Providing legal counsel in the design and passage of school choice programs has long been an essential component of IJ’s school choice advocacy. Although the vast majority of that counsel takes place behind the scenes, occasionally we are asked to testify before state legislative committees. Indeed, IJ attorneys are often the only constitutional experts on school choice invited to testify. I have even testified before the U.S. House of Representatives’ Judiciary Committee (about the Zelman case, which IJ litigated before the U.S. Supreme Court) and the federal Civil Rights Commission (about the discriminatory state Blaine Amendments). Testifying before legislative committees puts a premium on providing a clear and succinct explanation of complex issues in the briefest possible time. Like an oral argument in court, you hope for an informed audience of legislators who will ask concise and intelligent questions.
When invited to testify on school choice legislation, we provide expert advice, usually on state constitutional issues, such as Blaine Amendments designed to prohibit state funding of religious schools. Such highly contentious issues can lead to a lot of political posturing and a significant degree of hostility towards the witness, expressed in the form of questions that reflect the policy preferences and biases of the committee members. The political cultures of states vary widely and as a witness one must remain calm and professional at all times, especially when facing legislators with a clear opposition to giving parents greater control over a child’s education.
But the most difficult questions to answer tend to be the ones that require the most wide ranging knowledge of related subject matter. For example, when I testified in the Wisconsin Legislature on a proposed scholarship bill that would enable families with students receiving special education in the public schools to send their children to private schools, I would have been totally at sea without a thorough grasp of how the federal Individuals with Disabilities Education Act (IDEA) works. That incredibly complex federal law forms a backdrop to special education in all 50 states, because all states receive federal funds from the U.S. Department of Education to operate their programs and have to abide by its mandates. Having worked at the department before coming to IJ has proved invaluable in explaining how school choice can operate harmoniously with the IDEA.
The past two years have brought a tremendous increase in legislative interest in school choice, with more states considering and passing school choice legislation than ever before. This has resulted in opportunities to testify in new states seriously considering school choice for the first time. For example, IJ Arizona Chapter Executive Director Tim Keller testified in Montana about a proposed tax-credit scholarship program, and I testified before the Alaska Legislature about a constitutional amendment to repeal their Blaine Amendment to reverse the outcome of several old and deeply flawed decisions of the Alaska Supreme Court. But while Tim actually got to go to Montana, I had to testify by telephone for an hour in Alaska! (Somehow it just wasn’t as much fun for me.)
Regardless of whether we carry our message of educational freedom face-to-face with legislators or do so remotely, advocates from the Institute for Justice will continue informing lawmakers across the nation about not only the need for choice, but about the clear constitutionality of such programs, as well.
Dick Komer is an IJ senior attorney.
Also in this Issue: