IJ Launches School Choice Offensive

Published December 1, 2002

After the U.S. Supreme Court awarded control of the constitutional battlefield to voucher advocates on June 27, the Institute for Justice didn’t waste time celebrating the victory.

Instead, the Institute quickly redeployed resources from defense to offense in order to take advantage of the commanding position school choice forces had gained with the Court ruling. In September, the Institute launched its offensive by challenging state constitutional provisions that limit school choice options in Maine and Washington.

“This summer’s victory for school choice in the U.S. Supreme Court was only the first step in expanding educational opportunities for children who desperately need them,” declared Clint Bolick, the Institute’s vice president. “Now we need to take on state constitutions that require discrimination against religious school options.”

For the past 12 years, the Institute has successfully defended school choice programs across the nation, including the voucher programs in Cleveland and Milwaukee and tax credit programs in Arizona and Illinois. It is currently defending Florida’s Opportunity Scholarship program in court.

Some 37 states have provisions in their constitutions that forbid public support of sectarian institutions. These provisions–called “Blaine Amendments”–date to the late nineteenth century, when religious bigots actively campaigned to prevent public funds from flowing to support Catholic schools in the same way public funds flowed to support the Protestant-instilled public schools. At that time, Catholic schools were viewed by the majority as “sectarian” while the Protestant public schools were not.

Since vouchers and tax credits are aid to students and not to schools, Blaine Amendments do not pose a problem in states where they have been interpreted narrowly as simply barring aid to religious schools. However, other states, including Washington, interpret their provisions broadly and exclude not only religious schools but also their students from public benefits otherwise made available to state citizens. The Institute points out these broad interpretations could block the implementation of school choice programs that have religious options unless the interpretations are challenged and ruled to be inconsistent with the U.S. Constitution.

Discrimination Challenged in Washington

The Institute for Justice filed a lawsuit on September 24 in Thurston County Superior Court challenging a Washington state policy that requires state programs to discriminate against religious schools and students. In particular, the policy bars students in public universities–like plaintiffs Donnell Penhallurick and Carolyn Harrison–from satisfying their student teaching requirements at a religious school. The suit was filed in Superior Court to give the state courts an opportunity to reconcile the conflict in interpretation between the state and U.S. constitutions.

Penhallurick, a devout Seventh Day Adventist, wants to complete his teacher certification at Eastern Washington University by student teaching at a Seventh Day Adventist school, but he is barred from doing so and must complete the requirements at a public school. Similarly, Harrison, a teacher at a Jesuit school in Tacoma, wants to complete her administrative credential from the University of Washington the same way most teachers do, by performing a required internship at the school where they already work. But the state doesn’t permit that option if the school is religious, and so she must leave her job every other day to intern at a public school.

“The student-teacher rules are absurd, discriminatory, and unconstitutional,” declared Bolick. “The U.S. Constitution does not permit discrimination either in favor of or against religion.”

In fact, on First Amendment grounds, the U.S. Supreme Court ruled 9-0 in 1989 that a blind college student in Washington State could use his student aid to study for the ministry at a religious school. But when that case was remanded to the state court system, the Washington Supreme Court ruled the state constitution bars using public funds in this way. This latter ruling has been used to forbid students in Washington’s public universities from doing their student teaching in religious schools.

Religious Options Barred in Maine

Earlier in September, the Institute had filed its first state challenge by asking a Maine court to overturn a 1981 law that bars religious schools from participating in the state’s nearly 100-year-old school choice “tuitioning” program. Rather than support their own high schools, the school districts in many of Maine’s small towns pay for students to attend the school of their choice: public or private, in-state or out-of-state, and–until 20 years ago–religious or secular.

“Maine offers school choice to everyone except those who choose religious schools,” said Richard Komer, senior attorney with the Institute for Justice and lead counsel for the litigation. “Under the Constitution, that’s religious discrimination, and we intend to restore our clients’ religious liberty.”

The Institute represents six families from three small towns in the Maine-Durham, Minot, and Raymond school districts. Among them are Kevin and Julia Anderson of Durham, who were dissatisfied with public schools for their son David and wanted a school that reflected the values of the family’s Seventh Day Adventist religion. Pine Tree Academy in Freeport, Maine met their criteria, but they must pay the tuition at their own expense since the religious school is excluded from the state’s tuitioning program.

“We feel discriminated against by our town and our state,” said Kevin and Julia. “If everyone else has the freedom to choose a school, why is this right denied us just on the basis of religion? Our school is a good school, accredited by the State of Maine, yet the State says we aren’t allowed to select it through the tuitioning program.”

The Institute brought a similar suit, Bagley v. Town of Raymond, in 1997. (See “Maine Families Challenge Exclusion of Religious Schools,” School Reform News, October 1997.) In this earlier case, the Maine Supreme Court upheld the law, which excluded religious options from the choice program. (See “Maine: Excluding Religious Schools from Choice,” School Reform News, February 2000.) However, the Court admitted the State’s only justification for the exclusion was the Establishment Clause of the U.S. Constitution. This is the focus of the new lawsuit.

“The U.S. Supreme Court has said that we were right the first time, and we’re unquestionably right now: The Constitution in no way justifies discriminating against parents who freely choose religious schools for their children,” said Komer. “The State of Maine, which persists in denying our clients’ educational choices, clearly has no legal leg to stand on.”

George A. Clowes is managing editor of School Reform News.

For more information …

Updates on Institute for Justice court action on school choice cases in Arizona, Florida, Maine, and Washington are available at the Institute’s Web site at http://www.ij.com.

In addition, the Institute’s Richard Komer has prepared a paper detailing “Answers to Frequently Asked Questions About State Constitutions’ Religion Clauses.” This paper is available at www.ij.org/cases/school/blaine.shtml.