School Choice in the Courts

Published March 1, 1999

Because of its commitment to defend parental choice programs whenever they come under attack, the Washington, DC-based Institute for Justice has picked up the gauntlet for parents in five educational choice cases across the country. Although the nonprofit advocacy organization plays defense against attacks on new choice programs, it also goes on the offensive where existing choice legislation discriminates against parents who choose religious schools.

On the Attack . . .


For more than a century, the State of Vermont has provided school choice to children who live in rural school districts without their own public schools. The children are allowed to attend public schools in other districts or to attend private schools, with tuition at the choice school paid by the state.

When the Chittenden Town School District added religious schools to the available options in 1996, the state Department of Education refused to support such an expansion on the grounds that assisting religious schools would be a violation of the First Amendment. Representing the Chittenden school district, the Institute for Justice filed a lawsuit against the state, arguing that the First Amendment does not forbid tuition assistance to parents who select a religious school for their children.

The state trial court ruled against the district, and the case, Chittenden Town School District v. Vermont Department of Education, has been argued in the Vermont Supreme Court.


Like Vermont, Maine pays the tuition at private or public schools chosen by children in rural school districts without public schools. Maine’s law, however, expressly excludes religious schools from the program.

The Institute for Justice filed suit in state court on behalf of families who were denied state payment of tuition at religious schools attended by their children. The Institute argued that excluding religious schools from the program was discrimination, in violation of the First Amendment’s guarantee of free exercise of religion and the 14th Amendment’s guarantee of equal protection.

The state trial court ruled in favor of the state. The case, Bagley v. Raymond School Department, has been argued before the Maine Supreme Court.

Defending New Choice Legislation . . .


The Cleveland scholarship program offers low-income youngsters the opportunity to attend a participating religious or nonsectarian private school with scholarships of up to $2,250, covering up to 90 percent of tuition. In this case, Gatton v. Goff, the Institute for Justice represents Hope for Cleveland’s Children and individual families as intervenors/defendants in defense of the scholarship program.

The program was challenged on a variety of state and federal constitutional grounds, including religious establishment, by the National Education Association, the American Federation of Teachers, the American Civil Liberties Union, People for the American Way, Americans United for Separation of Church and State, and others.

In 1996, a state trial court upheld the program, and it has been in operation since then. Approximately 3,000 children are enrolled in the program this school year. On appeal, the program was struck down by the appeals court, but the Ohio Supreme Court stayed that decision pending its final ruling. The case was argued and is pending before the Ohio Supreme Court.

Southeast Delco, Pennsylvania

In an effort to avoid expenditures related to a growing public school population and to provide parental choice, the Southeast Delco School District in March 1998 approved a local choice program that provided tax benefits for families who send their children to private schools or public schools in other districts, thus relieving the district of the expense of educating them at the public schools.

This innovative exercise of local control was challenged by the teacher union and others, who alleged violations of the state constitution and statutes but did not raise federal constitutional issues. In this case, Giacommuci v. Southeast Delco School District, the Institute for Justice represents the school district.

The state trial court ruled against the school district, holding that the program exceeds the district’s statutory powers. The case has been appealed to the state court of appeals.

Game Over


In this case, Jackson v. Benson, the Institute for Justice represented Parents for School Choice and individual families as intervenors/defendants in defense of the Milwaukee Parental Choice Program. That program allows low-income youngsters who wish to be educated at a nongovernment school to use a share of their public school funds as full payment of tuition in participating private religious or nonsectarian schools.

The program was challenged by the teacher union, the American Civil Liberties Union, the National Association for the Advancement of Colored People, People for the American Way, Americans United for Separation of Church and State, and others. The lawsuit charged violations of the First Amendment and the Wisconsin Constitution.

In June 1998, the Wisconsin Supreme Court upheld the program against all challenges, and lifted an injunction against the program’s expansion. In fall 1998, approximately 6,000 children were enrolled in the program. In November 1998, the U.S. Supreme Court declined to review the decision.

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