School Choice in 2003: An Old Concept Gains New Life
by Krista Kafer
The Heritage Foundation March 19, 2004 Legal Memorandum #9
Author’s Note: On January 23, 2004, the District of Columbia joined 11 states or districts that have voucher or tax credit parental choice laws. In fewer than 20 years, the nation has gone from two such programs to 12. In those two decades, 40 states and the District adopted charter school laws, a quarter initiated public school choice open enrollment laws, and home schooling became legal in all 50 states. The movement to empower families to choose the best schools for their children is growing in strength and number with the support of key legal decisions and positive research. In New York University’s Annual Survey of American Law (Vol. 59, Issue 3),Heritage analyst Krista Kafer recounts the legal and legislative history of school choice from its beginnings in the nineteenth century to the rise of the modern movement.
For this reprint, several developments have been updated in footnotes.
The concept of school choice is not new, just as the institution of public schooling is not particularly old. Even as public schools were becoming more common in the mid-nineteenth century in the United States and abroad, John Stuart Mill concluded that in light of the controversies over what should be taught and how it should be taught in state-run schools, the government should "leave to parents to obtain the education where and how they pleased, and content itself with helping to pay the school fees of the poorer classes of children, and defraying the entire school expenses of those who have no one else to pay for them."2 Back then, Maine and Vermont began to pay private school tuition for students in towns without public schools.3 These voucher-like "tuitioning" programs are still in operation today, although they no longer allow students to attend religious private schools.4
In the 1920s, the Supreme Court of the United States affirmed the right of parents to direct their children's schooling. In Meyer v. State of Nebraska, the Court ruled that a state statute forbidding public and private school teachers from instructing students in languages other than English conflicted with the Fourteenth Amendment and infringed upon both the teacher's rights and the rights of parents "to control the education of their own."5 Two years later, in Pierce v. Society of Sisters, the Court struck down an Oregon law mandating that all children attend public schools. In this decision, Justice McReynolds wrote for the Court:
Under the doctrine of Meyer v. Nebraska . . . we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control . . . . The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.6
Transportation is available for all low-income children who qualify for free lunches under the National School Lunch Program or who are disabled. A district may provide transportation for free or for a fee to other children; otherwise, transportation is the responsibility of the parent.13
In 1992, Minnesota opened the nation's first charter school. Charter schools are privately run public schools operated by teachers, parents, community leaders, or other groups under a charter agreement with a sponsor--usually the school district, state, or university. While freed from many state and district statutes, regulations, and rules, these independent schools are accountable to the sponsor to fulfill the terms of the charter and raise student achievement. Most significantly, charter schools are shut down when they fail to meet the terms of their charter.14
Since 1991, forty states and the District of Columbia have enacted laws to establish charter schools.15 Today, there are 2,700 such schools serving 684,000 students.16 State laws vary widely, as do individual charter schools, but a few generalizations can be made. According to research commissioned by the U.S. Department of Education, charter schools serve diverse populations, are smaller than district public schools, and have strong parental involvement.17 The Center for Education Reform's 2002 Survey of American Charter Schools found that charter schools are successfully educating children who are poorly served by traditional public schools and that these charter schools are both innovative and cost-effective.18 Freed from many state and district laws and rules, charter schools have the flexibility to innovate and respond to the needs of their student bodies. In some states, for example, charter schools may hire teachers according to their own standards and are not bound by state certification or district oversight. Other schools may choose to implement a longer school year or school day. Some may adopt a back-to-basics curriculum not available in other schools in the district. Still others may adopt an arts or science focus.19
Recent charter school developments include "virtual charter schools" that provide educational programs via the Internet. One company offering on-line schooling, K12, founded by former U.S. Secretary of Education William Bennett, has expanded to enroll kindergarten through fifth grade students in Arkansas, California, Colorado, Florida, Idaho, Minnesota, Ohio, Pennsylvania, and Wisconsin. Home-schooling families, discussed infra, may purchase the school's on-line curriculum.20 Some states, like Alaska and North Dakota, that have offered publicly funded correspondence courses since the 1930s are now able to provide coursework via the Internet.21
In 2001, the Utah Supreme Court upheld Utah's charter school law, dismissing a challenge by the Utah School Boards Association as "unreasonable."24 The lawsuit challenged the constitutionality of this charter school law on the grounds that the state constitution authorizes the state board of education to control one uniform system; the court, however, ruled that the state constitution allows the state school board to oversee charter schools, as it grants the board authority over "such other schools and programs that the Legislature may designate."25
The first state to adopt tax deductions and credits for education expenses was Iowa. In 1987, the Iowa legislature enacted a program of tax credits and deductions that allowed families earning less than $45,000 to deduct up to $1,000 per child from their state income tax liability for education expenses.31 For taxpayers who used the standard deduction, the law allowed them a tax credit of up to fifty dollars for each child for education expenses. The legislature repealed the deduction and the income threshold, and increased the credit to 10% in 1996.32 In 1998, the legislature amended the law to allow families to take a tax credit of 25% of the first $1,000 spent on their children's education.33In 1997, Minnesota enacted a law that allows families earning up to $33,500 to take a refundable tax credit of up to $2,000 ($1,000 per student) for education expenses, excluding tuition.34 Minnesotans have been able to deduct education expenses since 1955. The 1997 law raised the maximum deduction to $1,625 for expenses associated with elementary school, including tuition, and up to $2,500 for middle and high school expenses.35
In 1999, Illinois approved an education tax credit, which gives families an annual tax credit of up to 25% of education-related expenses (including tuition, book fees, and lab fees) that exceed $250, up to a maximum of $500 per family.36 After enactment, the Illinois Federation of Teachers filed a lawsuit contending the tax credit contradicted religious establishment provisions in the Illinois Constitution. Judge Loren Lewis of the Franklin County Circuit Court dismissed the suit, declaring the tax credit constitutional, citing the United States Supreme Court decision in Mueller v. Allen, which upheld the Minnesota education tax deduction, as the controlling precedent.37 In 2001, the Fifth District Appellate Court of Illinois upheld the circuit court opinion. Justice Rarick wrote, "The credit at issue here does not involve any appropriation or use of public funds . . . . Funds become available to schools only as the result of private choices made by individual parents."38
Meanwhile, the Illinois Education Association, People for the American Way ,and others filed a second lawsuit alleging the credit violated several provisions of the Illinois Constitution concerning religious establishment and the use of public funds.39 Judge Thomas Appleton of the Sangamon County Circuit Court dismissed the case stating that the credit allows families to spend more of their own money on education and does not involve the expenditure of government funds.40 The decision was appealed. Justice Rita Garman wrote for the Fourth District Appellate Court that the tax credit neither constituted an appropriation of public funds nor violated the establishment clause. Further, the tax credit served a public purpose and met the requirement of "reasonableness and uniformity in non-property-tax classifications."41
A new kind of tax credit was enacted in Arizona in 1997. The Arizona law allows individuals to take a tax credit of up to $500 for donations to organizations that provide scholarships to students in private schools.42 Individuals donating to public school extracurricular activities can receive a tax credit of up to $200.43 From 1998 to 2000, the tax credit program applied to more than 19,000 scholarships, with more than 80% of the recipients selected on the basis of financial need.44 During those years, the credit generated $32 million. Nevertheless, the credit can be considered revenue neutral because the public school system saves money when students who had been educated at public expense leave the system to attend private schools, and these savings offset the revenue loss of the tax credit.45
The Arizona tax credit survived a legal challenge. The Arizona Education Association, Arizona School Boards Association, People for the American Way, and Americans United for Separation of Church and State filed a lawsuit in the Arizona Supreme Court alleging the credit violated the religious establishment provisions of the Arizona and U.S. Constitutions. On January 26, 1999, the state supreme court upheld the tax credit plan in a three to two ruling.46 On First Amendment grounds, the majority stated that the program met the three-prong test for conformity with the Establishment Clause established in Lemon v. Kurtzman.47 The court also compared the Arizona tax credit program to the Minnesota program upheld by the U.S. Supreme Court in Mueller v. Allen,48 stating:
In 2001, Pennsylvania and Florida approved similar tax credits for corporations. Pennsylvania's tax credit program allows corporations to receive a credit for contributions to nonprofit organizations that provide scholarships or organizations that provide grants to public schools for innovative programs. The maximum credit is $100,000, and the state may award no more than $30 million worth of credits per year. Families must meet income eligibility guidelines to receive scholarships.50
Florida's corporate income tax credit provided scholarships for 15,000 students statewide during the 2002-2003 school year. Under this program, a corporation can donate as much as $5 million to a tuition scholarship fund, for which the company will receive a tax credit for the entire amount donated. The program provides low-income students with either a scholarship worth $3,500 or the full cost of tuition, whichever is less, to attend a private school, or a $500 scholarship to attend a public school in another district.51
Voucher programs made similar progress during the 1990s. The Maine and Vermont programs aside, the first voucher program was established in 1990 for low-income students in Milwaukee, Wisconsin. Under the Milwaukee Parental Choice Program, more than 10,000 students from families at or below 175% of the poverty level may use the voucher to attend private or religious schools of choice.53 The American Civil Liberties Union, the teachers union, the National Association for the Advancement of Colored People, Americans United for Separation of Church and State, People for the American Way, and others filed a lawsuit contending that the program violated both the First Amendment and the Wisconsin Constitution. The Wisconsin Supreme Court, however, upheld the program in 1998.54
In 1995, the Ohio legislature enacted the Cleveland Scholarship and Tutoring Program, which allows parents of K-8 school students to use vouchers worth up to $2,250 for tuition at a private or religious school of choice.57 The program, which serves over 5,000 students, endured several legal battles culminating in the June 27, 2002, decision of the Supreme Court of the United States in Zelman v. Simmons-Harris.58 The Court concluded that the use of public money to underwrite tuition at private and religious schools does not violate the Establishment Clause of the Constitution as long as parents make the decision regarding where the voucher is used.59 Given the range of options and the responsibility of the parent to choose from among them, the Supreme Court concluded that the Cleveland program is neutral with regard to religion--even though the majority of voucher recipients chose religious schools. In the Court's decision, Chief Justice Rehnquist wrote, "[w]e believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion."60
The Supreme Court's ruling opens the door to new programs in other states. Free from the cloud of uncertainty, state legislatures and Congress may now consider voucher programs on their merits.
In Houston, Texas, then-District Superintendent of Schools Rod Paige initiated a small voucher-like plan in 1996 that allows students in overcrowded schools to transfer to nonsectarian private schools.61 Referred to as "educational contracting," the practice was expanded in 1998 to provide similar options for students who were struggling in poorly performing schools. Since then, the Houston school board has voted to allow more students to participate in this program of limited choice.62
Although Florida's tax credit and McKay scholarship remain unchallenged, the state's Opportunity Scholarship is under fire. A Florida circuit court struck down the voucher program in August 2002 for conflicting with the state's Blaine amendment, which prohibits tax money from flowing to religious institutions.65 Supporters of vouchers, including Governor Jeb Bush, have challenged the decision. The state has appealed the circuit court's decision, and the judge has allowed the program to continue while the case makes its way through the courts.66Currently, thirty-seven states have so-called Blaine amendments.67 Vestiges of an anti-Catholic movement, these provisions are named after Congressman James Blaine of Maine for his efforts to add such language to the U.S. Constitution.68 In the mid-nineteenth century, anti-Catholic and anti-immigrant bigotry found expression in American institutions and politics. The emerging public schools were commonly Protestant in character, requiring, for example, the reading of the Protestant King James Version of the Bible in classrooms. Efforts to secure funding for Catholic schools were resisted. After the Civil War, a new wave of anti-Catholicism found a friend in U.S. Representative James Blaine of Maine, who hoped to prevent the funding of "sectarian" institutions through the adoption of a Constitutional amendment.69 Although he failed, his efforts and those of similarly minded individuals are felt in thirty-seven states (but not Maine).70
Twenty-nine states have "compelled support" language which states that no one can be compelled to support a religious institution. These provisions originated in colonial times to prevent individuals from being compelled to support a colony's established church. Some states have both types of language
While Wisconsin, Ohio, and Arizona courts have upheld school choice programs in spite of state constitutional provisions, other state courts, such as those in Florida and Vermont, have struck down programs because of these constitutional provisions. The provisions continue to cast a legal cloud over legislative proposals.73
Over the past decade, more than one hundred privately funded organizations have invested $500 million in children's education by providing vouchers that range from $1,500 to $5,000 per year. Children First America ("CFA"), for example, has played a central role in helping to establish many scholarship programs, and continues to provide support for new and existing scholarship organizations. In addition, CFA provides information regarding parental choice to local, state, and federal leaders, parents, and the public.77 In 1998, John T. Walton and Theodore J. Forstmann founded the Children's Scholarship Fund ("CSF"), a multimillion dollar foundation that matches funds raised in communities throughout the country. The CSF sponsors nearly 34,000 students at 7,000 schools in forty-nine states.78
In 2002, researchers at Harvard University, Mathematica Policy Research, Inc., and the University of Wisconsin released a study showing that the academic achievement of low-income African American students who had received privately funded scholarships in New York City had risen significantly.81 Black students who had participated in the program for three years had scores on standardized tests that were 9.2 percentile points higher than the scores of those who remained in the public schools. Even students who participated in the program for fewer than three years experienced gains in achievement.82
In April 2003, Colorado Governor Bill Owens signed H.B. 1160, which authorizes a statewide voucher program for low-income students in poorly performing school districts.91 In other states, numerous new voucher, tax credit, and charter school proposals have been introduced and several have made legislative progress. Maryland Governor Robert Ehrlich signed a bill to make Maryland the fortieth state to enact charter school legislation.92 The Washington Senate approved a bill, S.B. 5012 authorizing charter schools.93 The Utah House and Senate approved two education tax credit bills; however, neither was approved in the other chamber prior to session adjournment.94 Governor Jeb Bush of Florida proposed allowing districts to use vouchers to meet the mandate for new, smaller class sizes that was passed by referendum in November 2002, given that the cost of enabling students to transfer from overcrowded public schools to private schools would be lower than the cost of building additional public school capacity.95 Another proposal to expand corporate tax credit scholarships to military families, H.B. 805, passed in the Florida House of Representatives.96 By the end of the session, the Senate and House agreed on legislation to increase the corporate tax credit program's cap from $50 million to $88 million.97
How legislation will fare in Congress, of course, remains to be seen. Support for school choice among some legislators goes only as far as their front door. According to a Heritage Foundation survey of Members of the previous (107th) Congress, 47% of Representatives and 50% of Senators send their children to private schools. (The percentage of the general population that sends their children to private schools is approximately 10%). Sadly, many of the same policymakers who exercise choice in their own children's education voted to block legislation that would have given lower-income parents the range of options that they themselves enjoy. Vote for vote, had these Members acted in a way that was consistent with their own practices, the proposals would have passed.98
3. In Maine and Vermont, district and state funds enable students in districts without public schools to attend private, non-sectarian schools or public schools in other districts. The Vermont law dates back to 1869. The law was amended in 1902 (Act 27) and in 1927 (Act 31). Me. Rev. Stat. Ann. tit. 20-A, §§ 2901, 2951, 5001-A (West 1993); Vt. Stat. Ann. tit. 16, § 821-4 (West 1989 B.Supp. 2002); see Libby Sternberg, Lessons from Vermont: 132-Year-Old Voucher Program Rebuts Critics, CATO Inst. Briefing Papers (CATO Inst., Wash., D.C.), Sept. 10, 2001 at 1-3.
The Maine legislature passed the Free High School Act in 1873 to provide state funds for education to school districts. Districts were authorized to erect public schools or pay tuition for students in private schools. The law has been amended several times. Me. Rev. Stat. Ann. tit. 20-A (West 1993); Christopher W. Hammons, The Effects of Town Tuitioning in Vermont and Maine, 1 School Choice Issues In Depth 1, 8 (2002), available at http://www/friedmanfoundation.org/ schoolchoiceworks/mainevermontstudy.pdf (last visited Apr. 10, 2003); Vindicating the Supreme Court: Fighting for Parental Liberty by Stopping Religious Discrimination, Inst. for Just. Litig. Backgrounder (Inst. for Just., Wash., D.C), at http://www.ij.org/ media/school_choice/maine/backgrounds.html (last visited Mar. 26, 2003).
12. In California, Illinois, and Ohio, districts must allow intradistrict transfers, and in Arkansas, Iowa, Minnesota, Nebraska, Oklahoma, and Wisconsin students may transfer to schools in the other districts. In other states, the district sets intradistrict policy, and interdistrict choice is available only in participating districts, only for specific populations or at the expense of parents. Id.
37. See Illinois Court Dismisses Case Against Tuition Tax Credit, Important Victory for School Choice, Inst. for Justice Web Release (Inst. for Justice, Wash., D.C.) Dec. 7, 1999, available at, http://www.ij.org/media/school_choice/illinois/12_7_99pr.shtml (last visited Apr. 1, 2003).
39. 2nd Illinois Court Dismisses Case Against Tuition Tax Credit, Resounding Victory for School Choice, Teachers' Union Argument Branded "Absurd," Inst. for Justice Web Release (Inst. for Justice, Wash., D.C.), Apr. 4, 2000, available at http://www.ij.org/media/school_choice/illinois/12_7_99pr.shtml (last visited Apr. 1, 2003).
52. The Back to School Tax Relief Act of 2002, H.R. 5193, 109th Cong. (sponsored by Representative Bob Schaffer (R-CO)), to the House (2002), available at http://thomas.loc.gov (last visited Apr. 1, 2003).
67. There are Blaine amendments in every state but Arizona, Tennessee, Ohio, Vermont, Rhode Island, Connecticut, New Jersey, West Virginia, Iowa, Louisiana, North Carolina, Maine, and Maryland. See, e.g., Ariz. Const. art. IX, § 10; Fla. Const. art. 1 § 3. See Blaine Amendments: States, at http://www.blaineamendments.org/states/states.html (last visited Apr. 1, 2003); see also Clint Bolick & Richard D. Komer, School Choice Answers to Frequently Asked Questions About State Constitutions' Religion Clauses, (Inst. for Justice, Wash., D.C.), Sept. 6, 2002, available at http://www/house.gov/judiciary/komcr091702.pdf (last visited Apr. 1, 2003).
68. U.S. Senator James Blaine of Maine failed to pass a constitutional amendment in 1875 that intended to block efforts by Catholic schools to receive public funding. As a result, supporters shifted focus to state constitutions. Certain existing states amended their constitutions and new states had to adopt such provisions as a condition of statehood (some states had enacted Blaine-like amendments before 1875). The suggested Blaine Amendment to the Constitution read "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations." What Are Blaine Amendments?, The Becket Fund for Religious Liberty, (2003) at www.blaineamendments.org/intro/whatis.html.
73. For programs upheld, see Holmes v. Bush, No. CV 99-3370, 2002 WL 1809079 (Fla. Cir. Ct. Aug. 5, 2002); Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999), cert. denied, 528 U.S. 921, and Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998). For programs struck down, see Chittenden Town Sch. Dist. v. Dep't of Ed., 738 A.2d 539 (Vt. 1999), cert. denied, 528 U.S. 1066 (1999); Asociacion de Maestros v. Torres, 1994 WL 780744 (P.R 1994.). See also Bolick and Komer, supra note 65.
74. UPDATE: On February 25, 2004, the Supreme Court of the United States expressly reserved the issue of the constitutionality of Blaine Amendments for a future case in which such a challenge would be squarely presented. In its Locke v. Davey decision that day, the Court carved out a very narrow exception to its neutrality principle by upholding a Washington state policy that prohibits a particular state college scholarship from being used for training for the religious ministry. Although the decision itself is disappointing, the Court majority took great pains to point out the unique history opposing public funding of clerical training at the nation's founding and distinguished the state provision in question from a Blaine Amendment. The opinion is available at http://www.supremecourtus.gov/opinions/03pdf/02-1315.pdf. Instead of supporting bigoted Blaine Amendments, as some have erroneously argued, the decision in Locke v. Davey may actually hasten the day when the Supreme Court declares them unconstitutional.
79. See Daniel P. Mayer, et al., School Choice in New York After Three Years: An Evaluation of the School Choice Scholarship Program Final Report, Harvard Univ. & Mathematica Policy Research, Inc., Feb. 19, 2002 at 37-40, available at http://www.ksg.harvard.edu/pepg/pdf/nyc%20yr3%20MPR-PEPG%20full.rep%202.19.02.pdf (last visited Apr. 1, 2003); see also Institute for Justice School Choice Research Center (listing a collection of publications and Internet sources) at http://www.ij.org/publications/other/sc_research_center.shtml (last visited Mar. 27, 2003).
84. Jay P. Greene, An Evaluation of the Florida A-Plus Accountability and School Choice Program, Manhattan Inst., Feb. 2001, available at http://www.manhattaninstitute.org/html/cr_aplus.htm (last visited Apr. 9, 2003).