The Constitutional Parameters of School Choice

I. INTRODUCTION In a conference about school choice, it is somewhat perverse that it is even necessary to have an article addressing constitutional issues. After all, the United States is a nation doctrinally committed to parental hegemony1 and educational opportunity,2 and school choice advances both of those core values. But challenges to school choice programs too seldom recourse to first principles, in large part because it is the plaintiffs who principally frame the terms of the debate. And litigation is a powerful weapon for those who are dedicated to defending the status quo, regardless of the human cost. Every battle over school choice involves at least two parts: the legislative battle, in which legions of lobbyists seek to defeat school choice at any one of the myriad squelch-points in the democratic process; and then the legal challenge, which now rivals death and taxes in both its certainty and annoyance whenever a school choice program is passed. Chapter one in the litigation battle over school choice has already been written,3 and fortunately, the kids won. In its landmark 2002 decision, Zelman v. Simmons-Harris,4 the U.S. Supreme Court removed the First Amendment cloud that had hovered over school choice since it was a glint in Milton Friedman's eye.5 But subsequent chapters are being written as you read this; and so far, the results are decidedly more mixed. Although I am obviously a partisan in this debate-I favor all types of school choice and labor strenuously to promote and defend them-in the following pages I will present the state of the law as objectively as I can, even as I freely editorialize about what I think it should be. It is vitally important that policymakers and advocates have a clear-eyed understanding of the legal lay of the land, so as to ascertain and navigate the realm of the possible. II. SCHOOL CHOICE PROGRAMS AND THE FIRST AMENDMENT Few serious scholars have ever questioned whether school choice could be consistent with the First Amendment. Even before the definitive Zelman ruling, liberal-leaning legal luminaries such as Jesse Choper,6 Laurence Tribe,7 Walter Dellinger,8 John Coons,9 Akhil Amar,10 and Jeffrey Rosen11 agreed that, whatever the policy merits of school choice, a well-designed program would satisfy First Amendment dictates. That certainty emanates from the constitutional text, which does not require the separation of church and state, but prohibits laws "respecting an establishment of religion."12 In a nation in which tax deductions for religious contributions and the G.I. Bill are sacrosanct, the notion that allowing parents to use their children's public education funds at the school of their choice "establishes religion" borders on the absurd. But when modern school choice programs began to proliferate, starting in Milwaukee in 1990, it was far from certain that the U.S. Supreme Court would uphold school choice against First Amendment challenges.13 That doubt emanated from an era of jurisprudence, which reached its apotheosis during the Warren era in the 1960s and 70s, in which the Court took a dim (and confusing) view of the constitutionality of public funds, services, or materials that made their way into religious schools. The most ominous decision was Committee for Public Education and Religious Liberty v. Nyquist,14 in which the Court struck down a variety of "parochial aid" programs.15 Because the aid was restricted to private schools and those who patronized them, the Court concluded that the "primary effect" of those programs was to advance religion in violation of the First Amendment. But the Court left open the question of "whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g. scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. …