The Jury on School Vouchers
A pilot voucher program passes
state, federal constitutional muster
March 24, 2010
As advocates for school choice programs
that empower families with children trapped
in poorly performing public schools, team
members at the Institute for Justice are often
asked to review school choice legislation to
ensure that it passes muster under the religion
clauses found in both the federal and state
constitutions. I have reviewed SB 2494 and
conclude that it passes the test under both the
federal Establishment Clause and the Illinois
Constitution.
Education Brief
The Institute for Justice is a non-profit, public-
interest law firm founded in 1991, in part to
promote school choice programs as a means
of equalizing opportunity for those children
enrolled in poorly performing public schools.
The firm assists in the designing of school
choice programs and, if passed, helps the state
defend them in court by intervening on behalf
of those families using the scholarships or
other benefits such programs provide. We have
participated in the defense of every school
choice program passed since our inception,
including the scholarship case that reached
the U.S. Supreme Court and resulted in the
upholding of Ohio’s Cleveland Scholarship
Program in 2002 (Zelman v. Simmons-Harris, 536
U.S. 639). Zelman sets the standards that all
school choice programs must meet to comply
with the First Amendment’s Establishment
Clause.
Closer to home, the Institute for Justice
successfully defended earlier school choice
legislation here in Illinois, when the two Illinois
affiliates of the national teachers unions
separately challenged the constitutionality of an
Illinois state tax credit program that provides
Richard D. Komer is a Senior Attorney at the Institute for Justice. This brief was prepared at the request of
the Illinois Policy Institute.
a modest income tax credit to families who
send their children to private schools and out-
of-district public schools. Two trial courts and
two divisions of the Illinois court of appeals
upheld the credit program under both the
federal Establishment Clause and the Illinois
constitution’s religion clauses, and the Illinois
Supreme Court denied our opponents requests
to review the decision. These cases are Toney v.
Bower, 744 N.E.2d 351 (Ill. App. 4th Dist. 2001),
appeal denied, 195 N.E.2d 573 (Ill. 2001), and
Griffith v. Bower, 747 N.E.2d 423 (Ill. App. 5th
Dist. 2001), appeal denied, 755 N.E.2d 477 (Ill.
2001). Decided the year before Zelman came
down from the U.S. Supreme Court, Toney and
Griffith anticipated the analysis and standards
used by the Supreme Court in Zelman and
remain good law today.
Beneficial as the Illinois state tax credit has
been, it is of little benefit to those families
whose income is so low that they pay little or
no state income tax. These are the very families
who stand to gain the most from a school
choice scholarship program because their
income is usually insufficient to enable them
to send their children to private schools or to
move to districts with better public schools.
Such families are in fact trapped in districts with
a high proportion of inadequately performing
public schools. Indeed, that the students and
their families lack the means to pursue effective
alternatives to the public schools is part of
why those schools perform so poorly, because
the captive nature of their populations allows
the public schools to function without the
discipline that competition brings.
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For this very reason, several of the school then SB 2494 complies with the Illinois
choice scholarship programs elsewhere Constitution as well.
throughout the country are, like SB 2494,
designed for use in inner city school districts Appendix A includes a brief two-page
with inadequate public schools. The Cleveland summary of Illinois case law taken from a
program upheld in Zelman, the Milwaukee publication I co-authored with my colleague
program upheld by the Wisconsin Supreme Clark Neily entitled “School Choice and State
Court in 1998, and the Washington, D.C. Constitutions: A Guide To Designing School
Opportunity Scholarship Program are all Choice Programs.” In that publication we
similar to the program envisioned by SB 2494. reviewed the case law from all 50 states with
Their success in providing opportunities to respect to school choice scholarship and tax
families who would be otherwise forced to credit programs, and the excerpt for Illinois
continue to send their children to poorly- reflects our conclusion that both sorts of
performing schools is powerful evidence that programs are constitutionally viable in Illinois.
the Illinois School Choice Program would work Our experience successfully defending Illinois’s
Beneficial as in Chicago. tax credit program through 2001 supports this
conclusion, and the two decisions we received
the Illinois The principle purpose of this analysis however, in that defense remain the Illinois courts’
state tax is to determine whether SB 2494 would be most recent precedents on school choice.
constitutional under the religion clauses of Accordingly, we believe that whether to enact
credit has the federal and state constitutions. Based on a program like that contemplated in SB 2494
been, it is past precedent under the federal Constitution,
Zelman and the cases it relied on, and under
is principally a matter of policy, rather than a
matter of constitutionality.
of little the Illinois Constitution, including Toney and
Griffith, it appears that SB 2494 is plainly
benefit to constitutional. Indeed, under the approach
those families taken by the Illinois Supreme Court in its past
religion cases, in Illinois if a program passes
whose income muster under the federal religion clauses it also
passes muster under the state Constitution.
is so low that This approach, known as the “lockstep
they pay little doctrine,” interprets the Illinois Constitution
in lockstep with the federal constitutional
or no state jurisprudence.
income tax. While the U.S. Supreme Court’s Establishment
Clause jurisprudence has evolved greatly over
the years, in a series of cases beginning in
1983 with Mueller v. Allen (463 U.S. 388) and
culminating in 2002 with Zelman, the U.S.
Supreme Court has set a consistent standard
for programs that provide benefits to families
and allow them a free and independent choice
of where to make use of those benefits. So
long as such a program is religiously neutral and
based on true private choice, it does not violate
the Establishment Clause if many or even
almost all families use their benefits to send
their children to religious schools. Although in
earlier cases predating Mueller the Court was not
clear that true scholarship programs like that
contemplated by SB 2494 were constitutional,
since Zelman that is a settled question. And so
long as the Illinois Supreme Court adheres to
its longstanding and time-honored approach of
construing the Illinois Constitution’s religion
clauses in lockstep with the federal standard,
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Appendix A
The content below is reproduced from the Institute for Justice publication “School Choice and State Constitutions: A Guide To
Designing School Choice Programs,” available in full at www.ij.org.
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