Crash course on constitutionality of school choice

Now that Gov. Scott Walker has announced plans to expand the school choice program, we are hearing gravely intoned “concerns” about the program’s constitutionality.

These are expressed, not as claims that school choice violates the state or federal constitution, but as the vague raising of “questions” and identification of “issues.”

There is a reason for that ambiguity. The fact is that there are no questions and there is no issue regarding the constitutionality of choice expansion. Whatever one thinks of the policy of school choice — and we are strongly in favor — there is no question that it is constitutional.

The centerpiece of Walker’s education agenda is the expansion of the school choice program based upon a school district’s DPI-issued report card. By providing more families with a publicly funded voucher, the plan will give more parents the freedom to choose which school is best for their child.

But while the policy of school choice can — and should — be debated, the constitutionality of it has, so far, been unequivocally upheld by both the United States and Wisconsin supreme courts.

First off, it is constitutional for choice vouchers to go to religious schools. Both the United States and Wisconsin supreme courts have held the constitutional separation of church and state is not violated when the school choice program is neutral toward religion, meaning when a voucher is made available to parents who are free to use it at either secular or sectarian schools. The purpose of the program is not to advance religion, but to allow families to choose what they believe is the best educational option for their children. It is parents — and not the state — who decide whether that option is religious or nonreligious.

The Wisconsin Constitution also requires that all public “district schools” be as uniform as possible and free to all. Opponents of school choice contend that because private schools in the choice program can be funded by public money, these schools should be treated as public schools and therefore, subjected to the same uniform laws, such as being free, nonreligious, unionized and heavily regulated.

But the Wisconsin Supreme Court has long rejected that argument. It has held that simply giving public money to parents who, in turn, direct it to choice schools does not automatically turn those private schools into public schools. The same principle holds true for a doctor who treats patients on Medicare or a private university with students who receive government scholarships. No one would think that the doctor or college have become organs of the state.

Choice schools are not free of regulation. They must comply with a reasonable set of rules, obtain accreditation and submit financial reports to demonstrate their viability. Most importantly, parents ensure accountability of the program by carefully evaluating which school provides the best education.

So, now that everyone has had a crash course in Constitutional Law and School Choice 101, let’s get back to debating the merits of school choice expansion, empowering parents over bureaucrats and having a healthy competition among schools.

Rick Esenberg is the president and general counsel of Wisconsin Institute for Law & Liberty and adjunct professor of Law at Marquette Law School and CJ Szafir is the associate counsel and education policy director at WILL, a Milwaukee-based nonprofit legal organization that advances free markets, individual liberty, limited government, and a robust civil society.

Tags: opinion, commentary