As advocates for school choice programs that empower families with children trapped in poorly performing public schools, team members at the Institute for Justice are often asked to review school choice legislation to ensure that it passes muster under the religion clauses found in both the federal and state constitutions. I have reviewed SB 2494 and conclude that it passes the test under both the federal Establishment Clause and the Illinois Constitution.
The Institute for Justice is a non-profit, public-interest law firm founded in 1991, in part to promote school choice programs as a means of equalizing opportunity for those children enrolled in poorly performing public schools. The firm assists in the designing of school choice programs and, if passed, helps the state defend them in court by intervening on behalf of those families using the scholarships or other benefits such programs provide. We have participated in the defense of every school choice program passed since our inception, including the scholarship case that reached the U.S. Supreme Court and resulted in the upholding of Ohio’s Cleveland Scholarship Program in 2002 (Zelman v. Simmons-Harris, 536 U.S. 639). Zelman sets the standards that all school choice programs must meet to comply with the First Amendment’s Establishment Clause.
Closer to home, the Institute for Justice successfully defended earlier school choice legislation here in Illinois, when the two Illinois affiliates of the national teachers unions separately challenged the constitutionality of an Illinois state tax credit program that provides a modest income tax credit to families who send their children to private schools and out-of-district public schools. Two trial courts and two divisions of the Illinois court of appeals upheld the credit program under both the federal Establishment Clause and the Illinois constitution’s religion clauses, and the Illinois Supreme Court denied our opponents requests to review the decision. These cases are Toney v. Bower, 744 N.E.2d 351 (Ill. App. 4th Dist. 2001), appeal denied, 195 N.E.2d 573 (Ill. 2001), and Griffith v. Bower, 747 N.E.2d 423 (Ill. App. 5th Dist. 2001), appeal denied, 755 N.E.2d 477 (Ill. 2001). Decided the year before Zelman came down from the U.S. Supreme Court, Toney and Griffith anticipated the analysis and standards used by the Supreme Court in Zelman and remain good law today.
Beneficial as the Illinois state tax credit has been, it is of little benefit to those families whose income is so low that they pay little or no state income tax. These are the very families who stand to gain the most from a school choice scholarship program because their income is usually insufficient to enable them to send their children to private schools or to move to districts with better public schools. Such families are in fact trapped in districts with a high proportion of inadequately performing public schools. Indeed, that the students and their families lack the means to pursue effective alternatives to the public schools is part of why those schools perform so poorly, because the captive nature of their populations allows the public schools to function without the discipline that competition brings.
For this very reason, several of the school choice scholarship programs elsewhere throughout the country are, like SB 2494, designed for use in inner city school districts with inadequate public schools. The Cleveland program upheld in Zelman, the Milwaukee program upheld by the Wisconsin Supreme Court in 1998, and the Washington, D.C. Opportunity Scholarship Program are all similar to the program envisioned by SB 2494. Their success in providing opportunities to families who would be otherwise forced to continue to send their children to poorly-performing schools is powerful evidence that the Illinois School Choice Program would work in Chicago.
The principle purpose of this analysis however, is to determine whether SB 2494 would be constitutional under the religion clauses of the federal and state constitutions. Based on past precedent under the federal Constitution, Zelman and the cases it relied on, and under the Illinois Constitution, including Toney and Griffith, it appears that SB 2494 is plainly constitutional. Indeed, under the approach taken by the Illinois Supreme Court in its past religion cases, in Illinois if a program passes muster under the federal religion clauses it also passes muster under the state Constitution. This approach, known as the “lockstep doctrine,” interprets the Illinois Constitution in lockstep with the federal constitutional jurisprudence.
While the U.S. Supreme Court’s Establishment Clause jurisprudence has evolved greatly over the years, in a series of cases beginning in 1983 with Mueller v. Allen (463 U.S. 388) and culminating in 2002 with Zelman, the U.S. Supreme Court has set a consistent standard for programs that provide benefits to families and allow them a free and independent choice of where to make use of those benefits. So long as such a program is religiously neutral and based on true private choice, it does not violate the Establishment Clause if many or even almost all families use their benefits to send their children to religious schools. Although in earlier cases predating Mueller the Court was not clear that true scholarship programs like that contemplated by SB 2494 were constitutional, since Zelman that is a settled question. And so long as the Illinois Supreme Court adheres to its longstanding and time-honored approach of construing the Illinois Constitution’s religion clauses in lockstep with the federal standard, then SB 2494 complies with the Illinois Constitution as well.
Appendix A (viewable below) includes a brief two-page summary of Illinois case law taken from a publication I co-authored with my colleague Clark Neily entitled “School Choice and State Constitutions: A Guide To Designing School Choice Programs.” In that publication we reviewed the case law from all 50 states with respect to school choice scholarship and tax credit programs, and the excerpt for Illinois reflects our conclusion that both sorts of programs are constitutionally viable in Illinois. Our experience successfully defending Illinois’s tax credit program through 2001 supports this conclusion, and the two decisions we received in that defense remain the Illinois courts’ most recent precedents on school choice. Accordingly, we believe that whether to enact a program like that contemplated in SB 2494 is principally a matter of policy, rather than a matter of constitutionality.