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2004 was a significant year for development of school voucher programs and legal challenges to those programs. The verdict is still out on whether school voucher programs1 represent a serious competitive threat to the charter school industry. Unlike charter school legislation2, voucher programs have faced ongoing constitutional challenges.3
Prior to 2004, Wisconsin and Ohio’s voucher programs survived constitutional challenges.4 In 2004, Colorado and Florida’s voucher programs were found to be unconstitutional.5 The 2004 decisions are significant because the programs in Colorado and Florida were statewide. 6 The programs in Wisconsin and Ohio are currently restricted to select school districts.7 Therefore, the potential for competition with charter schools in Colorado and Florida was much greater than for Wisconsin and Ohio. If state voucher programs are found constitutional, charter schools will compete with private schools and religious schools. Charter schools will compete for students participating in choice programs and for scarce public funding. In most states, legislation, case law, or an attorney general opinion defines charter schools as public schools and public entities8, and requires them to be nonsectarian in all programs and operations.9 In contrast, most states permit vouchers to be used at private schools and religious schools.10 |
The Court identified three requirements for voucher programs to satisfy the Establishment Clause:
[1] where a government aid program is neutral with respect to religion, and [2] provides assistance directly to a broad class of citizens who, in turn, [3] direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.13
Before applying the standard, the Court recognized that the voucher program is part of “…a broader undertaking by the State to enhance the educational options of Cleveland’s schoolchildren.”14 For the broader effort, the Court pointed out that the voucher program only added one more option to the options of charter schools and magnet schools.15
Following Zelman, some voucher statutes were drafted to directly incorporate the above requirements.16 However, the Zelman decision did not open up the floodgates for expansion of state voucher programs. Instead, constitutional challenges merely shifted from the United States Constitution to state constitutions.17
Notwithstanding the continuing challenges of state voucher programs, Congress passed the DC School Choice Incentive Act of 2003 (the “Act”) on January 30, 2004. The Act created a 5-year pilot program for funding additional school choice for low-income children in Washington D.C.18 Eligible students may use the scholarships (i.e. vouchers) to attend any private school in the District of Columbia19, even if it is a religiously affiliated school.20
If state voucher programs survive legal challenges, Congress could expand its pilot program to provide additional funding for the programs. The 2004 Colorado and Florida cases are briefly reviewed below.
On June 28, 2004, the Colorado Supreme Court decided the case of Owens v. Colorado Congress of Parents. Opponents of Colorado’s voucher program raised 8 different state constitutional arguments in the trial court.21 The trial court held that the program was unconstitutional based on one of the arguments, and constitutional based on another argument.22 It then dismissed the remaining arguments as moot.23 The appeal to the Colorado Supreme Court only addressed the finding that the program was unconstitutional.
The Supreme Court upheld the trial court’s decision that the voucher program was unconstitutional. Both courts held that the program violated a constitutional requirement of local control of public instruction.24 The Supreme Court rejected the defendants’ argument that “the program does not impact a school district’s control over instruction because the students participating in the program leave the district to attend private school.”25 The defendants claimed that the district was no longer obligated to instruct students who participated in the voucher program.26
The Supreme Court explained that the constitutional requirement was not restricted to “control over instruction per se.”27 The Court held that local control also means control over tax revenues raised locally for public instruction.28 The Court concluded that Colorado’s voucher program was unconstitutional because it required districts to pay local tax revenues to parents participating in the program.29
The Court also noted that the state could implement an education program without local control under some circumstances. To circumvent local control, the state must pay for such programs entirely from the state controlled Public School Fund.30 The Court concluded, “If the General Assembly wants to change this fundamental structure, it must either seek to amend the constitution or enact legislation that satisfies the mandates of the Colorado Constitution.”31
Obviously, the easiest way for Colorado to implement a revised program is to fund it entirely from the state controlled Public School Fund. It is noteworthy that expanded federal funding could offset the loss of local funds. However, funding is not the only remaining obstacle. If Colorado reenacts its voucher program to meet the local control requirement, it is likely that the constitutional arguments not yet addressed would be raised again.
On November 12, 2004, the First District Court of Appeal decided the case of Bush v. Holmes. The Court held that Florida’s Opportunity Scholarship Program (OSP) (i.e. voucher program) violates the Florida Constitution, even though the program meets the Zelman standard.32 It specifically held that the Florida Constitution is more restrictive than the Establishment Clause in the United States Constitution.33 The Court explained that Florida’s more restrictive provision34 prohibits state aid given to any sectarian institution.35
In applying the no-aid provision to the OSP, the Court rejected successful arguments made on behalf of voucher programs in other states. For example, the Court rejected an argument that the OSP did not aid sectarian schools because it “gives parents and guardians a choice as to which school to apply a tuition voucher.”36 The Court held that “[b]ecause of the broad language of the no-aid provision, prohibiting the use of state revenues ‘directly or indirectly’ in aid of secular institutions, such an indirect path for the aid does not remove the OSP from the restrictions of the no-aid provision.”37
The Court also rejected the argument that the OSP does not benefit sectarian schools or only provides incidental benefits.38 The state argued that, “because the record in this case shows that voucher payments to schools do not cover the full cost of educating the student and the ‘shortfall’ in the cost is subsidized by the school or another source, the voucher payments cannot constitute ‘aid’ as a matter of law.”39 The Court held that the test is not whether the schools would cease to operate without OSP funds. Instead, the test is whether the funds assist the schools in any meaningful way.
The Court concluded that the “entire education mission of these schools, including the religious component, is advanced and enhanced by the additional, financial support received through operation of the [OSP].”40 The Court further held that the OSP violates the no-aid provision even if it could be demonstrated that the aid does not advance the religious component. In other words, the fact that sectarian schools receive state aid is enough to find that the OSP is unconstitutional.
As required by law, the Court certified the constitutional question for further review by the Florida Supreme Court.41 If the Florida Supreme Court affirms the First District Court of Appeal’s decision, the OSP could be amended to exclude sectarian schools. In its decision, the First District noted that “…the no-aid provision does not create a constitutional bar to the payment of an OSP voucher to a non-sectarian school.”42 The Court also noted that “…nothing in the Florida no-aid provision would create a constitutional bar to state aid to a non-profit institution that was not itself sectarian [or, at least, not pervasively sectarian], even if the institution is affiliated with a religious order or religious organization.”43
Excluding sectarian schools from voucher programs could be significant for charter schools. Competition for students and scarce public funds would be more limited than if sectarian schools could participate. For existing voucher programs, students and parents have overwhelmingly chosen sectarian schools.44 The scope of competition will be decided on a state-by-state basis.
Of course, charter schools have always competed with traditional public schools. So why be concerned with private schools entering the competition for public funding? The short answer is that voucher programs do not hold private schools to the same level of accountability as charter school programs do for charter schools.45 Competition without equal accountability will never be fair.
Keith Layton is a charter school attorney at Layton Law, pllc and an in-house attorney with ReSolutions Education Services Provider, Inc. He is licensed to practice law in the states of Arizona and Ohio. In addition to a Juris Doctor degree, Mr. Layton has a Master of Education degree in Educational Psychology and a Master of Business Administration degree. He has over 12 years of business and legal experience in recently deregulated or privatized industries. Mr. Layton may be contacted at keith@laytonlaw.com.
Endnotes:
1 Note that some state voucher programs are not true programs of school choice. See e.g. Bagley v. Raymond School Dept., 1999 ME 60, 728 A.2d 127 (Me 1999) (Maine’s education tuition program is only available if a school district does not maintain a secondary school or does not contract for secondary school privileges. The Maine Supreme Court also held that exclusion of religious schools does not violate the free exercise, establishment or equal protection clauses of the U.S. Constitution.); See also 16 Vermont Statutes Annotated §§ 822 and 824 (districts that do not maintain elementary or high schools may pay tuition at independent schools; but see Chittenden Town School Dist. V. Dep’t of Educ., 169 Vt. 310, 311, 738 A.2d 539 (Vt. 1999) (finding 16 Vermont Statutes Annotated §§ 822 and 824 violated the state constitution because they provide state aid to sectarian schools “in the absence adequate safeguards against the use of such funds for religious worship”).
2 But see e.g. In Re Grant of the Charter School Application, 164 N.J. 316, 329, 753 A. 2d 687 (N.J. 2000) (rejected an equal protection facial challenge, but required case-by-case analysis of racial impact a proposed charter school has on a public school district); Shelby School v. Az. St. Bd. of Ed., 192 Ariz. 157, 962 P.2d 230 (Ariz. Ct. App. 1998) (rejected constitutional challenges to administrative review of a charter school application; the challenges were based on alleged violations of federal and state constitutional protections of due process, free exercise, free association, privacy rights, and equal protection); Porta v. Klaghole, 19 F. Supp.2d 290 (D.N.J. 1998) (holding that a charter school leasing space from a church is not a per se violation of the Establishment Clause); Council of Orgs. & Others for Ed. About Parochiaid, Inc. v. Governor, 455 Mich. 557, 566 N.W.2d 208 (Mich. 1997) (rejected constitutional challenges based on separation of powers and improper delegation of legislative powers); Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996) (rejected an equal protection challenge to Colorado’s charter school legislation).
3 See e.g. Bush v. Holmes, No. 1D02-3160 at 2-3 (Fla.App. 1 Dist. 2004), aff’d en banc (November 12, 2004) (noting that in the first appeal the court reversed on one constitutional issue (see endnote 11 infra) and remanded on remaining issues; while remand was pending, Zelman (see endnote 4 infra) was decided; federal constitutional challenge was dismissed, but state constitutional challenges were continued).
4See Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602 (Wis. 1998) (rejecting (1) Establishment Clause challenges under federal and state Constitutions, (2) challenge under the state constitution regarding requirement for a uniform system of public education, and (3) challenge under state constitution regarding requirement for public funds to be spent for public purpose, (4) equal protection challenge under the federal constitution), reconsideration denied, modification granted, 255 Wis.2d 24, 647 N.W.2d 816 (Wis. 2002) (excluding individual defendants from sanctions order); Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L. Ed. 2d 604 (2002) (holding that Ohio’s voucher program does not violate Establishment Clause of US Constitution).
5 Owens v. Colo. Cong. Of Parents, No. 03SA364 (Colo. 2004) (holding Colorado’s Pilot Program violates state Constitution’s requirement for local control); Bush v. Holmes, supra (holding Florida Opportunity Scholarship violates state constitution’s no-aid clause).
6 See Colorado Revised Statute §§ 22-56-103(10)(a)(1) (district with at least 8 failing schools must participate) and 22-56-104(1)(b) (2003) (any district may voluntarily participate); but see Colorado Revised Statute §§ 22-56-104(5)(a)(I)-(IV) (enrollment caps as percentage of district’s total student population); see also Florida Statute § 229.0537 (1999) (school districts receiving a performance grade of “F” in 2 of the last 4 years must participate) (now codified as Florida Statute § 1002.38(3)(b) (2004)).
7 See Wisconsin Statute § 119.23(2)(a)(2) (2004) (eligible students are students enrolled in Milwaukee school district during the previous school year); Ohio Revised Code § 3313.975(A) (any school district that is or ever has been under a federal court order requiring supervision and operational management by the state superintendent; the only district qualifying is the Cleveland City School District).
8 See e.g. King v. U.S., 53 F. Supp.2d 1056, 1069 (D. Colo. 1999) (a charter school is a public entity because it is an agency, instrumentality and political subdivision of a school district); Colorado Revised Statute § 22-30.5-104(1) (2004) (a charter school shall be a public school); Ariz. Op. Atty. Gen. No. I95-10 (1995) (charter schools are public bodies for purposes of Public Records Law and Open Meetings Law); Arizona Revised Statute § 15-101(3) (charter school means a public school established by contract with a sponsor); Florida Statute § 1002.33(1) (2004) (“All charter schools in Florida are public schools.”).
9 See e.g. Colorado Revised Statute § 22-30.5-104(1) (2003) (“A charter school shall be a public, nonsectarian, nonreligious, non-home-based school which operates within a public school district.”); Arizona Revised Statute § 15-183(E)(2) (2004) (“The charter of a charter school shall ensure…[t]hat it is nonsectarian in its programs, admission policies and employment practices and all other operations.”); Florida Statute § 1002.33(9)(a) (2004) (“A charter school shall be nonsectarian in its programs, admission policies, employment policies and operations.”).
10 See endnote 1 supra; See also e.g. Wisconsin Statute § 119.23(2)(a) (2004) (vouchers may be used at any private school located in Milwaukee; but see also Wisconsin Statute § 119.23(7)(c) (2004) (private school may not require participation in religious activity if parent or guardian opts out); Ohio Revised Code § 3313.976 (2004) (vouchers may be used at private schools within the Cleveland City School District and at public schools adjacent to the district); but see also Ohio Revised Code § 3313.976(A)(6) (the school cannot “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.”); Florida Statutes §§ 1002.38(4) and 1002.39(4) (2004) (private schools are eligible for both voucher programs even if they are sectarian; but see Florida Statutes §§ 1002.38(4)(c) and (e), and 1002.39(4)(c), and (e) (2004) (requiring private schools to not discriminate and to accept scholarship students on a random and religious-neutral basis); see also § 1002.38(4)(J) (must agree to not require professing a specific ideological belief, to pray or to worship); Colorado Revised Statute § 22-56-106 (2003) (vouchers may be used for nonpublic schools; but see Colorado Revised Statute §§ 22-56-106(b) and (c) (2003) (requiring nonpublic schools to (1) “not discriminate against eligible children in admissions, dismissals, or other rights or privileges of parents or eligible children, on the basis of race, color, religion, national origin, or disability”; and (2) “not advocate or foster unlawful behavior or teach hatred of a person or a group.”).
11 See endnotes 4 and 5; see also Bush v. Holmes, 767 So. 2d 668, 675 (Fla. 1st DCA 2000) (holding Florida Opportunity Scholarship does not violate state Constitution’s requirement for a uniform public education system); Simmons-Harris v. Goff, 86 Ohio St.3d 1, 711 N.E.2d 203 (Ohio 1999) (holding that Ohio’s voucher program violated state Constitution’s one-subject rule).
12 Zelman,536 U.S. at 662-663.
13 Zelman, 536 U.S. at p. 652.
14 Id. at p. 647.
15 Id.
16 See e.g. Colorado Revised Statute § 22-56-101(2)(c) (2003) (the voucher program “[m]eets the standards set forth in…Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L. Ed. 2d 604 (2002)…”); DC School Choice Incentive Act of 2003, Pub. L. No. 108-199 of 2003, Title III, Sec. 302(4) [January 30, 2004] (conforms to the standards in Zelman, supra).
17 See endnote 5, supra.
18 DC School Choice Incentive Act of 2003, Pub. L. No. 108-199 of 2003, Title III, Sec. 302(7) [January 30, 2004].
19 Id. at Sec. 307(a)(1).
20 Id. at Sec. 308(d).
21 The opponents argued that the voucher program violates (1) prohibition against special legislation, (2) requirement of local control, (3) free exercise of religion, (4) separation of church and state, (5) establishment clause, (6) no-aid, (7) prohibition on restrictions of use of income from the public school fund, and (8) requirement of a uniform system of public education. Owens v. Colo. Congress of Parents, No. 03CV3734, unreported, at 4-5 (2003).
22 Id. at 15 (constitutional under number one in endnote 21 supra, and unconstitutional under number 2).
23 Id.
24 Only 6 states have a constitutional requirement for local control of public instruction. Owens, No. 03SA364 at 3 (citation omitted).
25 Id. at 2.
26 Id.
27 Id. at 6.
28 Id.
29 Id., citing Colorado Revised Statutes §§ 22-56-108(3) and (4)(a) (2003).
30 Id., citing Craig v. People ex rel. Hazzard, 89 Colo. 139, 148, 299 P. 1064, 1067 (1931).
31Id. at 6.
32 Bush, No. 1D02-3160 at 17.
33 Id.; see also Id. at 6-7 and footnotes 7 and 8 at 27-28 (discussing the history of “Blaine Amendments” in state constitutions, which provide greater restrictions than the Establishment Clause; “The primary purpose of these amendments to the various state constitutions was to bar the use of public funds to support religious schools”; approximately 30-35 states have such provisions; also noting that Florida’s “no-aid” provision is more restrictive than most states’ Blaine Amendments).
34 The Court reviewed the legislative history of Florida’s constitution. The Court found that the legislature and people of the State intended to impose greater restrictions than the Establishment Clause by adding a “no-aid” provision. It is irrelevant whether one conceptualizes the no-aid provision as part of Florida’s Establishment Clause or an entirely different clause. See Id. at 9-10.
35 Id. at 10.
36 Bush, No. 1D02-3160 at 10-11; Cf. Jackson, 218 Wis. at 876-884 (The Wisconsin Supreme Court held that paying aid directly to parents rather than the sectarian school satisfied the no-aid (i.e. the “benefits clause”) provisions of the state constitution. The Court noted that the program must be neutral between sectarian and nonsectarian alternatives even if third parties decide how to use the public funds.); In Bush, supra, the Court noted that “[t]he Florida no-aid provision…is drafted to be substantially more restrictive than the ‘benefits clause’ in the Wisconsin Constitution. First, the Wisconsin provision lacks a prohibition on both direct and indirect benefits. Second, the prohibition in the Wisconsin Constitution does not expressly bar benefit to all ‘sectarian institutions,’ as does Florida’s no-aid provision.” Bush, No. 1D02-3160 at 19-20.
37 Bush, No. 1D02-3160 at 10-11.
38 Cf. Jackson, 218 Wis. at 879 (The Wisconsin Supreme Court noted that “[t]he crucial question, under [Wisconsin’s Establishment Clause], as under the [federal] Establishment Clause, is ‘not whether some benefit accrues to a religious program, but whether its principal or primary effect advances religion.’” (citations omitted). The Court then concluded that Wisconsin’s voucher program does not have the primary effect of advancing religion.).
39 Bush, No. 1D02-3160 at 11.
40 Id.
41 Id. at 25 (“Under the Florida Constitution, the Florida Supreme Court possesses the jurisdiction to review our decision here because we are declaring invalid a state statute. [citations omitted]. Additionally, the issue presented here is both one of first impression in Florida and of great public importance.”).
42 Id. at 11.
43 Id. at 20 (Note that the language implies that faith-based or community-based organizations may be able to operate nonsectarian schools and receive OSP funds.).
44 See e.g. Zelman, 536 U.S. at 647 (In the 1999-2000 school year, 82% of participating private schools were religiously affiliated, and 96% of the participating students were enrolled in religiously affiliated schools.); Bush, No. 1D02-3160 at 12 (“Evidence of record demonstrates, for example, that during the OSP’s first three years, ninety percent of the students were enrolled in a school operated by the Diocese of Pensacola-Tallahassee, a unit of the Catholic Church.”); Jackson, 218 Wis.2d at 848 (In 1995, the Wisconsin Legislature removed the limitation that participating private schools be nonsectarian. In the 1994-95 school year, 800 students participated. In the 1995-96 school year, the number increased to 1,600.).
45 See e.g. Wisconsin Statute § 119.23(4) and (5) (2004) (only requiring participating private schools to comply with 42 United States Code § 2000d and all health and safety laws or codes that apply to public schools); Ohio Revised Code § 3313.977(B) (“Notwithstanding division (A) of this section, except where otherwise prohibited by federal law, a registered private school may elect to admit students of only one gender and may deny admission to any separately educated handicapped student.”); Ohio Revised Code § 3313.976(C) (“The state superintendent shall approve providers who appear to possess the capability of furnishing the instructional services they are offering to provide.”); Florida Statutes §§ 1002.38 and 1002.39 (private schools may not have to accept students with disabilities under the Opportunity Scholarship Program because of the separately enacted John M McKay Scholarships for Students with Disabilities Program); Cf. Arizona Revised Statutes §§ 15-183(E)(3) and (7) (requiring charter schools to provide a comprehensive program of instruction, and to comply with all federal and state laws relating to the education of children with disabilities in the same manner as a school district).
