By Dick Komer
When legislators from any state in the union want to know how to create a school choice program under their state constitution, they can now find that information in one source: School Choice and State Constitutions: A Guide to Designing School Choice Programs. This document, which was created by the Institute for Justice’s school choice team and will be released through the American Legislative Exchange Council (ALEC), reviews each state’s constitutional provisions for passage most relevant to school choice legislation as well as any case law or legal opinions involving those provisions. As the lawyers for school choice, IJ has always reviewed individual state constitutional provisions as the need arose, but this is our first comprehensive look at all 50 states at once.
Ever since our success at the U.S. Supreme Court in Zelman v. Simmons-Harris—defeating school choice opponents’ attacks on choice programs under the federal Establishment Clause—the teachers’ unions and their allies have been left with state constitutional challenges as their primary legal means of discouraging states from passing school choice legislation and of challenging those that pass. They have relied primarily on state constitutions’ religion clauses, giving those clauses the same overly broad reading the U.S. Supreme Court rejected in Zelman under the Establishment Clause. Consequently, in the survey we focus on the states’ religion clauses, but we also look at other constitutional provisions that can be relevant in determining the constitutionality of school choice in a specific state. For example, we look to see whether the constitutions’ education articles contain language similar to that used by the Florida Supreme Court in its poorly reasoned Holmes decision striking down the Opportunity Scholarship Program there.
For each state, we quote the most relevant constitutional provisions, and then provide citations and short descriptions of relevant case law and legal opinions.
We conclude each state review with a brief analysis and recommendations section. Here we assess whether for a given state a voucher or tax credit program (or both) is feasible. While a number of states have interpreted their religion clauses more broadly than the Establishment Clause, thereby rendering a voucher program less feasible, in almost all states a tax credit-type program would be viable. Fortunately, in nearly every state in the union, a well-designed school choice program is viable.
We also include a list of various models of school choice legislation formally adopted by ALEC, with a short thumbnail description of each. This list provides legislators and activists with a convenient starting place for thinking about forms of school choice programs that might be appropriate to propose for their states. Included are models of both broad voucher and tax credit programs and of narrower special-purpose programs addressed to the needs of special populations of children, such as those in special education or foster care.
Although not intended as a substitute for the more detailed in-depth legal review of state legislation that IJ does routinely, the idea is to provide a broad overview as a starting point for consideration of school choice legislation. Used in conjunction with IJ’s recent publication “Bulletproofing School Choice Legislation,” found on IJ’s website at /index.php?option=com_content&task=view&id=1623&Itemid=249, the new 50-state survey will provide a useful tool for lawmakers and advocates alike.
Dick Komer is an IJ senior attorney.