Over the past 25 years, parents and children have won many hard-fought battles for the right to choose the best schools, public or private, to meet their educational needs. A majority of states now have programs providing some degree of access to K–12 private schools.
Political victories would not have come without the backing of the U.S. Supreme Court, and no justice was a greater stalwart for the school-choice cause over the past three decades than liberty-loving Antonin Scalia, who died in February at age 79.
Scalia’s eventual replacement could open the door wider for full-scale school choice programs by voting to uphold parents’ right to send their children to private secular or religious schools, or he or she could slam the door shut by narrowing choice options to secular, government-backed schools. The stakes for full-scale school choice are simply enormous.
The key constitutional issue currently being debated by choice advocates and opponents of choice is whether making publicly funded scholarships available for use at religiously affiliated schools violates the prohibition of an official “establishment of religion” contained within the First Amendment.
Scalia was part of the 5–4 majority in the landmark case Zelman v. Simmons-Harris (2002), which found Cleveland’s tuition voucher program to be constitutional, even though 82 percent of participating private schools had a religious affiliation. The voucher program provided parents with up to $2,250 a year for education-related expenses.
The Zelman majority created a five-part private choice test that programs facilitating access to religious schools must pass to be considered constitutional: (1) It must have a valid secular purpose; (2) send aid to parents, not to the schools; (3) cover a broad class of beneficiaries; (4) be neutral with regard to religion; and (5) provide ample non-religious options.
In regards to concerns about the large number of voucher students enrolling in parochial schools, the majority opinion stated, “The incidental advancement of a religious mission is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.”
The Court’s bench has changed quite a bit since 2002. With Scalia’s passing, only Justices Clarence Thomas and Anthony Kennedy remain from the pro-voucher majority. Current Justices Ruth Bader Ginsburg and Stephen Breyer were dissenters in Zelman.
Despite the Court’s changing faces, the 5–4 split in choice cases has been maintained over the past decade. In Arizona Christian School v. Winn (2011), Scalia, Thomas, and Kennedy joined with Chief Justice John Roberts and Justice Samuel Alito in defending an Arizona tax-credit scholarship program from the preposterous liberal assertion that all income belongs to the government, even if it never reaches a tax collector’s hands. The dissenters were Ginsburg and Breyer, joined by Justices Elena Kagan and Sonia Sotomayor, both of whom were appointed by President Barack Obama.
The Zelman precedent has thwarted many challenges to private school choice, often led by the American Civil Liberties Union (ACLU), over the past 14 years. For instance, in Oliver v. Hofmeister, decided on February 16, the Oklahoma Supreme Court cited Zelman in its unanimous decision to uphold a voucher program for disabled kids against the contention that a lopsided parental preference for religious schools rendered it unconstitutional. The enrollment pattern is “the sole result of the parent’s independent decision completely free from state influence,” the Court countered.
Oklahoma’s High Court batted down a cynical effort by choice foes to use a bigoted, anti-Catholic Blaine amendment, which still exists in three-dozen state constitutions, to deny families access to full-scale school choice. Blaine amendments are the rotten remnant of a 19th century political effort to go far beyond the U.S. Constitution in imposing barriers against any sort of aid helping “sectarian” schools, even indirectly.
Unfortunately, Blaine is still an insidious obstacle to choice in some state courthouses. In June 2015, the Colorado Supreme Court, in a 4–3 vote, sided with the ACLU’s lawyers, who argued the state’s Blaine amendment must prevail over a pilot voucher program started by the Douglas County School Board.
In December 2015, lawyers representing parents in Douglas County and the school board petitioned the U.S. Supreme Court for a review of the constitutionality of the religious discrimination inherent in the Blaine laws. A decision could come any day.
If Scalia were still alive, the passionate advocate for the First Amendment’s Free Exercise Clause would most assuredly vote in favor of the Douglas County parents and school board, making it very likely the Blaine amendments would finally be struck down, thereby enabling millions more schoolchildren to enjoy the benefits of school choice. Without Scalia, the pro-Blaine stance of the Colorado jurists will likely be affirmed in a 4–4 vote, or, even worse, it could be affirmed as a binding precedent in a 5–4 vote if Obama chooses an anti-choice nominee and successfully has him or her confirmed by the Senate.
Elections do have consequences. The question is which election should determine the future of school choice: 2012 or 2016?