Institute for Justice School Choice Litigation Status (12/03)

The Institute for Justice (IJ) is committed to defending school choice programs as they are enacted.   IJ is also embarking on a proactive litigation strategy to remove the state-based barriers upon which choice opponents rely to tie up school choice programs in the courts.   IJ is currently litigating five school choice cases and participating in a sixth as a friend of the court.  

1.  Florida's Opportunity Scholarships Program

Case: Holmes v. Bush.  Current court: District Court of Appeal for the First District, State of

Florida

IJ represents parents who have intervened to help defend Florida's Opportunity Scholarships Program.   The program gives parents in failing public schools the choice of staying in their assigned school, transferring to a non-failing public school, or switching to a private school.   In 1999, teachers' unions and other special interest groups challenged Opportunity Scholarships under both the state and federal constitutions.   Opponents dropped their federal Establishment Clause challenge after the U.S. Supreme Court upheld Cleveland's choice program in Zelman v. Simmons-Harris in 2002. The sole remaining legal issue is whether Florida's Blaine Amendment prevents the state from allowing parents to select a religious private school with their children's scholarships.   Days before the start of the 2002 school year, the trial court struck down the program under the Blaine Amendment.   The state and IJ have appealed that ruling to the Florida Court of Appeals, and the program is continuing during the appeal.   The case was argued in March 2003 and is still awaiting a decision.

2.  Colorado's Opportunity Contract Program

Case: Colorado Ass'n of Parents, Teachers and Students v. Owens.  Current court: Denver District Court

IJ represents families who hope to obtain scholarships under Colorado's new school choice program.   The Opportunity Contract program enables parents of students in 11 Colorado schools districts with at least eight failing schools each to transfer their children to participating private schools.   Because the parents can select religious schools, the plaintiffs claim that Colorado's Blaine Amendment and "compelled support" clause are violated.   They also allege the program violates Colorado's constitutional prohibitions against special legislation and interfering with local control.   Choice opponents challenged the program first on the non-religious claims, and the trial court ruled in December 2003 that although the program does not constitute special legislation, it does violate the local control provision, unconstitutionally removing too much authority for local schooling from district school boards.   (This is contrary to state court approval of a long line of legislative initiatives designed to equalize educational opportunity in Colorado-charter schools, public school choice, magnet schools and special education programs-without fear that they impair the authority of local school districts.)   The trial judge enjoined the state from further action to implement Opportunity Contracts.   IJ is appealing the decision to the Colorado Supreme Court.

3.  Maine's Tuitioning System

Case: Anderson v. Town of Durham.  Current court: Cumberland County Superior Court, State of Maine

This lawsuit challenges Maine's exclusion of the choice of religious schools under Maine's tuitioning system, which allows parents residing in towns without public schools to choose a private school or a public school operated by some other school district for their children's education.   The town school districts then pay tuition on behalf of the students to the selected schools.   For more than a century parents could choose a religious school, but in 1981 the Maine legislature excluded religious schools in the mistaken belief that the Establishment Clause required the exclusion. Despite the U.S. Supreme Court's ruling in Zelman that religious schools do not have to be excluded, Maine has refused to add the religious option back into the program. IJ represents families in tuitioning towns who have chosen to send their children to religious schools and been denied tuition payments.   The case is in discovery in trial court.

4.  Vermont's Tuitioning System

Case: Genier v. McNulty.  Current court: U.S. District Court for Vermont

Similar in many respects to the Maine case, this lawsuit challenges Vermont's refusal to pay tuition to religious schools selected by families in Vermont tuitioning towns.   Like Maine's program, many school districts in Vermont do not operate their own public high schools and instead pay tuition to schools selected by their students' parents.   While the statute does not exclude the option of selecting religious schools, in 1961 the Vermont Supreme Court held that the federal Establishment Clause required their exclusion.   In 1999, that Court held that although it was now clear the Establishment Clause does not require the exclusion of religious schools, the Vermont constitution's "compelled support" clause does.   IJ represents families in tuitioning towns challenging this holding in federal court, on the basis that it violates the federal Free Exercise of Religion Clause as well as the Free Speech Clause and the Equal Protection Clause.   The case is in discovery at the trial court level.

5.  Washington State's Promise Scholarships

Case: Locke v. Davey.  Current court: U.S. Supreme Court

On behalf of itself and several other organizations with an interest in promoting school choice programs, IJ filed an amicus curiae brief supporting theology student Joshua Davey.   The 9th Circuit Court of Appeals ruled that the state of Washington violated Davey's free exercise of religion when it denied him a college scholarship solely because he intended to major in religion taught from a religious perspective.   Washington based its denial on its Blaine Amendment, which it argues establishes a stricter separation of church and state than the federal Establishment Clause.   IJ previously filed an amicus curiae brief supporting Washington's request that the Supreme Court accept the case for review, because IJ hopes that the Court will reject the idea that states may discriminate against the choice of religious options in programs where the students choose which school to attend.   Oral argument was held December 2, 2003, and a decision is expected spring 2004.

6.  Arizona's Scholarship Tax Credits

Case: Winn v. Hobbs.  Current court: U.S. Supreme Court

This lawsuit is a new version of a lawsuit decided in Kotterman v. Killian in which the Arizona Supreme Court upheld the Arizona Scholarship Tax Credit under the First Amendment and the state constitution.   In this lawsuit, the ACLU attacked the same program under the First Amendment in federal court. Once again, IJ has intervened on behalf of the program's beneficiaries.   The federal district court dismissed the lawsuit under the federal Tax Injunction Act, which requires that challenges to taxes must be filed in state court.   The 9th U.S. Circuit Court of Appeals overturned that ruling, and the U.S. Supreme Court accepted review.   A decision is expected no later than June 2004.   If the Court overturns the 9th Circuit decision, the case will be over.   If it sustains the 9th Circuit, the case will return to the district court for trial on the merits.

For more information, go to www.ij.org.