School Choice and State Constitutions: A Guide to Designing School Choice Programs

Richard D. Komer and Clark Neily
Institute for Justice and the American Legislative Exchange Council
April 2007

This first-of-its-kind report catalogs each state's constitutional provisions and court decisions that may affect future voucher legislation. In most states, voucher programs could face challenges from so-called "Compelled Support" Clauses and Blaine Amendments, one or both of which exist in all but three state constitutions. The former bar states from forcing their citizens to support religious institutions while Blaine Amendments prohibit states from funding "sectarian" institutions, such as religious schools. The resemblance of these provisions to the U.S. Constitution's Establishment Clause has been a great boon to school choice supporters, however, because in 2002 the Supreme Court ruled in Zelman v. Simmons-Harris that Cleveland's voucher program did not breach the separation of church and state. But while Zelman set a powerful precedent for voucher proponents, some state courts have interpreted their Compelled Support Clauses and/or Blaine Amendments more narrowly. Moreover, some states also have "uniformity" provisions that require them to provide a "uniform" public education system available to all children. For instance, the Florida Supreme Court ruled in 2006 that the Sunshine State's "uniform" public school requirement precluded the use of state money for the non-public Opportunity Scholarship voucher program (a ruling that is logically obtuse, at best; see here). In other states, such as Arizona and Wisconsin, courts have interpreted uniformity clauses only to establish a baseline above which additional spending on non-traditional educational options is permissible. To bypass all such headaches, most states can implement private school choice using tax credits, which take advantage of the distinction between state dollars and money that is withheld from the state by private citizens and firms. Crave more of this legal nitty-gritty? This report is aimed at policymakers who might design voucher programs in their own states, but you can read it, too, by going here.

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