Several attacks on school choice claim that using state funds for vouchers that might go to private schools is unconstitutional. Here are some facts and legal analysis on that issue.
Federal Constitution. The U.S. Supreme Court upheld the constitutionality of the Cleveland school voucher program in Zelman v. Simmons-Harris (2002). The Supreme Court found that “a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”
State Constitution. Pennsylvania case law permits the transfer of funds to parents for the purposes of exercising school choice. In other words—and similar to the findings of the U.S. Supreme Court—because scholarships are given to parents who then make school choices, this money is not being given directly to private schools.
The Pennsylvania State Constitution states, “No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school.” General Fund revenue does not meet this definition as it is not raised for the purposes of funding public education. School district property taxes are raised for this purpose, that is voucher proposals involve only state funding for private schools, and not local tax revenue.
In fact, Pennsylvania’s General Fund already includes line items directly funding private school students.
The Institute for Justice/ALEC report School Choice and State Constitutions reviews other provisions in the Pennsylvania constitution as well as case law, concluding:
Both tax credit and voucher programs are school choice options for Pennsylvania. The Pennsylvania Constitution contains a Compelled Support Clause and a Blaine Amendment. The latter restricts the use of funds “raised for the public schools” but can be avoided entirely by funding vouchers from other government revenue. State case law demonstrates a strong adherence to federal Establishment Clause precedent and includes a distinction between “appropriations” and “payments for services rendered,” which should ensure voucher legislation’s compliance with the Blaine Amendment.
That is, legislators could not “appropriate” money to any parent or private school, but can create a program that awards funds by formula for services, like education (or health care, or social services, or economic development, which applies to many current state programs).
The educational establishment is doing everything they can to ensure they don’t lose their monopoly status. Here is testimony of Richard Comer, senior attorney for the Institute of Justice, and Phil Murren of the law firm Ball, Murren and Connell, discussing the constitutionality of school choice in Pennsylvania.
This is not the first time that school choice opponents have challenged the constitutionality of various programs. Gov. Ridge’s proposed Educational Opportunity Grants also received attacks of unconstitutionality. A scholarly constitutional analysis by Susan Fiorentino, Esq., and Dr. Colleen Sheehan concluded that:
The Educational Opportunity Grants to children clearly comports with the public benefit test set forth by both the framers of the Pennsylvania Constitution and subsequent rulings by the Pennsylvania Supreme Court.
For a two-page analysis of Pennsylvania’s constitutional provisions regarding school choice, see below.