OCR Text |
Show Hinckley Journal of Politics Spring 2000 A Case for the Constitutionality of School Choice By Catherine Thomas'Hoskins School-choice programs involve the capacity of parents to select among public, private non-sectarian, and religious schools for education of their children, without being greatly penalized financially. To opponents of school choice, such a policy violates the First Amendment prohibition of government establishment of a religion. This essay reviews major U.S. Supreme Court (and some state supreme court) cases on public education as impacted by the doctrine of separation of church and state. The author concludes that effective school choice programs can be designed that are compatible with the major court precedents. Key considerations include the intent of the program, its practical effects, who holds the choice, the degree of governmental "entanglement" with religion, and religious freedom. Introduction The question of the constitutionality of school choice programs is central to understanding the contemporary debate over this proposed educational reform. This essay reviews the cases that form the basis for interpreting the legal concepts of separation of church and state, and argues that school choice programs can be designed in a manner that will meet the demands of the Constitution. School choice is a program that is gaining momentum across the nation, even though the idea has been supported since at least the 1950s by people such as Milton Friedman (Leube 1987, 102). The reason a free-market economist would support school choice or vouchers, is that it allows the parents to choose which schools their children attend whether public, private nonsectarian, or parochial. Parental choice is accomplished by the government giving parents a capped amount of money, which they use at the school of their choice. The amount of money is decided by the state average of per-pupil public spending. Utah for instance, currently spends $3,835 per pupil (Rees and Youself 1999). A parent would be given either a tax credit or a check for that same amount. The parent would receive the tax credit at the end of the year. The check, on the other hand, would be sent to the school of the parents' choice. School choice is an unusual educational reform for a couple of reasons. First, it is supported by a wide political spectrum. To conservatives, school choice and vouchers are Catherine Thomas-Hoskins is a first year strident at the University of Oregon School of Law in Eugene, Originally from Bountiful, Utah, Catherine is enjoying the beauty of Oregon, but hopes to return to Utah. Catherine is pursing a career in mediation. an increase in privatization and a downsizing of governmental influence. To liberals, such devices are an attempt to lessen the educational gap between the rich and poor in America. They also allow the educational options of children to increase while spending the same amount of previously allocated governmental money per student. Although school-choice programs attract support from across the ideological spectrum, these programs also raise contentious constitutional issues. At the heart of the constitutional debate is the question of whether in practice they are a violation of the establishment clause of the First Amendment, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Opponents of school-choice plans argue that if tax dollars are given to religious schools, this policy amounts to an "establishment" of religion by the state. In order to avoid a violation of the establishment clause, one policy approach would be to prohibit funding for any religious schools. But, this policy presents a second constitutional dilemma. If religious schools were excluded from the schools that parents can choose, are the parents' First Amendment rights under the free exercise clause then being violated? In this essay the author seeks to clarify the constitutional standing of school choice plans, by carefully examining the Supreme Court's decisions with regard to schools and the issue of separation of church and state. On November 10, 1998, the Supreme Court refused to grant certiorari in the case of Jackson v. Benson, which dealt with the constitutionality of the Milwaukee Parental Choice Program (MPCP), and by so doing left intact the decision of the Wisconsin Supreme Court. The Wisconsin Supreme Court had decided that the MPCP did not violate the state 73 |