Fighting for School Choice in the Courts

Published July 1, 2004

Having traveled across the country for more than a decade to defend state-based and city-based school choice programs, the Institute for Justice (IJ) expects soon to be defending choice legislation in its home town of Washington, DC: the recently approved D.C. School Choice Incentive Act.

The public interest law firm is currently assisting the Washington Scholarship Fund and D.C. Parents for School Choice in implementing the new program, scheduled to take effect when school starts later this year.

As well as supporting school choice implementation work in Washington, IJ’s attorneys also are supporting efforts on behalf of proposed school choice legislation in Kansas, Missouri, New Hampshire, South Carolina, Texas, and Utah. Those efforts involve legal analysis, advice on working with the media, and public testimony.

“The school choice movement continues to make vital progress,” noted IJ President William “Chip” Mellor, “though our adversaries remain relentless in their opposition.”

IJ’s attorneys come face-to-face with those adversaries as they defend the following school choice programs in court on behalf of students and parents in Arizona, Colorado, and Florida.

Scholarship Tax Credits in Arizona
More than five years after the Arizona Supreme Court upheld the constitutionality of the state’s 1997 scholarship tax credit law in state court, the American Civil Liberties Union is making a second attack on the law, this time in federal court on First Amendment grounds. The district court dismissed the lawsuit and the Ninth U.S. Circuit Court of Appeals overturned the district court ruling. The U.S. Supreme Court was expected to issue a decision in June but had not done so when this newspaper went to press.

Opportunity Contract Program in Colorado
Approved last year, Colorado’s Opportunity Contract Program was quickly challenged by the teacher unions and their allies on six points of law, just two of which were addressed by the trial court last December. The court ruled the program does not constitute special legislation but does violate the local control provision of Colorado’s constitution because educating children in private schools interferes with the district school board’s control of instruction.

When the trial court judge also barred the state from implementing the program, IJ and the state quickly appealed to the Colorado Supreme Court, which granted expedited review. During the oral arguments on May 25, attorneys for Colorado Governor Bill Owens (R) argued lawmakers should have the power to try innovative educational programs so long as the programs do not substantially impair the authority of local districts to educate most of their students. The attorney for the plaintiffs argued school districts should not be required to fund schools they do not control.

Even if the Colorado Supreme Court upholds the program on the two points at issue, opponents of the program have said they will return to trial court to argue the remaining four points.

Opportunity Scholarships Program in Florida
The challenge by the teacher unions and their allies to Florida’s Opportunity Scholarships Program is based on the state’s Blaine Amendment, which in general bars the use of public funds by religious schools. Florida’s First District Court of Appeal heard oral arguments on the case more than a year ago, in March 2003.

While a decision is awaited from the appellate court, IJ’s Mellor points out “choice in Florida flourishes,” with nearly 25,000 students exercising choice statewide. Only about 600 students receive Opportunity Scholarships, but another 12,000 receive McKay Scholarships for children with disabilities, and yet another 12,000 receive scholarships funded through corporate income tax credits.

While few students participate, the Opportunity Scholarships Program is prompting statewide improvements in Florida’s public schools, according to analyses conducted by Manhattan Institute researchers Jay P. Greene and Marcus A. Winters. (See “Students Benefit When Schools Compete,” School Reform News, November 2003.)

In addition, the Pensacola News-Journal reported in December 2003, “On average, the 34 students attending Escambia County Catholic schools on state-funded Opportunity Scholarships have jumped more than one grade level for each year they’ve attended, and many are working beyond their grade level now.”

George A. Clowes is managing editor of School Reform News. His email address is [email protected].

For more information …

In “Competition Passes the Test,” Manhattan Institute researchers Jay P. Greene and Marcus A. Winters report their latest analysis of Florida’s Opportunity Scholarships in the current issue of Education Next at

A November 2003 School Reform News article, “Students Benefit When Schools Compete,” provides links to an earlier study of the A+ Program by Greene and Winters: