In posting about the North Carolina anti-voucher decision yesterday, I referred to an article by Preston Green and Peter Moran on state constitutional provisions that may restrict vouchers, and also to a post I did on the subject a few months ago, when the Louisiana Supreme Court struck down a voucher plan. I thought this would be a good time to recap the variety of different state constitutional provisions at issue.

My Reason post discusses the religious aspects — how the participation of religious schools doesn’t violate the Establishment Clause of the federal constitution, and how some states might impose further restrictions through Blaine Amendments. Less well-known, though, are all the non-religious state-law constitutional grounds that voucher plans might be invalid, either per se or in a particular form. Here’s what I’ve written about these, drawing on the Green and Moran article:

Uniformity provisions

First, there are “uniformity provisions,” present in the constitutions of fourteen states. Wisconsin’s constitution, for instance, requires the legislature to establish “district schools, which shall be as nearly uniform as practicable.” Florida’s constitution, similarly, provides that “[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”

Though both constitutions have similar uniformity provisions, their courts have come to different conclusions regarding the permissibility of voucher programs. The Wisconsin Supreme Court, in Davis v. Grover (1992), upheld the Milwaukee Parental Choice Program (MPCP) against a uniformity-based challenge, holding that the uniformity clause is about giving children the opportunity to attend a free, uniform district school, not about mandating that they do so. “The MPCP,” the court held, “merely reflects a legislative desire to do more than that which is constitutionally mandated.”

The Florida Supreme Court, on the other hand, in Bush v. Holmes (2006), held that Florida’s Opportunity Scholarship Program (OSP) violated the uniformity clause. The court held that the uniformity sentence quoted above should be read in light of the sentence that precedes it: “It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders.” This sentence requires adequate provision; the following one mandates how: through “a uniform, efficient, safe, secure, and high quality system of free public schools.” In other words, the uniformity sentence is a restriction on the state legislature, limiting them to this particular way of achieving the adequate-education goal established in the previous sentence. In this light, the OSP violated the uniformity clause “by devoting the state’s resources to the education of children within our state system through means other than a system of free public schools.”

Local control provisions

Second, there are “local control provisions,” present in the constitutions of six states. Colorado’s constitution, for instance, mandates that the legislature organize “school districts of convenient size, in each of which shall be established a board of education,” the directors of which “shall have control of instruction in the public schools of their respective districts.” One might think that this provision has no bearing on voucher programs, since presumably voucher schools aren’t “public schools” and therefore don’t need to be subject to board of education control. But, for a century, Colorado courts have interpreted the provision to mean that “local school districts must retain control over any instruction paid for with locally-raised funds.” In light of this interpretation, the Colorado Supreme Court held in Owens v. Colorado Congress of Parents, Teachers & Students (2004) that the Colorado Opportunity Contract Pilot Program (COCPP) violated the local control provision because “it direct[ed] the school districts to turn over a portion of their locally-raised funds to nonpublic schools over whose instruction the districts ha[d] no control.”

Note, though, that the Colorado holding depends crucially on the structure of the COCPP, under which participating parents got their “assistance payments” for attending private schools directly from their child’s school district. Presumably, Colorado could have financed vouchers directly from the state’s general fund without running afoul of the local control provision.

Funding provisions

Third, there are “funding provisions,” which come in several types.

The constitutions of seven states explicitly bar the funding of private schools; Arizona’s, for instance, provides that “[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school.” The Arizona Supreme Court, in Cain v. Horne (2009), held that the funding of an Arizona voucher program was “in aid of” private schools: even though the vouchers went directly to parents, private schools were the true beneficiaries.

Three states bar funding any school not under the exclusive control of the state. (This has a similar flavor to the “local control” provisions above.) Nebraska’s constitution, for instance, provides that “appropriation of public funds shall not be made to any school . . . not owned or exclusively controlled by the state or a political subdivision thereof.” The Nebraska Supreme Court, in State ex rel. Rogers v. Swanson (1974), invalidated a program providing public grants to students attending private schools: here, too, though the funds went to parents, the court held that the state couldn’t avoid the prohibition on funding schools by funneling the payments through parents.

And at least ten states have provisions limiting educational funds to public schools, though these provisions don’t seem to rule out funding a voucher program out of the general fund. (Louisiana seems to fall into this category, as does North Carolina.)

Public purpose provisions

Finally, there are “public purpose provisions,” present in most state constitutions, mandating that the state spend funds for public purposes. These mostly aren’t a bar to voucher provisions because courts defer to the legislature on what a private purpose is, but Kentucky courts have used these provisions to strike down some programs that loaned textbooks or subsidized transportation for private school students.