School Choice Is Constitutional (And Coming)


Those objecting to school choice (often anonymously) like to assert that there’s no way it would be constitutional to allow parents to choose their own education service providers using the public funds set aside for that purpose, even if the chosen schools are religious in nature.  I’ve yet to see the objection come with evidence or real argument; it’s typically offered as a challenge to school choice advocates to prove the negative, and since legal argument is dismissed out of hand, it’s meant to be a rhetorical trap.

As with much of the messaging of the political left, it’s a trap that won’t remain available for much longer. Here’s Jason Russell asking in the Washington Examiner whether 2015 was “the best year yet for educational choice”:

Education choice advocates also won four out of five lawsuits decided in 2015. For example, the North Carolina state supreme court upheld the state’s tuition voucher law, while the Alabama state supreme court upheld the state’s tax credits for tuition scholarships.

Bedrick tallies seven lawsuits that are currently pending, two of which challenge Nevada’s near-universal education savings account law.

Decades ago, largely in a fit of anti-Catholic bigotry, some states passed “Blaine Amendments” that set a higher barrier for educational choice (although education savings accounts [ESAs], such as those introduced last year in Rhode Island are proving able to overcome that barrier).  It’s worth noting that Rhode Island doesn’t even have such an amendment.

It might take a while, but school choice will come to Rhode Island and the country.  It too perfectly fits a too-obvious problem for parents and society at large not to insist on it when once the understand that it’s allowed.  We can only hope that part of that process will also remind Rhode Islanders and Americans that they are supposed to determine what’s allowed in the first place.

  • Censored Again?

    Really? You thought that the comment was censor-worthy? You are awful sensitive about this topic. Are you getting a bonus if you get it through?

    • OceanStateCurrent

      It was caught in the spam folder. Don’t know why. Maybe names like “support the constitution” get flagged often or something.

  • OceanStateCurrent

    I’m telling you it’s not unconstitutional as a matter of current law. If you want it to be, you’ll have to advocate for a change in the state constitution.

    Even your quote should show you why. For a moment, look at the issue with a critical eye rather than ideological blinders. “All religions are equal in the eyes of the law with no special preference or favoritism.” To explicitly forbid schools that treat a particular religion as a legitimate part of a holistic education is to show special preference and favoritism for those that do not in contravention of the desires of those of your fellow citizens who agree with them.

    The support for religion is voluntary on the part of the family choosing that school. Provided the school supplies the service that the government broadly defines as “education,” it would be contrary to the establishment clause to intentionally exclude schools that are associated with a religion.

  • Mike678

    “I know the 1st Amendment isn’t as popular with you folks as the 2nd.” Really? Can one exist without the other?

  • OceanStateCurrent

    I’m sorry, but you’re completely wrong about the law. The establishment clause IS the First Amendment prohibition on favoring particular religions, and state constitutions DO still have some leeway. It’s just the way the law works at this point in time. If you think I’m wrong, you’ll have to show evidence and argue the point.

    What you’ve conveniently forgotten is that the government is also seizing taxes from me, and yet you insist that only schools that conform with your understanding of religion should be eligible for participation in a school choice program. No school choice plan that I’ve seen would say that schools run by one particular religion or denomination would be excluded or included. As long as there are no restrictions, with regard to religion, provided the basic educational standards are met, then no religion is preferred. Your the one who wishes to show preference for a particular worldview against my preferences as a taxpayer.

    • Mike678

      Well stated.

  • Tommy Cranston

    Of course it’s as constitutional as Pell Grants to students at Notre Dame, Wake Forest, BYU or Baruch College.
    But is it “coming”? It will come to Cuba and North Korea before it hits this scummy little public union governed toilet of a state.

    • Censored?

      Not a bad example, but it’s already been resolved:

      “Due to the impressionability of young people, the Supreme Court has distinguished between the use of government funds in colleges and elementary and secondary schools, where funding might be construed as government endorsement of the religious message.

      This distinction was first articulated in Tilton v. Richardson, 403 U.S. 672 (1971), in which the Court held that “There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools. [C]ollege students are less impressionable and less susceptible to religious indoctrination.”
      Because “high school instruction is given in a structured and controlled environment and in more confined facilities than is usual in the open, free, and more fluid environment of a college campus… the possible perception by adolescent students that government is communicating a message of endorsement
      of religion… would be vastly different in a high school setting than the perception of such action by college students in a college setting.”[1]

      [1] Widmar v. Vincent, 454 U.S 263 (1981). See also, Jones
      v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992), citing Widmar for the principle that age is inversely proportional to impressionability, from university students to secondary school students.

      • ShannonEntropy

        Allowing school vouchers to be used at religious schools is simply an extension of parents’ 14th Amendment Right to use parochial schools

        The basic principle was established by the SCOTUS in one of their most-cited cases ever —

        Pierce v. Society of Sisters of the Holy Names of Jesus and Mary 268 U.S. 510

        See =►

        • Mike678

          Mr. Anonymous is quoting from a document produced by the National Coalition for Public Education which is “comprised of more than 50 education, civic, civil rights, and religious organizations devoted to the support of public schools. Founded in 1978, NCPE opposes the funneling of public money to private and religious schools through such mechanisms as tuition tax credits and vouchers.”

          Not exactly a “fair and balanced” perspective. A good start, though, as you show in your post, the authors cherry-pick sources.

  • Guest

    State of Hawaii is the only state in the nation that has one unified state-wide school district run by the State Department of Education which means all public school educators are state employees. School budget is removed from municipal budgets and is part of state-wide budget supported by state income tax, sales tax, fuel tax and other various small state use fees. I love looking at a $300 City of Honolulu property tax bill each year!

    State of Hawaii has a number of various charter schools, private schools, academies and religious order supported private schools of different
    religions (some of the oldest in nation).

    As far as education in Hawaii is concerned, all schools, elementary, middle school and high schools receive the basically the same education requirements and course curriculum from the state and it is up to the schools, teachers and principals how they implement plus all special resources for 21st Century education supported via public/private partnerships are distributed equally across all schools regardless if they are public, charter, private or religious private so yes in Hawaii my tax dollars support charter, private and religious private schools not in voucher form but in education support resource form.

    Am I upset? No not with the sensible well thought out fair way State of Hawaii is doing it! You must also understand, people in Hawaii take ownership of their children’s schools or their alma maters and return to
    clean up school grounds, landscape, plant flowers, clean and paint classrooms, hallways, public spaces and exterior school building. Communities give to their local schools above and beyond what the school receives in annual school budget. School sports venues are heavily attended by parents and friends and rivalry between all school sports programs are almost on the professional level. Most PTA meetings are normally standing room only in Hawaii.

    With most all of “No Child Left Behind” Federal mandates now dead with Congress’s reauthorization of the 50 year-old “Elementary and Secondary Education Act, Local states, school committees, school departments,
    principals, teachers and parents finally have control back from Washington, DC.

    Speaking of separation of church and state, Hawaii City Hall every Christmas also has the religious manger display on the grounds and anyone who doesn’t like it will be escorted to the beach to start walking back to the mainland.