School Choice Legal Strategy

Education Week's Mark Walsh covers the second phase of the Institute for Justice's legal strategy to defeat state constitutional provisions that block school vouchers from being by students to attend religious schools.

"The rule of law we are seeking to establish in these cases is that a state cannot discriminate against religious school options," said Clint Bolick, a vice president of the institute who was the architect of a decade-long legal strategy that led to the high court's ruling upholding vouchers under the U.S. Constitution. In its June decision in Zelman v. Simmons-Harris, the justices held that the inclusion of religious schools in the Cleveland voucher program was not an unconstitutional establishment of religion under the First Amendment.

Now the focus has shifted to the states, where new choice programs that would include religious schools potentially face state constitutional barriers. The institute says 37 states have so-called Blaine amendments in their state constitutions. These are provisions, named for 19th- century U.S. Rep. James G. Blaine of Maine, that prohibit government funds from going to religious sects or institutions. Most of these provisions were added after the failure by Congress to adopt such an amendment to the federal Constitution in the 1870s, a measure pushed by Rep. Blaine.

Richard D. Komer, a senior lawyer with the institute, said 29 states have so- called "compelled support" provisions in their constitutions, which tend to predate the Blaine era and provide that no one be compelled to attend or support a church without consent.

In the institute's view, these state barriers should not prevent the inclusion of religious schools in any choice program. It argues that parents have several grounds under the U.S. Constitution for seeking to open choice programs to religious schools. These include the First Amendment's guarantees of free speech and free exercise of religion and the 14th Amendment right to equal protection under the law. . . .

The institute plans to file lawsuits challenging Blaine amendments and compelled-support provisions around the country. It will pick its battles carefully, the lawyers said, because it doesn't have the resources to sue in every state, but it wants to litigate in enough places to create a conflict among the federal circuit courts. That would eventually lead back to the Supreme Court.