The right to an education or the right to shop for schooling: examining voucher programs in relation to state constitutional guarantees.

AuthorMead, Julie F.

Introduction I. Prevalence of Vouchers and Voucher-Like Programs II. Challenges to Vouchers and Tax Credit Scholarships Under State Education Clauses 1. Wisconsin 2. Ohio 3. Colorado 4. Florida 5. Arizona 6. Indiana 7. Louisiana 8. North Carolina 9. Alabama 10. Summary III. Discussion and Conclusions Conclusion Introduction

Recently, the Colorado Supreme Court heard oral arguments in a case contesting the constitutionality of the Choice Scholarship Pilot Program established by the Douglas County School District. (1) The program is a locally created voucher program that permits the use of public tax dollars to subsidize the tuition costs of private school enrollment. (2) Taxpayers challenged the program alleging it violated the Colorado Constitution's education provisions. (3)

During those arguments, Chief Justice Nancy Rice asked the attorney defending the program: "Is this a paradigm shift? Are you saying public education is just a funding mechanism? ... Is all education now public [and parents] can just choose?" (4)

As this exchange illustrates, the introduction of publicly funded private school choice provisions calls into question what is "public" about "public education." Distinctions that once were clear--public school versus private school--become blurred. For example, Tony Evers, Wisconsin Superintendent of Public Education, noted that the average private school participating in the Milwaukee Parental Choice Program (MPCP) enrolls more than eighty percent of its students by means of a publicly funded voucher and posed the following question: "If only one in five students enrolled in a choice school pays tuition, then when do choice schools stop being private schools and become something else?" (5) These same statistics prompted the American Civil Liberties Union and Disability Rights Wisconsin to characterize the MPCP participating schools as "private in name only." (6)

Whether voucher programs alter the nature of the participating schools from private school to some quasi-public or quasi-private form of school is a provocative question. However, the more important question is what such programs mean for a child's right to an education. State constitutions uniformly make some provision of public education, sketching the contours of that right and directing state legislatures to provide it. (7) As such, the question becomes whether a state's subsidy of private education compromises that state's ability to fulfill its obligation to establish and fund public schools consistent with each state's constitutional mandates. In other words, at what point, if any, does a state's funding of private education subvert its constitutional obligation to provide adequately for public education, thereby converting a child's right to an education to merely the right to shop for one?

This Article explores that question in relation to state constitutional directives for those states currently operating some form of voucher program. This analysis reviews case law and explores the issues raised by litigation. Given the increased attention by state legislatures being paid to voucher programs and school choice funded by tax credit scholarship programs and education savings accounts, these questions have renewed currency and application. Part I reviews the prevalence of voucher, tuition tax credit scholarship programs, and education savings account programs across the country. Part II briefly describes judicial findings with respect to the constitutionality of the programs under state constitution education clauses. Finally, Part III provides discussion and conclusions regarding voucher and voucher-like programs in relation to state constitutional guarantees of a right to a public education.

  1. Prevalence of Vouchers and Voucher-Like Programs

    While publicly funded private school voucher programs have not fared well when placed on ballots, (8) school choice proponents have achieved much better success through legislative enactment. In fact, the prevalence of voucher and voucher-like programs has steadily increased since the Wisconsin Legislature enacted the first publicly funded private school voucher plan, the MPCP, in (1990). (9) Publicly funded support for private education typically comes in three forms: (1) publicly funded vouchers; (2) tuition tax credit scholarship programs; and (3) education savings account programs. (10) Voucher programs permit the use of public tax dollars to support all or part of the tuition costs of enrolling a child in a private school. (11) Parents of eligible students direct the funds by selecting the private school the child will attend. (12) Tuition tax credit scholarship programs, also called neo-vouchers, (13) permit individuals, corporations, or both to receive a tax credit in exchange for a donation to a state-approved scholarship program that then provides vouchers to eligible children to attend private schools. (14) Education savings accounts allow parents to divert all or part of the state school funding earmarked for their child to an account, which can then be used to pay for various approved educational expenses, including private school tuition. (15) The end, a subsidy for private school tuition, is the same in all three types of programs. In voucher programs, the funds flow directly from state coffers to parents in the form of a voucher that can only be spent at a private school participating in the program. (16) In tuition tax credit programs, funds are funneled to parents through "scholarships" established for the sole purpose of collecting and dispersing educational tax credits. (17) In education savings account programs, state support for a parent's child is channeled into a special account maintained by the state and established for the purpose of paying educational expenses. (18)

    As Table 1 depicts, twenty-four states now have some type of voucher program or voucher-like program, but only seven programs are more than a decade old, (19) and fifteen programs have been enacted since just 2013. (20) Twelve of the twenty-four states have created two or more choice programs. (21) Three distinct types of traditional voucher programs exist: (1) programs that serve children with disabilities (twelve programs in ten states); (22)(2) programs that are limited to a specific location (three states); (23) and (3) statewide voucher programs (five states). (24) In addition, sixteen states have created tuition tax credit programs that transform tax liability into voucher-like scholarships for eligible children to attend private schools. (25) Arizona adopted the first of this type of school choice program in 1997. (26) It is interesting to note that while voucher programs are older, neovouchers (tuition tax credit programs) now equal them in number. Finally, five states have created education savings account programs, (27) the newest voucher-like program to emerge. Once again, Arizona was the first state to enact legislation to create this type of parental school choice. (28)

    Given their controversial nature, it is not surprising that voucher programs have been challenged on a number of legal grounds, most notably as a violation of federal and state constitutional provisions regarding religion. (32) Interpreting the Establishment Clause of the First Amendment to the U.S. Constitution, the U.S. Supreme Court in its 2002 decision Zelman v. Simmons-Harris settled the federal constitutionality of voucher programs that permit private religious school participation. (33) The Court held that such programs are permissible as long as: (1) the voucher plan serves a legitimate secular purpose; (34) (2) recipients of the aid (parents and children) are not defined by religious criteria; (35) and (3) parents have available to them a "genuine choice" from among a variety of secular and sectarian schools. (36) Subsequent to this pronouncement, various state voucher enactments have been challenged in state courts as violations of state constitutional religion and education clauses. (37)

    Since this study examines vouchers in relation to a child's right to an education, the discussion concentrates on the issues raised pursuant to the education clauses of state constitutions. The next Part reviews that case law and the reasoning courts applied to declare various voucher, tax credit scholarship programs, or education savings account programs either consistent or inconsistent with state constitution education provisions.

  2. CHALLENGES TO VOUCHERS AND TAX CREDIT SCHOLARSHIPS UNDER STATE EDUCATION CLAUSES

    State courts in eight states (36) have considered challenges to voucher programs in relation to state constitutional provisions setting legislative requirements for the education of the state's children. (34) Additionally, plaintiffs have challenged tax credit programs under education clauses in Alabama, (40) Arizona, (41) Florida, (42) and New Hampshire, (43) though no decision on the merits was reached in either the Florida case or the New Hampshire case, as the reviewing courts determined the challenging taxpayers lacked standing to assert their claims. (44) Not surprisingly, given the recency of their adoption, only one state's education savings account program has been challenged. (45) Decisions concerning all three types of programs are presented here in precedential order by state according to the chronology of that state's first judicial decision interpreting the state constitution in relation to these parental choice programs. (46)

    1. Wisconsin

      The Milwaukee Parental Choice Program (MPCP) was first challenged shortly after its enactment in 1990. (47) The original MPCP permitted up to one percent or approximately 1000 of the enrolled children in Milwaukee Public Schools (MPS) to attend private nonsectarian schools within the city's limits if their family's income was no more than 175 % of the federal poverty level. (48) Participating schools were limited to enrolling no more than forty-nine...

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