Politics & Policy

Educational Freedom by Every Means Available

A response to "Credit Is Preferred."

While millions of children are denied a quality education daily, we ought not to recklessly dismiss good solutions. Moreover, we should not indulge in this kind of carelessness when the basis of our judgment relies on a poor understanding of the state of constitutional law. Unfortunately, that is exactly what Adam Schaeffer does when he dismisses the viability of school vouchers in his article “Credit Is Preferred: Vouchers Court Trouble Where Tax Credits Don’t.”

#ad#Schaeffer correctly notes, that in a recent report entitled “School Choice and State Constitutions,” the Institute for Justice recommends that 16 states pursue tax credits rather than vouchers. In other words, in a majority of states, the Institute found that both kinds of programs are viable alternatives. Nonetheless, Schaeffer argues that out of legal concerns, school choice advocates should simply give up on vouchers.

Schaeffer’s first key error is the assertion that vouchers are government funds under Blaine Amendments. He fails to understand the standard enunciated by the U.S. Supreme Court and followed by many state supreme courts, under which parents using vouchers and exercising choice in a religiously neutral program can direct funds to public, private, or religious schools. This is not government funding of religion.

He also claims that vouchers are ineffectual in any state with a Blaine Amendment. If this were true, Milwaukee’s incredibly successful voucher program for low-income families could never have grown to serve the nearly 20,000 students, as it in fact has. That program, in fact, survived a challenge under Wisconsin’s Blaine Amendment. Moreover, many other Blaine Amendments states, including Illinois, Pennsylvania, and New York, do not interpret their state constitutions’ religion clauses in such a way as prohibits aid to families selecting religious schools from a neutral array of choices. Similarly, the “compelled support” clauses, found in some state constitutions, do not doom vouchers (as is evident in the recently expanded Ohio voucher program).

Unfortunately, a minority of state courts do take a more restrictive interpretation of Blaine Amendments and other religion provisions; interpretations that, in the view of the Institute for Justice, constitute religious discrimination under the U.S. Constitution. Until the U.S. Supreme Court reins in these state courts, a vindication of choice and religious freedom toward which we are working, tax credits are indeed the safest option in those states.

The second key error made by Schaeffer, is the conclusion that unfortunate decisions from the Colorado and Florida supreme courts doom vouchers elsewhere. The Colorado constitution’s “local control” provision, that the Opportunity Contract program ran afoul of, is one of only six in the country–and is by far the strictest. Moreover, there is a straightforward solution to create a constitutional voucher program in Colorado: use only state funds, not local funds.

Admittedly, the Florida supreme court twisted the education article of its constitution into a pretzel to strike down a small voucher program (while the much larger McKay Scholarship for special needs children survives). But that poorly reasoned opinion, completely divorced from precedent, is unlikely to be followed by courts in the handful of states that have similar provisions. Indeed, the Wisconsin supreme court twice rejected the exact same challenge leveled against the Milwaukee program. And an Arizona court has already specifically declined to apply the Florida case, instead upholding vouchers for special needs and foster children, despite similar language in the Arizona constitution.

It is gross hyperbole to conclude, as Schaeffer does, that “school choice opponents have thrown everything at education tax credits to no avail.” In fact, tax credit programs in Illinois and Arizona have withstood legal challenge, while programs in Minnesota, Iowa, Pennsylvania and other states have not even been challenged.

The point of understanding the legal and constitutional environment of the states is not to sweep aside an entire policy option for all states for all time, but to better design real solutions for each state’s unique situation.

Vouchers and tax credit programs have both opened educational doors once closed to children nationwide. The one-size-fits-all public education monopoly does not work, and neither does a one-size-fits-all solution. Relying exclusively on tax-credit school choice programs would unnecessarily restrict the range of policy options reform-minded legislators could pursue. Such a premature narrowing of options is unwise for a reform movement that needs to maximize choice and develop a variety of models for differing environments.

–Dick Komer is a senior litigation attorney with the Institute for Justice.

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