Publicly Funded Programs

Publicly funded educational choice programs allocate state funds to families to pay for their children’s education, either partially or completely, at the school of their choice. Following IJ’s victories at the U.S. Supreme Court–Espinoza v. Montana Department of Revenue in 2020 and Carson v. Makin in 2022–such programs must give parents the freedom to choose a school, regardless of religion. 

• Since its founding, the Institute for Justice has filed or intervened in 30 lawsuits defending or seeking to expand publicly funded educational choice programs, including the landmark U.S. Supreme Court case Zelman v. Simmons-Harris.
• We defended the nation’s very first modern-day educational choice program, the Parental Choice Program in Milwaukee, and one of the largest scholarship programs in the United States, West Virginia’s Hope Scholarship Program. 
• Each year, over 370,000 students in 19 states, plus Washington, D.C. and Puerto Rico, receive publicly funded scholarships, giving them a chance to be educated in schools that suit their needs.

IJ has fought to protect nearly every publicly funded educational choice program in the country from outside attacks. In IJ’s 2002 U.S. Supreme Court victory in Zelman v. Simmons-Harris, the Court held that publicly funded educational choice programs are indeed constitutional, even when parents have the option to choose religious schools. The Supreme Court ruled that such programs are perfectly permissible under the Establishment Clause of the First Amendment to the U.S. Constitution, which bans the government from making any law “respecting an establishment of religion,” so long as they satisfy two criteria. 

First, the program must be religiously neutral, neither favoring nor disfavoring religious options. Religious schools, therefore, can be considered alongside secular schools. Second, the program must be driven by the free and independent choice of parents. This demonstrates that educational choice benefits the parents and their children, not the schools they happen to choose.  

 After Zelman protected educational choice programs from certain federal constitutional challenges, opponents turned to state courts and state constitutions to try to thwart educational choice. But in two victories at the U.S. Supreme Court, IJ was able to defeat those efforts as well. In 2020, the Court in Espinoza ruled that states cannot apply their own constitutions to bar religious schools from educational choice programs. Then, in 2022, the Court in Carson ruled that states may not prohibit families that participate in educational choice programs from selecting schools that provide religious instruction. 

Thanks to IJ’s determined advocacy over three decades, parents have more options than ever before. But IJ is not resting on its past victories. IJ is continuing to file or intervene in lawsuits defending or seeking to expand publicly funded educational choice programs so parents have the educational option that is best for their children.