Myth: Educational choice programs violate separation of church and state

There are numerous myths concerning educational choice programs. But in order for parents and students to make well-informed education decisions, these myths must be debunked. Below is a fifth myth and reality on how education choice works taken from a report by the Institute for Justice. (You can read about other myths I have written about here, here, here, and here.)

Myth: Because they allow parents to enroll their children in religious schools, educational choice programs violate the principle of separation of church and state and are thus unconstitutional.

Reality: The U.S. Supreme Court and numerous state courts have held that religiously neutral educational choice programs that give parents a genuine choice as to where to send their children to school pass constitutional muster.

Claims of educational choice being unconstitutional have been brought before the U.S. Supreme Court but have not held up. Under the Establishment Clause within the First Amendment to the U.S. Constitution, an educational choice program is considered constitutional if it includes religious neutrality and private choice.

Religious neutrality means that religious and non-religious providers of educational services may participate in the program. And private choice means that parents are free to decide whether to participate in the program and, if so, to select among those providers. As long as educational choice programs have these two features—and every current educational choice program does—they pass muster under the First Amendment.

Within state constitutions, there are religious clauses worded slightly different than the First Amendment’s Establishment Clause that school choice opponents have referenced to claim the unconstitutionality of choice programs. For example, Minnesota’s Legislature considered Equity and Opportunity Scholarships, a tax-credit program that would provide alternative education options for low-income families including private and religious schools. The program was condemned by a DFL member on the Senate Taxes Committee as a violation of the Blaine Amendment in the Minnesota State Constitution. However, the Institute for Justice Minnesota looked into the unconstitutional claim and found the then-proposed tax credits would not have violated the U.S. Constitution or the state’s constitution.

“Such individual, deliberate choices of parents and qualifying foundations to provide tuition to private, sectarian schools is constitutionally attributed to the aid of recipients, not the state. Furthermore, by empowering tens of thousands of low-income families to freely choose private schools of all kinds for their children’s education, the proposed tax credits would bring new hope and opportunity to communities of need. The financial aid received by religious schools that provide low-cost but highly effective alternatives to the public schools would be fairly attributed to the constitutional free choice of individual parents to choose the education provided to their children.”

Unfortunately, despite this form of educational choice passing muster under U.S. and state constitutional provisions, Minnesota’s Legislature did not pass tax-credit scholarships this past session.