School Choice Litigation

Published April 1, 2004

The Institute for Justice (IJ) has been kept busy defending newly enacted school choice programs ever since Clint Bolick and Chip Mellor formed the Washington, DC-based public interest law firm in 1991. It is currently involved in three such cases. However, IJ also is playing offense in two other cases as a result of a proactive litigation strategy aimed at removing state-based barriers that opponents invoke to tie up school choice programs in the courts.

In addition to litigating these five school choice cases, IJ also participated in the Davey v. Locke case as a friend of the court. The status of the cases is summarized below, using information provided by Bolick and Mellor.


Scholarship Tax Credit (Arizona)
Venue: U.S. Supreme Court

The lawsuit in this case, Winn v. Hobbs, is a new version of Kotterman v. Killian, where the Arizona Supreme Court upheld the state’s Scholarship Tax Credit under the First Amendment and the state constitution. In the new lawsuit, the American Civil Liberties Union attacked the same program on First Amendment grounds, but in federal court rather than state court. IJ has intervened on behalf of the program’s beneficiaries, as it did in Kotterman.

The federal district court dismissed the lawsuit under the federal Tax Injunction Act, which requires challenges to taxes to be filed in state court. The Ninth U.S. Circuit Court of Appeals overturned that ruling, and the U.S. Supreme Court accepted review. A decision is expected no later than June 2004.

If the Court overturns the Ninth Circuit’s decision, the case will be over. If it sustains the Ninth Circuit, the case will return to the district court for trial on the merits.

Opportunity Scholarships (Florida)
Venue: District Court of Appeals for the First District, State of Florida

In this case, Holmes v. Bush, IJ represents parents who have intervened to help defend Florida’s Opportunity Scholarships Program. The program gives parents in failing public schools the choice of staying in their assigned school, transferring to a non-failing public school, or switching to a private school.

In 1999, teacher unions and other special interest groups challenged Opportunity Scholarships under both the state and federal constitutions. The federal Establishment Clause challenge was dropped after the U.S. Supreme Court upheld Cleveland’s choice program in Zelman v. Simmons-Harris in 2002. The sole remaining legal issue is whether Florida’s Blaine Amendment prevents the state from allowing parents to select a religious private school with their children’s scholarships.

Just before the start of the 2002 school year, the trial court struck down the program under the Blaine Amendment. The state and IJ have appealed that ruling to the Florida Court of Appeals, and the program is continuing during the appeal.

This case was argued in March 2003 and still is awaiting a decision.

Opportunity Contract Program (Colorado)
Venue: Denver District Court

In this case, Colorado Association of Parents, Teachers and Students v. Owens, IJ represents families who hope to obtain scholarships under Colorado’s Opportunity Contract program. This new school choice program enables parents of students in 11 Colorado school districts with at least eight failing schools each to transfer their children to participating private schools.

Because parents can select religious schools, the plaintiffs claim the program violates Colorado’s Blaine Amendment and “compelled support” clause. Plaintiffs also allege the program violates Colorado’s constitutional prohibitions against special legislation and interfering with local control.

Choice opponents challenged the program first on the non-religious claims. The trial court ruled in December 2003 that although the program does not constitute special legislation, it does violate the local control provision, unconstitutionally removing too much authority for local schooling from district school boards. The trial judge enjoined the state from further action to implement Opportunity Contracts.

IJ has appealed the decision to the Colorado Supreme Court, contending the decision is contrary to state court approval of a long line of legislative initiatives designed to equalize educational opportunity in Colorado–charter schools, public school choice, magnet schools, and special education programs–without fear that they impair the authority of local school districts.


Tuitioning System (Maine)
Venue: Cumberland County Superior Court, State of Maine

This lawsuit, Anderson v. Town of Durham, challenges Maine’s exclusion of the choice of religious schools under Maine’s tuitioning system, which allows parents residing in towns without public schools to choose a private school or a public school operated by some other school district for their children’s education. The town school districts then pay tuition to the selected schools on behalf of the students.

For more than a century parents could choose a religious school, but in 1981 the Maine legislature excluded religious schools in the mistaken belief the Establishment Clause requires exclusion. Despite the U.S. Supreme Court’s recent ruling in Zelman that religious schools do not have to be excluded, Maine has refused to add the religious option back into the program. IJ represents families in tuitioning towns who have been denied tuition payments because they chose to send their children to religious schools.

This case is in discovery in trial court.

Tuitioning System (Vermont)
Venue: U.S. District Court for Vermont

Similar to the Maine case, this lawsuit, Genier v. McNulty, challenges Vermont’s refusal to pay tuition to religious schools selected by families in Vermont tuitioning towns. Many school districts in Vermont do not operate their own public high schools and instead pay tuition to schools selected by their students’ parents. While the statute does not exclude the option of selecting religious schools, in 1961 the Vermont Supreme Court held the federal Establishment Clause required their exclusion.

In 1999, that Court held that although it was now clear the Establishment Clause does not require the exclusion of religious schools, the Vermont constitution’s “compelled support” clause does. IJ represents families in tuitioning towns challenging this holding in federal court, on the basis that it violates the federal Free Exercise of Religion Clause as well as the Free Speech Clause and the Equal Protection Clause.

This case is in discovery at the trial court level.


Promise Scholarship Program (Washington)
Venue: U.S. Supreme Court

IJ filed an amicus curiae brief in the Locke v. Davey case, which was decided on February 25, 2004 in favor of Washington State. (See “Davey Ruling Leaves Vouchers in Play,” page 1.)

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