School choice may have just taken a turn for the freer. Much freer.
Three decisions from the U.S. Supreme Court and one from Georgia’s highest court, all in late June, could expand the list of choice programs that pass constitutional muster. Those actions just might give some needed momentum to an education movement that has stalled in Georgia in recent years.
Let’s take a look, starting locally. Critics of Georgia’s tax-credit scholarship program have long charged it unconstitutionally directs public dollars to religious schools. Georgia’s Supreme Court unanimously shot down their argument.
The court found the scholarships are not public money, echoing decisions by other state courts and the U.S. Supreme Court. Georgia awards state income-tax credits to those who donate to private scholarship organizations, which in turn select the student recipients, who in turn decide with their families which schools to attend.
“The state controls none of these decisions. Nor does it control the contributed funds or the educational entities that ultimately receive the funds,” Justice Robert Benham wrote for the court, adding for emphasis: “The program does not involve the distribution of public funds out of the state treasury because none of the money involved in the program ever becomes the property of the State of Georgia.”
Importantly, the court also adopted a point made by program advocates: Tax-credit scholarships “might, in fact, create a tax savings by relieving public schools of the burden of educating the students who chose to attend private schools.”
Because the case hinged on the distinction between private donations and public spending, the court didn’t say if a direct state appropriation for private tuition would also be constitutional. That’s where the three U.S. Supreme Court rulings come in.
First, the high court ruled 7-2 that Missouri was wrong to limit its grants for playground building materials to secular schools. That state’s denial of a grant to an otherwise qualified, Lutheran preschool, Chief Justice John Roberts wrote, forces the school to choose: “It may participate in an otherwise available benefit program or remain a religious institution.” That choice, the court’s majority said, violates the First Amendment’s free-exercise clause.
The ruling partially undermines the anti-Catholic Blaine Amendments adopted by many states to block public funding of “sectarian” schools (including Georgia; such language figured into the tax-credit scholarship case). But the ruling’s greater latitude for religious schools doesn’t necessarily extend to programs that are more clearly educational in nature, such as vouchers.
The court may have tipped its hand, however, by sending two cases back to state courts for reconsideration in light of the Missouri case. One was a textbook-lending program in New Mexico. The other was a voucher program in Douglas County, Colorado. In both cases, state courts had relied on Blaine Amendments to rule religious schools and their students were ineligible.
It has been more than a century since Blaine Amendments “born of bigotry” against Catholics, as Justice Clarence Thomas has put it, altered the balance between free exercise and establishment of religion in the states. We might finally be seeing an overdue corrective from the courts, to the great benefit of students and families.
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