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School Choice Laws Defy Logic

After reading a series of recent court decisions and legislation about school choice, I now know why I never became a lawyer.  If they are supposed to be logical, they fail miserably ("The Judges Who Stole School Choice," The Wall Street Journal, Sep. 8).

The latest concerns Washington, where the state Supreme Court on Sep. 4 overturned the charter law that voters had approved in 2012 ("State Supreme Court: Charter schools are unconstitutional," Seattle Times, Sep. 4). Voters had authorized up to 40 charter schools to be opened over five years that were to receive per-student funding equal to that of traditional public schools. It also required taxpayer dollars to follow the student.

But citing a 1909 state Supreme Court decision, the Washington Supreme Court in a 6-3 ruling held that charter schools violate constitutional limits on funding, and aren't accountable to local voters. I'm a loss to understand the reasoning because charter schools and their funding were explicitly approved by voters in the state just three years ago.

Earlier in June, Nevada passed the Universal Education Savings Accounts law, even though the state constitution specifically prohibits the use of "public funds of any kind or character whatever, State, County or Municipal," for a "sectarian purpose," which would undermine "the public school system that the State is constitutionally required to support" ("Nevada Places a Bet on School Choice," The Wall Street Journal, Jun. 14).

I can't imagine language that could be any clearer.  Yet the Nevada law allows parents to spend state funds on private school tuition, textbooks, tutoring and special services. These accounts could be used at religious schools as well. How is that legal under Nevada's constitution? That's why the ACLU is rightly suing. I eagerly await the Nevada Supreme Court's decision.

In contrast, the Colorado Supreme Court in June struck down the voucher program in Douglas County, the third-largest school district in the state ("Colorado Court Rules Use of Public Funds for Private Schools Is Unconstitutional," The New York Times, Jun. 29). It correctly held that the voucher program violated the Colorado constitution, which explicitly bans public money going to schools "controlled by any church or sectarian denomination whatsoever." School district officials said they would appeal directly to the U.S. Supreme Court.

I could go on by citing what has taken place in other states.  But my point is that even when language in state constitutions is crystal clear about how public funds for schools are to be used, the highest state courts and legislatures have a mind of their own. That's what's so maddening.

Defenders will point to the U.S. Supreme Court in its landmark 2011 ruling, Arizona Christian School Tuition Organization v. Winn,as final justification. The Institute for Justice, which was instrumental in defending Arizona's education savings accounts and helped design Nevada's, asserted that when public money goes directly to parents it "severs any link between church and state." That's the same argument  the U.S. Supreme Court used in 2002 in the landmark Zelman v. Simmons-Harris. It's a transparent end-run around the spirit and intent of the law, in my opinion.

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The opinions expressed in Walt Gardner's Reality Check are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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