School Choice: The State Constitutional Challenge
By Richard Komer
With the possibility of the U.S. Supreme Court taking the Cleveland school choice case (Simmons-Harris v. Zelman) and favorably resolving the federal Establishment Clause challenge to school choice, school choice advocates need to pay attention to potential state constitutional impediments to school choice. School choice opponents have been routinely including state constitutional claims in their challenges to school choice programs, so IJ already has considerable experience in combating such claims.
Where we have been successful (Wisconsin, Ohio, Arizona and Illinois), it is because we have succeeded in getting state appellate or supreme courts to hold that with respect to the school choice programs before them, the state constitutions impose no greater limitations than the Establishment Clause. When we have been unsuccessful, unfortunately it has been because the state supreme court has held that state constitutional language prevents the inclusion of religious schools among those that parents can choose.
Although state constitutions contain a wide variety of provisions addressing religion in some fashion or other, there are two sorts of provisions that are found in many constitutions. One sort of provision is derived from the so-called “Blaine Amendment,” a failed effort to amend the federal constitution to preclude grants or appropriations to sectarian institutions or organizations. Variations on the Blaine language are found in the constitutions of 36 states and the commonwealth of Puerto Rico, and were usually added in the last quarter of the 19th Century during a wave of anti-Catholic prejudice. (The Blaine Amendment’s anti-Catholic pedigree is well-known in academic circles, and it has received judicial acknowledgment from both the Arizona Supreme Court in Kotterman v. Killian, and the U.S. Supreme Court in Mitchell v. Helms.)
The other sort of provision is older in derivation, originating during the colonial period to address the then-common practice of government collecting money for the support of churches. These provisions, found in the constitutions of 29 states, provide that no person shall be compelled to support any ministry without his or her consent. As the accompanying map illustrates, while the Blaine language states are found throughout the country, the “compelled support” states are rarely found in the newer western states.
As the map shows, there are only three states (Louisiana, Maine and North Carolina) that contain neither Blaine nor compelled support language. There are 18 that have both kinds of language. Consequently, interpretations of these types of provisions that restrict school choice by excluding religious schools can have potentially widespread implications In much the same way that these provisions were often used by state supreme courts to strike down state provision of subsidized textbooks and transportation to parochial school students after the U.S. Supreme Court had upheld such religiously neutral programs under the Establishment Clause, school choice advocates must be prepared to respond to efforts to use these provisions to exclude the choice of religious schools.
Although IJ has successfully prevented language of both sorts from restricting school choice in Wisconsin, Ohio, Arizona and Illinois, where courts have interpreted their state constitutional language to parallel the federal Establishment Clause, we clearly have our work cut out for us in the future, even if we win in the U.S. Supreme Court. Ultimately, we will need a U.S. Supreme Court decision holding that state constitutional decisions restricting school choice beyond the Establishment Clause are themselves unconstitutional under the federal religion clauses, the Free Speech Clause, the Equal Protection Clause or all of them.
Richard Komer is an IJ senior attorney.