After High Court Victory ij Goes on the Offense

By Richard Komer

With the recent U.S. Supreme Court victory in Zelman v. Simmons-Harris upholding the constitutionality of including the choice of religious schools in the Cleveland scholarship program, it is time to move into the next stage of the battle for parental choice in education. While IJ will continue to vigorously defend parental choice programs passed by forward-thinking state legislatures, such as Florida's Opportunity Scholarship Program, Zelman reopens the possibility of taking the battle to our opponents. IJ is launching a new wave of lawsuits aimed at fulfilling the promise of Zelman.

First, IJ renews its efforts to ensure that parents have the option of choosing religious schools through existing scholarship-type programs. In our view, inclusion of this option is critical to the success of inner-city parental choice programs and to vindicating the free speech and free exercise rights of participants in choice programs. IJ filed suit in Maine and will soon do the same in Vermont to restore this option to parents participating in those states' parental choice programs. (In Maine and Vermont, school districts can choose to pay tuition for all of their resident students to attend the school of their choice, in lieu of operating a public high school.)

The Maine lawsuit seeks to overturn the Maine Supreme Court's decision in Bagley v. Raymond School Department, in which the court held that the Establishment Clause prohibited allowing parents to select a religious school. The Attorney General of Maine does not agree with IJ's view that Zelman conflicts with that conclusion, and has ordered the Education Department to continue to tell tuitioning districts not to pay tuition to religious schools.

IJ will also file a new lawsuit against Vermont, whose Supreme Court held that tuitioning towns could not pay tuition to religious schools because that compelled Vermont taxpayers to support religious ministries without their consent in violation of a provision of the Vermont Constitution. Similar language to the "compelled support" language of the Vermont Constitution is found in 28 other states' constitutions, and IJ will attempt to head off efforts by our opponents to use the Vermont ruling as a precedent in those other states. IJ will file the new lawsuit in federal court, alleging that Vermont's interpretation infringes upon federal constitutional rights under the free speech, free exercise, establishment and equal protection clauses.

In addition, IJ will pursue lawsuits attacking overbroad interpretations of the other common state constitutional religion provision, the so-called "Blaine Amendments," found in 38 states' constitutions. These provisions, which prohibit appropriations to "sectarian institutions," have been interpreted by a number of state supreme courts to exclude religious schools from participating in programs the U.S. Supreme Court has ruled can include religious schools. Those courts view aid to families choosing religious schools as the same as aid to the schools themselves, exactly the interpretation of the establishment clause that Zelman rejected. Opponents of parental choice continue to use these interpretations to thwart parental choice programs, such as in Florida, where the trial judge bought their argument.

IJ intends to file several lawsuits seeking to have courts overrule these overbroad interpretations of the state Blaine Amendments. Not only is there a growing recognition that the Blaine Amendments themselves originated in religious prejudice against Catholics, as recognized, for example, in Justice Thomas' plurality opinion in Mitchell v. Helms and the Arizona Supreme Court's decision in Kotterman v. Killian, but the Ninth Circuit recently held in Davey v. Locke that the State of Washington's exclusion of a student pursuing a theology degree from a scholarship program pursuant to its interpretation of its Blaine Amendment violated his federal constitutional rights. IJ plans to expand this precedent through an additional case in Washington.

We will also file cases in other states outside the Ninth Circuit that interpret their Blaine Amendments so broadly that they interfere with federal rights. Ultimately, we expect that splits of authority will occur among the appellate courts, and we hope the U.S. Supreme Court will step in to resolve the conflict, as it did in Zelman. When that day comes, we are confident that opponents of parental choice programs will find that the second string to their legal bow has also been untied, and that they will be forced to address parental choice programs as a policy matter, and not a legal one.

Richard Komer is an Institute for Justice senior attorney.


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