In July, four families asked the Town of Raymond to tuition their sons to Cheverus High School, but their request was denied because Cheverus is a religious school. In response, the families sued, alleging that the Town’s action, and Maine’s law prohibiting parents from selecting a religious school for their children, violate the U.S. Constitution’s guarantee of free exercise of religion and equal protection of the laws.


In 1995, when the Wisconsin Legislature voted to expand Milwaukee’s five-year old school voucher program to allow religious school participation, opponents sued. In January, Dane County Circuit Court Judge Paul Higginbotham found the participation of religious schools unconstitutional, based on his reading of both the state and federal constitutions. On June 22, the Fourth District Court of Appeals of Madison heard oral arguments from supporters and opponents of expanding the Milwaukee Parental Choice Program.

On August 8, Judge Higginbotham released the remainder of his formal decision, ruling that a proposal to increase the number of students served by the Parental Choice Program violates state constitutional prohibitions. He did, however, permit those children who were already in the program could stay in it.

On August 22, in a 2-1 decision, the Fourth District Court of Appeals upheld Higginbotham’s decision, ruling that expanding school choice to religious schools in Milwaukee violates the constitutional separation of church and state. In a dissenting opinion, Appeals Court Judge Pat Roggensack argued the expansion was lawful because assistance was offered to poor families without reference to religion. The decision has been appealed to the Wisconsin Supreme Court.


Vermont, like Maine, practices “tuitioning” when communities have no high school, paying tuition for children to attend public or non-sectarian private high schools in other communities. Religious high schools were included in Vermont’s tuitioning program until 1961, when the state supreme court ruled that tuition payments to religious schools violated the U.S. Constitution’s prohibition against government establishment of religion.

In May 1996, the school board in Chittenden voted to pay tuition for children to attend Mount St. Joseph Academy. The Vermont Education Department responded by threatening to withhold general state education aid to the town. The Chittenden school board sued the state, seeking to bar the Education Department from denying state aid and asking for a ruling from the state court on the constitutionality of paying tuition for students at private religious schools.

On June 27, Rutland Superior Court Judge Alden T. Bryan ruled that it would be unconstitutional to spend public tax money to send any of the town’s students to a parochial school. The ruling has been appealed and could be argued before the Vermont Supreme Court before the end of this year.