School Choice in the Courts

Published February 1, 2000

School choice issues increasingly are being fought in the courts, as parents seek better educational options for their children and as establishment forces seek to maintain the status quo.

For example, the Montgomery School Board in Maryland has asked the U.S. Supreme Court to hear a case involving the district’s transfer policy for a math and science magnet program, which was declared unconstitutional by the U.S. Court of Appeals for the Fourth District. The Arlington County School Board in Virginia plans to seek a U.S. Supreme Court review of another Fourth Circuit decision regarding a weighted lottery plan for a kindergarten magnet program, also declared unconstitutional.

The following is a summary of current court cases and recent rulings related to school choice.


Louisiana: Aid to Religious Schools

Is it a violation of the U.S. Constitution for the federal government to provide computers, software, and other instructional materials for use in religious schools, as is currently being done under Title IV of the Elementary and Secondary Education Act?

Two parents in Jefferson Parish, Louisiana, thought it was and sued the Jefferson Parish school system, the state, and the federal government. Last year, the U.S. Court of Appeals in New Orleans ruled that providing anything more than textbooks to religious schools was an unconstitutional subsidy for religious education.

On December 1, 1999, the U.S. Supreme Court heard oral arguments in the case, Mitchell v. Helms. The court’s decision is expected by July 1, 2000.

Maine: Excluding Religious Schools from Choice

On October 12, less than two weeks after declining to take up a challenge to the Arizona Supreme Court’s favorable ruling on that state’s private school tax credit law, the U.S. Supreme Court declined to review the decision of the Maine Supreme Court in Bagley v. Raymond School Department. In this case, the state court had ruled that Maine’s exclusion of religious schools from its school choice program was required by the First Amendment’s Establishment Clause.

The U.S. Supreme Court also declined to review a similar decision of the federal First Circuit Court of Appeals in Strout v. Albanese, which raised the same issue.

In Maine, where many towns or remote areas do not have high schools of their own, parents send their children to public schools or private schools with tuition paid by the state. A Maine law prohibits payment of tuition to “sectarian” schools.

New York: No Public School for Hasidim

Since 1989, New York State officials have attempted to create a public school district to serve the approximately 250 handicapped students living in Kiryas Joel, a village in Orange County, about 45 miles northwest of New York City.

On October 12, 1999, the U.S. Supreme Court declined to hear an appeal from the village on the state’s latest attempt, which New York State’s Supreme Court ruled “has the primary effect of advancing one religion over others and constitutes an impermissible religious accommodation.” State officials already have crafted modifications to the law, which is almost certain to be challenged again.

The 15,000 residents of the village are almost all Hasidic Jews who educate most of their children in private religious schools. Until the mid-1980s, handicapped children attended special education classes in the Monroe-Woodbury public schools, where their distinctive appearance subjected them to ridicule, according to village leaders. In 1989, the state legislature created a special public school district for the handicapped children, but that law and two that followed were ruled unconstitutional.

Texas: Student-Led Prayer at School Games

Is the U.S. Constitution violated when a student leads others in prayer before a public high school football game? On November 15, 1999, the U.S. Supreme Court agreed to review the question and hear an appeal from the Santa Fe Independent School District, near Galveston, Texas. The district is appealing a federal appeals court decision that barred the popular practice, ruling that pre-game prayers by students broadcast over the public address system violated the constitutional requirement for the separation of church and state.

The justices declined to hear another part of the appeal, which dealt with student-led prayers at graduation ceremonies.

Vermont: Excluding Religious Schools from Choice

On December 13, 1999, the U.S. Supreme Court declined to hear an appeal of a June 1999 ruling by the Vermont Supreme Court, which rejected a claim by Vermont parents that their federal free-exercise rights were being violated by the refusal of the state to include religious schools in the state’s “tuitioning” program. The state court held that school districts in the state could not make tuition payments to sectarian schools “in the absence of adequate safeguards against the use of such funds for religious worship.”

In Vermont, 88 of the state’s 290 school districts do not operate a public high school. For 130 years, the state has allowed students in those districts to attend a public or private high school with the tuition paid by the student’s home district. When some Chittenden parents asked the local school board to pay for their children to attend a Catholic high school, the local board agreed but the state Board of Education objected, precipitating the lawsuit Andrews v. Vermont Department of Education.


Illinois: Tuition Tax Credits

On December 7, 1999, Franklin County Circuit Court Judge Loren Lewis dismissed a lawsuit challenging the constitutionality of a new Illinois law that provides for an income tax credit for educational expenses incurred at public or private schools.

The law, which took effect on January 1, gives parents a 25 percent state income tax credit–up to a maximum of $500–for expenses in excess of $250 that they incur for their children’s tuition, books, and lab fees. According to Lewis, the U.S. Supreme Court had upheld a Minnesota law that was virtually identical to the Illinois law.

Another challenge to the same tax credit law is pending in Sangamon County, filed by a coalition of nine national and state organizations opposed to enhancing parental choice in education: the National Education Association, Illinois Education Association, People for the American Way Foundation, Americans United for Separation of Church and State, Illinois Congress of Parents and Teachers (PTA), Illinois Association of School Boards, Illinois Association of School Administrators, American Jewish Congress, and National Council of Jewish Women.

Florida: Opportunity Scholarships

On November 12, 1999, Judge L. Ralph Smith, Circuit Court Judge for Leon County, Florida, consolidated two lawsuits that challenge the constitutionality of the state’s new opportunity scholarship program.

The Court also denied an Institute for Justice motion to dismiss the plaintiffs’ claim that the program ran afoul of the state’s obligation to provide a high-quality system of free public schools. The Institute argued that this presented a nonjusticiable question properly reserved for the Florida Legislature, but Smith denied the motion without explanation.

The scholarship program permits students in failing public schools to transfer to non-failing public schools or to private schools, including religious schools.

Pennsylvania: District-Level Vouchers

On December 23, 1999, the Commonwealth Court of Pennsylvania upheld an October 1998 ruling by the Delaware County Court of Common Pleas that, under the states’s Public School Code of 1949, the Southeast Delco School District lacked the authority to institute a voucher program to partially reimburse the cost of tuition for parents whose children attended private schools or public schools in other districts.

The District had adopted the plan to promote parental choice, reduce overcrowded schools, and save taxpayer dollars by avoiding having to build additional schools for students who increasingly were transferring from non-district schools to district schools.

The ruling suggests that the state legislature needs only to modify the State School Code to give local school districts the authority to institute voucher programs like that proposed by Southeast Delco.

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