March 2001

Illinois Appellate Court Upholds Constitutionality of Choice

By Matthew Berry

In a significant victory for Illinois families as well as for school choice supporters nationwide, the Appellate Court of Illinois for the Fourth Judicial District in a decision issued on February 8 unanimously upheld the constitutionality of the Illinois educational expenses tax credit law.  The ruling was handed down approximately three months after oral argument was held in Springfield, Illinois.  At that argument, IJ defended the constitutionality of the credit on behalf of 12 Illinois families.

Because of this decision, when IJ’s clients and other Illinois taxpayers file their tax returns this spring, they will be sending less money to the government, which will enable them to spend more money on their children’s education.  The February ruling of the three-judge panel was the third decision by an Illinois court affirming the constitutionality of the tax credit in less than two years; two Illinois trial courts had already dismissed challenges to the credit filed by the Illinois Education Association, Illinois Federation of Teachers and other special-interest organizations opposed to education reform.

The tax credit allows Illinois parents to keep more of their own money to spend on the education of their children as they see fit.

The teachers’ unions and their allies argue that the law, which provides a credit against state income taxes for 25 percent of tuition, book fees or lab fees incurred by K-12 students at public or private schools up to a maximum of $500 per family, violates four provisions of the Illinois Constitution, two of which deal with establishment of religion.  The appellate court, however, emphatically rejected these arguments.

The opinion written by Justice Rita Garman was a complete victory for school choice supporters.  The court ruled that the tax credit does not violate the Illinois Constitution because no public money is spent at religious schools.  Rather, the tax credit allows Illinois parents to keep more of their own money to spend on the education of their children as they see fit.

Excerpt from

“Presidential Update” Cleveland Teachers Union Newsletter

“. . . I got an interesting note from one of our elementary teachers along the lines of, “Why are you wasting your time with vouchers and charter schools instead of important issues like how unprepared the students are to learn and other more pressing issues like inclusion and lack of supplies.” My answer was . . . vouchers and charter schools are like cancer: they are silent killers of your career and public education in general. They are not going to go away by themselves, they have to be made to go away, and you don’t have the time to do that. I do (I make the time), and that’s is [sic] what you pay me to do. . . .”

The court went on to say, however, that the tax credit would still be constitutional even if one considered the money claimed through the credit to constitute public funds.  This is because the tax credit is fully consistent with both U.S. Supreme Court and Illinois Supreme Court precedents indicating that programs providing general educational assistance are constitutional so long as religious and nonreligious options are treated equally and funds are guided by the private and independent choices of parents.

IJ also represents Illinois families in a separate case challenging the constitutionality of the tax credit.  Oral argument was held before the Appellate Court of Illinois for the Fifth Judicial District in Mount Vernon, Illinois, earlier this year, and we expect a decision in that case to be released by the middle of the summer.

Although the teachers’ unions will undoubtedly appeal their recent defeat to the Illinois Supreme Court, five judges have now looked at the educational expenses tax credit, and all five have concluded that it’s constitutional.  That record of success makes us hopeful about our prospects in our remaining battles defending the constitutionality of the credit. 

Matthew Berry is an Institute for Justice attorney.