Institute for Justice Statement:
D.C. School Choice Bill Is Constitutional
WEB RELEASE: September 26, 2003
CONTACT: Lisa Knepper; John Kramer (703) 682-9320
[School Choice]
Washington, D.C.—The following is the statement by Clint Bolick, vice president of the Institute for Justice, on U.S. Sen. Arlen Specter’s comments questioning the constitutionality of the D.C. school choice bill currently before the U.S. Senate. The Institute for Justice is the Washington, D.C.-based public interest law firm that has defended the constitutionality of school choice programs across the nation, including the Cleveland school choice program at issue in Zelman v. Simmons-Harris.
"U.S. Sen. Arlen Specter’s analysis of the constitutionality of the D.C. school choice bill is incorrect. There is no question that the program is constitutional under the U.S. Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, as well as two decades of prior precedents."
"Sen. Specter’s analysis is political, not legal. This program is religiously neutral and advances the profound constitutional obligation of equal educational opportunities."
"The Court in Zelman described numerous facets of the Cleveland program that were at issue. However, it emphasized that its decision was not limited to a program with those identical features. Rather, a program is constitutional if it (1) funds reach religious schools only upon the independent decisions of parents; and (2) religious schools are only one among multiple educational options. This program fully satisfies those criteria."
"With regard to Sen. Specter’s specific points:
- In Cleveland, though suburban public schools were invited to participate in the program, none did. The Court looked to choice available to Cleveland schoolchildren, which included public magnet and charter schools. Here, too, D.C. students have a wide range of public educational choices. Moreover, while in Cleveland almost all the children in the choice program were attending religious schools, in D.C., many nonsectarian schools have agreed to participate, and the scholarship amount ($7,500 versus $2,500 in the Cleveland program at the time) is more than adequate to ensure nonsectarian private school participation.
- The issue of a tuition cap is irrelevant in light of the test set forth by the Court. But in any case, again the amount of the scholarship is adequate to cover tuition at many nonsectarian schools, and to encourage the creation of new ones.
- The policy regarding religious school employees was set by Congress in Title VII of the Civil Rights Act of 1964. Cleveland’s program does not alter that policy, nor was that a factor in the Zelman decision. The D.C. bill does prohibit discrimination against students and requires a random admission process.
"As proof of the broad applicability of the Zelman decision, the teachers’ unions have dropped the First Amendment claim against Florida’s school choice program and did not raise it against the Colorado Opportunity Contract program. Colorado’s program likewise does not encompass public school choices, nor does Milwaukee’s, which was upheld against First Amendment challenge. Both programs operate in the context of a wide array of public school choices."
In addition to helping win a victory in the U.S. Supreme Court for school choice when it represented parents participating in Cleveland’s school choice program, IJ also successfully defended vouchers in Milwaukee and tax credits in Illinois and Arizona. IJ is currently defending Florida’s groundbreaking Opportunity Scholarships program and Colorado’s Opportunity Contract program and is fighting state-based barriers to choice in Maine and Vermont.