Institute for Justice
Educational Choice Legislative Resources
Our present system for delivering publicly funded education is in need of dramatic reform. Educational choice programs provide that reform as they shift the power from state boards of education and school districts to parents. Educational choice programs are growing in popularity with programs in more than half the states and Washington, DC.
As the nation’s leading legal advocate for educational choice—with more than 25 years of experience defending these programs against legal challenges, including two victories before the U.S. Supreme Court and 10 state supreme court victories—IJ is well-positioned to weigh in on the constitutionality of proposed legislation. IJ’s team of educational choice experts are always available to answer questions or address concerns.
IJ's Educational Choice Team
Resources
Educational Choice
in Your State
Model Education Savings Account Legislation
Education Savings Accounts (ESAs) have become a popular form of educational choice over the last several years. Unlike vouchers and tax credits, ESAs allow parents to wholly customize their child’s education to fit their child’s needs. There is no one-size-fits-all learning option that is suitable for all children. ESAs thus allow parents to tailor their child’s educational program to meet his or her distinct learning style. Parents may use the funds deposited into their child’s ESA for a variety of educational goods and services including, but not necessarily limited to, tutoring, curriculum for use at home, online instruction, and private school tuition.
Model ESA Bill (Tax-Credit Funded)
IJ’s Model Tax-Credit-Funded ESA Bill provides legislators with the framework to create and enact an ESA program in their state that encourages tax-credit-eligible donations of private funds to non-profit charitable organizations that then award ESAs to eligible students and manage the education savings accounts.
Model ESA Bill (Publicly Funded)
IJ’s Publicly Funded ESA Bill provides legislators with the framework to create and enact an ESA program in their state. This model is a step for legislators to expand educational choice in their state and truly allow parents to be in charge of their child’s education.
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For decades, IJ's attorneys have helped bulletproof educational choice initiatives.
United States Supreme Court Cases
IJ litigated the two landmark Supreme Court cases governing the constitutionality of educational choice in America. In Zelman, the court ruled that educational choice programs do not violate the Establishment Clause. In Winn, the Court upheld the constitutionality of scholarship tax credit programs.
Zelman v. Simmons-Harris
In July 1999, a group of Ohio taxpayers represented by the teachers’ union filed a challenge to an educational choice program in Cleveland, Ohio. They argued that because the financial assistance was being mostly used by families to attend private religious schools that the program in effect unconstitutionally advanced religion. IJ intervened on behalf of parents receiving scholarships for their children.
On June 27, 2002, in a 5-4 decision, the U.S. Supreme Court upheld the program and declared that the financial assistance to eligible families did not violate the Establishment Clause. The Court held that the Ohio program was entirely neutral towards religion and provided benefits directly to a wide spectrum of individuals defined only by financial need and residence in a particular school district. The Court held that no “aid” reached religious schools except by the free and independent choice of the eligible families.
The Court stated that the program was constitutional because it “permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”
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Winn v. Garriot
In 1997, Arizona adopted the nation’s first statewide scholarship tax credit program. The state tax credits encouraged donations to private scholarship organizations.
In 2000, a group of taxpayers represented by the Arizona ACLU filed a federal lawsuit arguing that it violated the federal Establishment Clause.
As in Zelman, IJ intervened in the case on behalf of parents and children who relied on the program. After the court granted our intervention, IJ moved to dismiss the case, arguing both that our victory in Zelman controlled the outcome of this case and that the taxpayers lacked standing to bring their lawsuit.
On April 4, 2011, the U.S. Supreme Court ruled that the taxpayer plaintiffs who challenged the program did not have standing to file the case, and dismissed the case. The Court said that the plaintiffs did not have standing because the donations to Arizona’s School Tuition Organizations were private, not public, funds. Thus, the taxpayer plaintiffs suffered no injury because none of their money ever came into, or flowed out, the public treasury for the scholarships.
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Educational Choice Research
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Bulletproofing School Choice
How to Write Sound & Constitutional Legislation to Expand Educational Opportunity
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Further Reading
Education Savings Accounts
The New Frontier in School Choice
School choice has been central to American education policy debate for a quarter-century. But throughout, school choice has been just that—school choice. In a potentially profound development, Education Savings Accounts (ESAs) reimagine parent choice in ways that may upend many assumptions that have framed issues of school choice in the past. ESAs offer something wholly new, allowing parents to customize their child’s education by stitching together traditional schools and different education providers, including tutors, therapists, online and blended models.
