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A pilot voucher program passes state, federal constitutional muster

As advocates for school choice programsthat empower families with children trappedin poorly performing public schools, teammembers at the Institute for Justice are oftenasked to review school choice legislation toensure that it passes muster under the religionclauses found in both the federal and stateconstitutions. I have reviewed SB 2494 andconclude that it passes the test under both thefederal Establishment Clause and the IllinoisConstitution. The Institute for Justice is a non-prot, public-interest law rm founded in 1991, in part topromote school choice programs as a meansof equalizing opportunity for those childrenenrolled in poorly performing public schools. The rm assists in the designing of schoolchoice programs and, if passed, helps the statedefend them in court by intervening on behalf of those families using the scholarships orother benets such programs provide. We haveparticipated in the defense of every schoolchoice program passed since our inception,including the scholarship case that reachedthe U.S. Supreme Court and resulted in theupholding of Ohio’s Cleveland ScholarshipProgram in 2002 (

Zelman v. Simmons-Harris

, 536U.S. 639). Zelman sets the standards that allschool choice programs must meet to comply with the First Amendment’s EstablishmentClause.Closer to home, the Institute for Justicesuccessfully defended earlier school choicelegislation here in Illinois, when the two Illinoisafliates of the national teachers unionsseparately challenged the constitutionality of anIllinois state tax credit program that providesa modest income tax credit to families whosend their children to private schools and out-of-district public schools. Two trial courts andtwo divisions of the Illinois court of appealsupheld the credit program under both thefederal Establishment Clause and the Illinoisconstitution’s religion clauses, and the IllinoisSupreme Court denied our opponents requeststo review the decision. These cases are

Toney v.Bower

, 744 N.E.2d 351 (Ill. App. 4

Dist. 2001),

appeal denied

, 195 N.E.2d 573 (Ill. 2001), and

Grifth v. Bower

, 747 N.E.2d 423 (Ill. App. 5

Dist. 2001),

appeal denied

, 755 N.E.2d 477 (Ill.2001). Decided the year before

Zelman

camedown from the U.S. Supreme Court,

Toney

and

Grifth

anticipated the analysis and standardsused by the Supreme Court in

Zelman

andremain good law today.Benecial as the Illinois state tax credit hasbeen, it is of little benet to those families whose income is so low that they pay little orno state income tax. These are the very families who stand to gain the most from a schoolchoice scholarship program because theirincome is usually insufcient to enable themto send their children to private schools or tomove to districts with better public schools.Such families are in fact trapped in districts witha high proportion of inadequately performing public schools. Indeed, that the students andtheir families lack the means to pursue effectivealternatives to the public schools is part of why those schools perform so poorly, becausethe captive nature of their populations allowsthe public schools to function without thediscipline that competition brings.

Richard D. Komer

is a Senior Attorney at the Institute for Justice. Tis brief was prepared at the request of the Illinois Policy Institute.

The Jury on School Vouchers

For this very reason, several of the schoolchoice scholarship programs elsewherethroughout the country are, like SB 2494,designed for use in inner city school districts with inadequate public schools. The Clevelandprogram upheld in

Zelman

, the Milwaukeeprogram upheld by the Wisconsin SupremeCourt in 1998, and the Washington, D.C.Opportunity Scholarship Program are allsimilar to the program envisioned by SB 2494. Their success in providing opportunities tofamilies who would be otherwise forced tocontinue to send their children to poorly-performing schools is powerful evidence thatthe Illinois School Choice Program would work in Chicago. The principle purpose of this analysis however,is to determine whether SB 2494 would beconstitutional under the religion clauses of the federal and state constitutions. Based onpast precedent under the federal Constitution,

Zelman

and the cases it relied on, and underthe Illinois Constitution, including

Toney

and

Grifth

, it appears that SB 2494 is plainly constitutional. Indeed, under the approachtaken by the Illinois Supreme Court in its pastreligion cases, in Illinois if a program passesmuster under the federal religion clauses it alsopasses muster under the state Constitution. This approach, known as the “lockstepdoctrine,” interprets the Illinois Constitutionin lockstep with the federal constitutionaljurisprudence. While the U.S. Supreme Court’s EstablishmentClause jurisprudence has evolved greatly overthe years, in a series of cases beginning in1983 with

Mueller v. Allen

(463 U.S. 388) andculminating in 2002 with

Zelman

, the U.S.Supreme Court has set a consistent standardfor programs that provide benets to familiesand allow them a free and independent choiceof where to make use of those benets. Solong as such a program is religiously neutral andbased on true private choice, it does not violatethe Establishment Clause if many or evenalmost all families use their benets to sendtheir children to religious schools. Although inearlier cases predating

Mueller

the Court was notclear that true scholarship programs like thatcontemplated by SB 2494 were constitutional,since

Zelman

that is a settled question. And solong as the Illinois Supreme Court adheres toits longstanding and time-honored approach of construing the Illinois Constitution’s religionclauses in lockstep with the federal standard,then SB 2494 complies with the IllinoisConstitution as well. Appendix A includes a brief two-pagesummary of Illinois case law taken from apublication I co-authored with my colleagueClark Neily entitled “School Choice and StateConstitutions: A Guide To Designing SchoolChoice Programs.” In that publication wereviewed the case law from all 50 states withrespect to school choice scholarship and taxcredit programs, and the excerpt for Illinoisreects our conclusion that both sorts of programs are constitutionally viable in Illinois.Our experience successfully defending Illinois’stax credit program through 2001 supports thisconclusion, and the two decisions we receivedin that defense remain the Illinois courts’most recent precedents on school choice. Accordingly, we believe that whether to enacta program like that contemplated in SB 2494is principally a matter of policy, rather than amatter of constitutionality.

Benecial as the Illinois state tax credit has been, it is of little benet tothose families whose income is so low that they pay little or no state income tax.

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Appendix A

The content below is reproduced from the Institute for Justice publication “School Choice and State Constitutions: A Guide ToDesigning School Choice Programs,” available in full at www.ij.org.