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Show A Case for the Constitutionality of School Choice Catherine Thomas-Hoskins to improve the quality of the child's education, and not to promote nor hinder religion. Second, it is only when the parents actively solicit another school that the funding may be used for a religious education. These two features are key, because the parents are the agent of action in choosing a private or religious education over the one offered by the state school. It is also important to note that this case is similar to Cochran, because in both cases the children received the benefit, not the sectarian school. Zobrest like the decision in Zorach v. Chuson focused on the importance of choice and action by the parents. If direct action had not been taken by the parents the students would have remained in public schooling. In addition to the similarities between school choice and Zobrest there appears to be one critical difference. In the case of the interpreter, the private school can derive no benefit to the school, curriculum, other students, or the promotion of religious instruction, while in school-choice since the government cannot ask for records of how and where the money was spent, the school is able to spend the money on the curriculum or other students. This issue has already been addressed and resolved with the other cases. First, the intent of the legislature was to benefit the child. Second, the child is the beneficiary, and the funds that the school would receive are only incidental. Third, there is no financial advantage for the parents to choose a parochial school over a public. When the issue of cost is removed from the parent's list of factors, the primary issue remaining is personal preference. Jackson v. Benson (1998) was the first official school choice case to reach the U.S. Supreme Court. The Supreme Court (119 S. Ct. 466 (1998)) refused to review the lower court's decision, and therefore left standing the decision of the Wisconsin Supreme Court upholding school choice. The denial of certiorari left room for a lot of discussion as to the possible outcome of the next case on school choice. In Benson the school choice program is formally called the Milwaukee Parental Choice Program and was created to allow students living below the poverty line the opportunity to choose their school. There are three basic requirements for a student to be eligible for school choice under this program: (1) the child must be enrolled in school from kindergarten through twelfth grade; (2) the family's income must not exceed 1.75 times the federal poverty level; and (3) the child must have attended a public or private school in Milwaukee the previous year. Justice Donald W Steinmetz for the majority of the Wisconsin Supreme Court wrote (1998, 610-19) that the MPCP does not violate the establishment clause, because it does not excessively entangle the state, nor promote nor hinder religion, and finally has a secular purpose. So, using the Lemon test, the Wisconsin Supreme Court found no constitutional violation with the governmental program. In addition to Wisconsin, Vermont, Arizona, and Ohio all have school choice programs that have been upheld by their respective state courts. For example, in Arizona the legislature approved a state tax deduction for donations given to any school tuition organization, similar to federal government tax deductions relating to charities. The deduction could not exceed five hundred dollars. The majority of people who claimed this deduction were parents whose children attended religious and other private schools. In Kotterman v. Killian (1999), Chief Justice Zlaket for the majority of the Arizona Supreme Court maintained that Mueller was most similar to the Arizona case because it offered a tax credit to the general public. Chief Justice Zlaket used the Lemon three-prong test to justify the constitutionality and finally cited Jackson v. Benson as another reason to affirm, especially since the measures involved gave direct aid to the parents. Zlaket illustrated the importance of parental choice by explaining that under the Milwaukee program the "check was sent directly to the school but was made out to the parents, who endorsed it over to the educational institution.... The Wisconsin court held that the program was permissible under both the federal and state constitutions..."(Kotterman v. Killian 1999, 614). Chief Justice Zlaket also used the child benefit theory and told how the plan would give more options to many parents, especially low income. Basic education is compulsory for children in Arizona, ...but until now low-income parents may have been coerced into accepting public education. These citizens have had few choices and little control over the nature and quality of their children's schooling because they have been unable to afford a private education that may be more compatible with their own values and beliefs (Kotterman v. KiJIian 1999, 615). The Arizona case is similar enough to Jackson and Mueller that it seems highly likely that the U.S. Supreme Court would uphold the decision. Many supporters of school choice argue that the issue of constitutionality will be played out not on the federal level, but on the state level. The supporters' arguments stem from the fact that some states have more clearly defined constitutional provisions on the question of church and state than do other states, because of the Blaine amendment. The Blaine amendment was proposed in 1875 by Congressman James Blaine of Maine. Blaine argued that money should not be given by the states nor federal government to parochial schools. The Blaine amendment reflected a growing sense spreading across the nation that Protestant indoctrination was occurring in the schools. A specific example was the use of the King James Bible in the teaching of students. Catholics and Jews were upset that this was the only version of the Bible used for teaching the students. The Blaine amendment fell 4 votes short of a majority to pass in Congress, but by 1890, 29 states had adopted Blaine-type provisions into their constitutions. Later, some candidates for statehood were required by Congress to adopt the language of the Blaine amendment in order to gain statehood including: North Dakota, South Dakota, Montana, Washington, and New Mexico (Viteritti 1998, 418). Joseph P. Viteritti argues that even if state constitutions are stricter, the rights granted in the due process clause of the 78 |
