Across political, cultural and racial divides, an overwhelming majority of Americans support education choice. Recent polls show more than 70% support.
The results, too, show undeniable success. More than 180 empirical studies indicate positive effects on everything from fiscal impact to parental satisfaction, test scores, civic values and more.
Roughly 60% of states now offer some form of an Education Savings Account (ESA), an education choice tax credit, or a tax credit scholarship. Each year, the list of participating states gets longer.
Unfortunately for students in some states, lawmakers have been more reluctant to add options. The arguments against choice here vary, but opponents – most often state teacher unions – launch legal roadblocks in every state. Lawmakers must understand and expect any new program to face legal questions, especially when it is perceived to threaten special interest groups including unions.
The overarching question, however, is whether education choice is constitutional. In most states, the answer is yes, as we highlight in a new study.
In 2002, the U.S. Supreme Court eliminated the federal Establishment Clause as a barrier to education choice. Zelman v. Simmons-Harris allows the government to fund any school on a neutral basis, so long as the choice of a religious school is voluntary. This has left opponents at the state level with just two potential courses to pursue roadblocks: the religious and education provisions recorded in state constitutions.
A “compelled support” clause exists in 29 state constitutions. It was originally intended to prevent an official state religion. Anti-Catholic Blaine Amendments can also be found in dozens of state constitutions – provisions the U.S. Supreme Court has labeled “shameful” and a “clear manifestation of religious bigotry.”
Every state constitution also has an education provision, with some containing language that calls for a “uniform system of free public education,” or something similar. Education choice opponents have argued that such language not only requires the government to establish traditional public schools but also prevents the government from doing anything else. Uniformity Clauses, however, were never intended to be a ceiling or limitation on creativity. Instead, they were simply meant to ensure there was a floor.
The United States Supreme Court has issued several recent rulings that are instructive here. In Carson v. Makin, the court ruled on the constitutionality of the oldest school choice program in the United States. Town tuition programs in Maine and Vermont allowed towns that don’t have public schools to pay for a student’s tuition at an approved public or private school – including religious schools. When Maine moved to ban religious schools from participating, the case went to the Supreme Court and was overturned, with justices concluding it violated a parent’s First Amendment religious rights.
Espinoza v. Montana Department of Revenue from 2022 dealt with restrictions to Montana’s tax credit scholarship program. The Montana Department of Revenue prohibited recipients from using their scholarships at religious schools. But the U.S. Supreme Court ruled that “a state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
In 2011, the Supreme Court issued an opinion in Arizona Christian School Tuition Organization v. Winn. That case involved Arizona’s scholarship tax credit. The court ruled the plaintiffs had no standing to sue because tax credits involve personal income, not government money – a critical distinction that serves as an example for other states.
There are also dozens of state cases that provide a roadmap. Here are a few examples.
The West Virginia Supreme Court recently ruled in favor of the ESAs and said: “We find that the West Virginia Constitution does not prohibit the Legislature from enacting the Hope Scholarship Act in addition to providing for a thorough and efficient system of free schools. The Constitution allows the Legislature to do both of these things.”
Arizona’s Supreme Court held that the education article in the state’s constitution for a “general and uniform” public school system applies only to the obligation to fund a public school system that is adequate and defining adequacy is a legislative task.
The overwhelming consensus of cases at the federal and state level shows that education choice programs are constitutional. The key is for policymakers to put the decisions in the hands of parents.
Perhaps the simplest education choice solution is a refundable tax credit. Cases brought against tax credits have rarely had success because plaintiffs cannot show any personal injury, and they involve personal income – not government funds.
As the West Virginia Supreme Court recently ruled, the legislature can fund traditional public schools and also offer parents and students education choice options. Doing both is not only constitutional but is what a majority of Americans want, and some students need.
