School Choice Issue Backgrounder

Why Is IJ Committed to Defending Educational Choice?

There has not been a single day since IJ opened its doors that it has not been defending an educational choice program in court. Why the steadfast commitment to educational choice? It begins with the U.S. Constitution.

The U.S. Constitution protects parental liberty. This liberty includes the parents’ freedom to choose the educational setting they believe will best serve their children. As the U.S. Supreme Court explained in its 1925 ruling in Pierce v. Society of Sisters, “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

The philosophy undergirding educational choice programs is rooted in the beliefs that (1) parents know better than bureaucrats which educational environment best suits their children’s needs; and (2) choice-driven competition is essential to any education reform effort that hopes to spur innovation and improve students’ academic performance.

About 10 percent of Americans exercise school choice by sending their school-aged children to private school. Many more Americans exercise school choice by moving to neighborhoods with (what they believe to be) good public schools. But a substantial number of Americans lack the financial means to do either of those things and must instead accept whatever public schools happen to serve their zip code. Knowing their “customers” have nowhere else to turn, those schools lack any meaningful incentives to provide high-quality education.

Recognizing that many families do not have the means to exercise their fundamental right to meaningfully direct the education and upbringing of their children, policymakers nationwide have begun to embrace Milton Friedman’s vision of empowering parents with the financial means to choose where their children go to school. The last few years have seen significant growth in the numbers and types of educational choice programs.

Who Opposes Educational Choice?

Unfortunately, there are many who oppose the effort to provide parents the genuine freedom to choose their children’s educational path. In particular, teachers’ unions oppose these efforts because they fear the loss of money and power that is part and parcel of the public school monopoly. Additionally, groups like the ACLU and Americans United for Separation of Church and State espouse principles of equality and fairness but nevertheless seek to disenfranchise parents who desire a religious education for their children.

In order to halt the expansion of educational choice programs, these groups routinely file lawsuits in state courts under state constitutions, naming state officials as defendants. This is where IJ comes in. IJ represents the true beneficiaries of these programs—parents and children—and intervenes in these cases to advocate for parental liberty and to defend educational choice.

How Do Educational Choice Programs Work?

There are two basic ways to deliver genuine educational choice.

First, states can provide publicly funded scholarships or education savings accounts directly to parents. With the publicly funded scholarships, parents may select the private (and sometimes public) school of their choice and use the scholarships as partial or total payment. Education savings accounts differ slightly from scholarships and allow parents to use the funds deposited in the account for a wide variety of educational options. These options include, but are not limited to, tutoring, curriculum for home education, online instruction, special education services, private school tuition and even college savings.

Second, states can create financial incentives to encourage private philanthropy toward educational choice programs. This is generally achieved by providing tax credits to companies or individuals who give to private charities that then use the donated funds to provide scholarships or education savings accounts. In other words, these companies or individuals can reduce their annual state tax liability by making a donation to a charitable organization that will use that money to provide scholarships or savings accounts to eligible families.

One variant on these models is to give a tax credit directly to parents for their out-of pocket education-related expenses. However, because the cost of tuition often exceeds parents’ tax liabilities, such direct tax credits typically do not spur the sort of participation necessary to generate competitive pressure on the public schools. Refundable tax credits could be the solution that spurs more participation than a direct tax credit. If parents’ tuition costs exceed their tax liabilities, the credits would be refundable and parents would receive money directly from the state. Refundable tax credits represent a hybrid of the publicly funded and tax-credit scholarship models.

Is Educational Choice Constitutional?

In nearly every state in the country, a well-designed educational choice program is viable. In 2002, IJ scored a landmark victory at the U.S. Supreme Court. Prior to 2002, opponents attacked school choice programs as violating both the federal and state constitutions. In Zelman v. Simmons-Harris, the Supreme Court declared that providing parents with educational choice passes federal constitutional muster, as long as the program is neutral with regard to religion and gives parents a genuine choice as to where to educate their children.

Since Zelman, opponents of educational choice have relied exclusively on state constitutional provisions, most often state religion clauses, as their primary legal means of challenging educational choice programs. Some states have interpreted their religion clauses more restrictively than the federal Constitution, thereby rendering a publicly funded program less feasible. In almost all states, however, a tax credit program would be constitutional.

What Is the Future of Educational Choice?

The major focus of the educational choice movement right now is the rapid creation and vigorous legal defense of new programs. Indeed, since 2011, IJ has been busier than ever defending educational choice programs nationwide. In that time, it has secured a unanimous decision from the Indiana Supreme Court upholding the “Hoosier” state’s publicly funded scholarship program. It has also successfully defended Arizona’s publicly funded education savings account program. Additionally, IJ has protected the “Live Free or Die” state’s innovative tax credit program in the New Hampshire Supreme Court.  

The Institute for Justice is the nation’s preeminent courtroom defender of educational choice programs. Anytime a program is challenged, there is a strong presumption that IJ will be involved in defending that program.

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