Academic journal article The Review of Litigation

Changing American Schools: The Intersection of Choice and the Constitution

Academic journal article The Review of Litigation

Changing American Schools: The Intersection of Choice and the Constitution

Article excerpt

I. introduction

President George W. Bush's "No Child Left Behind" education plan, as it was originally submitted to the House of Representatives in March 2001, included a proposal to create a limited program for school choice via vouchers that students attending consistently low-performing schools could use as tuition at better-performing public or private schools.1 By the time the bill reached the House floor, however, those portions proposing school choice that included private schools had been removed by committee.2 Two attempts to resurrect the choice proposal with the inclusion of private schools by amendment to the No Child Left Behind Act of 2001 were subsequently rejected by the House.3

While this particular attempt to legislate choice into the school system is noteworthy for its intended national scope, school choice is not a new concept.4 In the last three decades of the twentieth century, several states wrestled with such methods as voucher programs, also called "scholarship" programs, and tax credits or deductions as mechanisms for implementing choice-based reforms.5 Pervasive support for improving the system of educating American children finds its stimulus in the recognition of certain weaknesses, such as the lagging performance of American students as compared to certain foreign counterparts6 and the dual detriments of high attrition and low graduation rates.7

The impetus for a system of choice stems primarily from the basic market theory that choice breeds competition and that competition breeds improvement in the quality of services offered. At its core, this supply-versus-demand argument8 suggests that parents will choose better schools (i.e., higher-performing schools) if that option is available to them. Consequently, lower-performing schools will be forced to either improve educational quality or close their doors. Despite the seeming simplicity of this theory, the implementation of voucher programs has generated a notable amount of litigation, mostly due to the inclusion of private schools, particularly religiously-affiliated private schools, in the matrix of schools available to choice students. Opponents challenge the constitutionality of voucher programs on the basis that they violate the Establishment Clause because they permit use of governmental education dollars to pay for tuition at private, often sectarian, schools.9 Supporters contend, and the United States Supreme Court recently agreed,10 that the intervention of private choice between the state and religious institutions removes any unconstitutional taint.

An interpretation of the Establishment Clause that permits the use of vouchers in programs that include sectarian institutions may be a logical extension of the Court's Establishment Clause jurisprudence. However, the basis for expansion-that private choice alleviates the unconstitutional concerns-is inadequate support for a decision that redesigns the constitutional boundaries of the modern educational landscape. This expansive interpretation is also at odds with other precedent that restricts the intervention of religion in a public educational setting.11 It is at least inconsistent, and arguably illogical, that although it is impermissible to bring religion into taxpayer-funded public schools, it is now permissible to send taxpayer funds to sectarian institutions because the private choice of a parent to so direct those funds has intervened.

Part II of this Note briefly overviews the general characteristics of a voucher program. Part III reviews the evolution of post-1971 Establishment Clause jurisprudence as it applies to schools. Part IV examines the particular implementation characteristics and the procedural progression of litigation concerning Ohio's "Pilot Project Scholarship Program," the constitutional legitimacy of which was recently upheld by the United States Supreme Court.12 Part V discusses the application of case law precedent to the Ohio Scholarship Program. …

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