Litigation Is the Price We Pay for Our Success

Published December 1, 1997

Although several school choice options have been approved in states across the country, almost all have been subjected to vigorous court challenges. Choice advocates should view those challenges not as a reason for despair and inaction, but as the inevitable price of success, writes a constitutional law expert in a new study from The Heritage Foundation.

In “School Choice, the Law, and the Constitution: A Primer for Parents and Reformers,” attorney Clint Bolick examines a wide range of school choice options, summarizes the Supreme Court’s choice-related rulings, offers rules of thumb for drafting school choice proposals, and warns against hazards built into state constitutions. Bolick is vice president and litigation director for the Washington, DC-based Institute for Justice.

“As school choice victories multiply in the state legislatures, opponents of choice are forced to resort to the judicial arena,” says Bolick. Every school choice victory has two components: its initial success in the legislature or at the ballot box, followed by final vindication in the courtroom.

It appears likely, notes Bolick, that the U.S. Supreme Court will hand down a strong decision upholding school choice before the millennium. Although the Court prohibits programs that favor religious schools and subsidies that go directly to religious institutions, it has consistently ruled that “programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate” the First Amendment.

At the state level, each state’s constitution and constitutional jurisprudence are different, concedes Bolick. He advises choice advocates to examine their state constitutions for religious establishment provisions, and to understand how those provisions have been interpreted by state courts. Also, Bolick warns, the exact wording of the state’s education clause and other legislative provisions may be turned against choice legislation in the hands of determined opponents.

Bolick reminds choice advocates that the potential rewards for enduring two or more years of litigation and uncertainty are breathtaking. “No other reform promises to have such a constructive impact on children’s lives or fulfill our country’s sacred promise of equal educational opportunities.”