Alito friendly to school choice?

By Krista Kafer The U.S. Senate confirmed Judge Samuel Alito the 110th Justice of the Supreme Court Tuesday by a 58-42 vote. Colorado Senator Wayne Allard (R) voted in favor while Senator Ken Salazar (D) voted against confirmation.

The addition of Justice Samuel Alito bodes well for the nation’s school children. Why? What does the Court have to do with education? The Court decides whether it is constitutional for children to use public funds to attend faith-based schools.

Over the past two decades a divided Court has upheld public funding for vouchers, education tax credits and deductions, and even direct funding so long as programs meet certain conditions. School choice advocates believe Justice Alito will be supportive of choice programs given his past support for liberty in other types of cases.

Warning: Legal Analysis to Follow. So how does religious liberty relate to school choice? The First Amendment of the US Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” In other words, the government programs can neither aid nor encumber the free exercise of religion. Government must be neutral.

To quote Supreme Court Justice Hugo Black, the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.”

To be considered constitutional, a program that provides public funding to religious institutions “must have a secular legislative purpose.... [I]ts principal or primary effect must be one that neither advances nor inhibits religion; [and] the statute must not foster ‘an excessive government entanglement with religion.’” (see Lemon v. Kurzman)

Tax Deductions: Building on this precedent, the Court ruled in Mueller v. Allen in 1983 that the Minnesota tax deduction for private school expenses met the test because it was "neutral on its face and in its application and does not have a primary effect of either advancing or inhibiting religion."

Vouchers: In 2002, the Court similarly concluded that the use of public money for vouchers to religious schools does not violate the Constitution as long as parents make the decision regarding where the funds are used. In fact, the Court concluded that the Cleveland program is neutral with regard to religion even though the majority of voucher recipients chose religious schools. Chief Justice Rehnquist wrote, "[w]e believe that the program challenged here is a program of true private choice…[and] is neutral in all respects toward religion."

Other Types of Funding: Other important cases from the past two decades include Mitchell v. Helms and Aguilar v. Felton which support federally funded goods and services for students at private schools. Similarly, in Witters v. Washington Department of Services for the Blind and Zobrest v. Catalina Foothills School Dist. the Court gave the green light to public funding to private school k-12 and college students.

Just last month the Supreme Court let stand an appeals court ruling in favor of government funding for teachers in Catholic schools under the AmeriCorps program. The lower court decision in American Jewish Congress v. Corporation for National and Community Service upheld funding to University of Notre Dame which trains and places AmeriCorps participants at needy Catholic schools.

Citing cases from the past two decades, the appeals court stated that a government program does not violate the Constitution if it is neutral toward religion and benefits a broad class of citizens who direct aid to religious institutions through private independent choices. The Court cited many of the decisions described above.

In a nutshell, over the past two decades, the Supreme Court has looked favorably upon school choice programs that meet certain parameters. The addition of Samuel Alito, a supporter of religious liberty, is good news for school choice programs and the children they serve. The National Education Association teachers' union had good reason to oppose him. Although the Court will still be divided, since Clinton’s appointees are no friend to school choice, the addition of Samuel Alito gives us reason to cheer.

End of Legal Analysis Warning Zone. We now return you to normal blogging. But if you're hungry for still more legal analysis, check out these excellent resources provided by the Alliance for School Choice and the Heritage Foundation.