Alabama School Choice

Introduction

With passage of the Alabama Accountability Act (AAA), Alabama has joined 21 other states and the District of Columbia in providing families greater access to private schools.  The refundable tax credits provided in the AAA are a hybrid of direct scholarship programs in which the government provides scholarships directly to eligible students, similar to the federal Pell Grant program or GI Bill, and programs that provide either tax credits or tax deductions to families for educational expenses of sending their children to private schools.  Twelve states and the District of Columbia operate 18 direct scholarship programs, and six states offer tax credits and deductions directly to families for education expenses associated with private schools.

The other part of the AAA is third-party tax credits provided to individuals and corporations paying Alabama income taxes for donations to private scholarship-granting organizations (SGO’s) and is similar to 14 tax-credit programs offered by 11 other states.  All told, there are 38 programs outside of Alabama currently providing families educational opportunities in private schools in those 22 jurisdictions.  Thus, although new to Alabama at the K-12 education level, school choice programs like the AAA are now quite common throughout the United States.  Families with the financial means to do so have always exercised school choice by moving away from poorly performing public schools or moving their children into more effective private schools.  Low-income families are just as eager to access better schools for their children and with the AAA Alabama families will be able to do so for the first time.

Opponents of school choice now must rely exclusively on state constitutional provisions such as those used in the AEA’s lawsuit because the U.S. Supreme Court has clearly ruled that the federal Constitution permits states to aid parents in making free and independent choices about where their children attend school.  In 2002, in Zelman v. Simmons-Harris, the Supreme Court ruled in favor of Ohio and parents (represented by IJ) participating in the Cleveland scholarship program, holding that so long as the program is one of true parent choice and does not encourage parents to choose religious schools over nonreligious schools, there is no violation of the federal Establishment Clause.  By the time the U.S. Supreme Court ruled, the supreme courts of Arizona, Ohio and Wisconsin had already interpreted the federal constitution to permit school choice, and had upheld such provisions under their state constitutional guarantees as well.  Most recently, the Indiana Supreme Court upheld a state-wide school choice program under state religion clauses that are very similar to those in the Alabama Constitution.

Furthermore, although scholarship programs at the K-12 level of education are of relatively recent vintage in most states, virtually all states have been providing college scholarships for decades, as has the federal government.  This is significant for the AEA’s current lawsuit, because many state religion clauses, including Alabama’s, apply to college scholarship programs as well as those at the K-12 level.  Indeed, one expects that the AEA is aware of this fact, because many years ago the AEA challenged Alabama’s college scholarship program on the grounds that students were using their scholarships to attend religious colleges, arguing that this violated the same religion clauses their current lawsuit involves.  In the 1979 case of Alabama Education Association v. James, the Alabama Supreme Court upheld the program.   Courts in other states— including Arkansas, Colorado, Kansas, Missouri, Nebraska, North Carolina, South Carolina, Tennessee and Washington—have upheld similar programs.

IJ’s Parent Clients

IJ has asked the trial court in Montgomery County that is considering the AEA’s lawsuit to allow IJ to intervene on behalf of parents who are benefitting from the AAA because it has given them the chance to get their children out of failing public schools and into better-performing private schools.  These parents, and others like them, have the most at stake in this litigation.  That is why they are fighting back against the AEA’s lawsuit—and fighting for the principle that no kid should be forced to attend a failing public school.  Instead, his parents should have the choice to send him to another school, public or private, where he has a chance to receive a quality education.

Tequila Rogers is the mother of Christian Rogers, who completed fifth grade at Holloway Elementary school in Mobile this past June.  In July, Ms. Rogers received a letter from the superintendent of the Mobile County Public Schools informing her that Christian was assigned to Booker T. Washington Middle School for sixth grade, and that because Booker T. Washington Middle School was rated by the state of Alabama as a failing school she was eligible for a refundable tax credit of up to $3,500 if she sent Christian to a private school participating in the AAA.  After determining that Booker T. Washington was not a good school for Christian, Ms. Rogers researched her options for private school and chose to send Christian to Little Flower Catholic School, because she liked its small classes, approach to educating students and curriculum.  Neither Ms. Rogers nor Christian is Catholic, and Ms. Rogers did not select Little Flower for religious reasons, although both are very comfortable with the religious atmosphere at Little Flower.  Christian loves his new school.  He likes the students and the small classes and Ms. Rogers likes the focus on learning and the fact that the teachers are proactive and follow-up with parents.

Tuition and fees at Little Flower total $4,177.  The AAA’s refundable tax credit is a big help to Ms. Rogers because it will offset $3,500 of that cost.  The school is convenient to her work in downtown Mobile and also provides after-school care.  The AAA makes sending Christian to Little Flower affordable for Ms. Rogers.  She believes he is getting a good education at Little Flower and that it is better than he would have received at Booker T. Washington.  If she were unable to receive a tax credit because of the AEA’s lawsuit, she would either have to send Christian to Booker T. Washington or endure tremendous financial hardship in order to try to keep him enrolled at Little Flower.

Danyal and Mark Jones are the mother and father of Ragan Ashton Jones, who attended Brewbaker Middle School in Montgomery, Ala., for sixth and seventh grades.  The Joneses were very unhappy with Brewbaker, believing that it was not preparing their daughter for the real world and that it was not a healthy learning environment.  Ragan rarely had homework and did not receive the one-on-one attention she needed in math, her weakest subject.  Brewbaker was going to force her to drop all of her other AP classes if she transferred out of AP math as she wanted to.  Even before they received a letter informing them of their eligibility for the AAA tax credit program, the Jones had begun trying to move Ragan into a better school.  Their previous attempt to transfer her from Brewbaker to a magnet school failed, and the AAA program has enabled them to send her to Resurrection Catholic School.

The Joneses are not Catholic; they sent Ragan to Resurrection because of the quality of education it provides.  Ragan is excelling at her new school and has set herself the goal of being the class valedictorian by the end of the school year.  Ragan and her parents are very comfortable with the religious atmosphere at Resurrection, where she has made new friends and where she is receiving the one-on-one math tutoring that she needs.  The tax credit program makes Resurrection affordable for the Joneses, although the program will not cover all of the cost of sending Ragan to Resurrection.  The program has made it possible for them to move Ragan from a failing school where she was struggling to a school with a great reputation where she is thriving.

If the AEA’s lawsuit succeeds in taking away the refundable tax credit provided by the AAA, these parents—and others like them—will either have to return their children to failing schools or endure tremendous financial hardship in order to keep their children in their current schools.

The AEA’s Lawsuit

In the lawsuit, the AEA raises ten legal claims, all of which are based upon provisions in the Alabama Constitution.  Three of those claims concern provisions of the Alabama Constitution that address the interaction between government and religion.  The remaining claims concern provisions of the Alabama Constitution concerning the legislative process and restrictions on the Legislature’s use of funds.  Below, we first explain why the AEA’s claims under the religion provisions will fail, and we then explain why their claims under the other provisions will fail.

The AEA’s Religion Claims

Most state constitutions contain religion clauses for reasons similar as those that inspired the Free Exercise and Establishment Clauses of the federal Constitution, namely the protection of religious liberties.  Because the federal religion clauses were not applied against the states until the 1940’s, for most of this nation’s history it was these state religion clauses that formed the primary bulwark against state establishment of a state-approved religion and the primary support for the right to freely exercise one’s chosen religion.

These state religion clauses frequently take the form of those in the Alabama Constitution.  Article I, Section 3 of the Alabama Constitution is a typical “compelled support clause,” and provides that “no one shall be compelled by law to attend any place of worship, nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry.”  Such clauses trace back to Pennsylvania, which was founded by Quakers and never had an established religion.  Other states adopted similar language in the course of disestablishing their states’ religions or to prevent any establishment.

The other religion clauses of the Alabama Constitution are of much more recent vintage, and are what are commonly known as “Blaine Amendments,” after James G. Blaine who proposed an amendment to the federal constitution in 1876 to prohibit states from appropriating public money to sectarian schools.  Blaine was seeking the Republican nomination for president at a time of great hostility to the growing Catholic population, which was demanding a share of the public school funds for their parochial schools.  The Catholics established their schools because the public schools were not the thoroughly secular institutions we are familiar with today, but rather were nondenominationally Protestant in orientation and inhospitable to Catholics.  Blaine sought to garner anti-Catholic votes by amending the U.S. Constitution to make it forever impossible for Catholics to obtain direct funding for their schools.

Although Blaine’s Amendment narrowly failed to garner sufficient votes for the supermajorities of both Houses of Congress required to send it to the states for possible ratification (it passed the House overwhelmingly but fell two votes short of a two-thirds majority in the Senate), a number of states had already adopted similar state constitutional language, and the Republican majorities in Congress had more than enough votes to require through enabling acts that territories drafting their constitutions include Blaine language.  A similar requirement was imposed on the states that had attempted to secede during the Civil War and which were required to draft new constitutions in order to get their voting rights back in Congress.  This included Alabama.

Alabama’s two Blaine Amendments are Article IV, Section 73 and Article XIV, Section 263.  Section 73 states that “[n]o appropriation shall be made to any charitable or educational institution not under the absolute control of the state, other than normal schools established by law for the professional training of teachers for the public schools of the state, except by a vote of two-thirds of all the members elected to each house.”  Section 263 provides that “[n]o money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian or denominational school.”  As the U.S. Supreme Court noted  in a case concerning whether federal funds could be provided to support religious schools in Louisiana, “sectarian” as used in Section 263 is code for Catholic in these sorts of provisions, to distinguish Catholic schools from the nondenominationally Protestant public schools.

Like the federal Blaine Amendment on which it is modeled, Section 263 addresses K-12 education, while Section 73 is both broader but less absolute, allowing aid to private institutions but only after a two-thirds vote of all members elected to each house of the Legislature.  Note, however, that both provisions address aid appropriated to or used for support non-public institutions as institutions, which makes sense in terms of the original Blaine Amendment, which was written to rebuff Catholic demands for direct aid to their schools as institutions.  Neither provision specifically addresses aid provided to families or to students, nor aid provided by mechanisms not involving appropriations of funds, such as tax credits.

In Alabama Education Association v. James (1979), the AEA alleged that these provisions were violated by Alabama’s program of tuition grants for students attending Alabama colleges.  According to the AEA, the program ran afoul of these provisions because many students chose to use the grants to attend private religious colleges.  After concluding that these provisions were not more restrictive than the federal Establishment Clause, the Court held that the grants were for the benefit of the students rather than the schools.  This same reasoning applies to the AAA, where the eligible families directly benefit from the program, and any benefits received by the schools they choose are incidental, a function of the families deciding to purchase educational services from them.

The AEA’s Other Claims

The AEA has also included seven other claims of constitutional violations, hoping to find at least one that it can make stick.  These claims range from weak to borderline frivolous.

Their fourth through eighth claims allege procedural violations concerning the passage of the AAA.  The fourth claim alleges a violation of Article IV, Section 61 because, the AEA asserts, the “original purpose” of the bill that became the AAA was altered or amended in the course of passage.  The first flaw in this argument is that the Alabama Supreme Court interprets original purpose to mean the general purpose of the bill and permits the Legislature during the course of enactment to change the means by which that general purpose  is accomplished, which is what happed during the passage of the AAA.  Moreover, because the Legislature subsequently went back and amended the law, any procedural violations that were arguably created during the original passage were cured by the later passage of the amended legislation.

This same analysis applies to their fifth claim, an allegation that the AAA is unconstitutional under Article IV, Section 63, which requires that legislation be read three times on different days in both the House and Senate.   But the AAA was read three times on different days; as with all bills that are amended, the fact that it was changed during the course of those readings doesn’t make it unconstitutional.  Furthermore, even if the AAA was in violation of Article IV, Section 63, any violation was cured by the Legislature’s later passage of an amended version.

The sixth, seventh and eighth claims all allege violations of Article IV, Sections 45 and 71, which require that each law, including appropriations, consist of a “single subject.”  Alabama, as many other states do, interprets this single subject requirement liberally, allowing a law to contain several parts so long as they relate to one general object, in this case education reform and accountability.  Much like the fourth claim involving the purpose of the legislation, courts grant the legislature considerable leeway in creating legislation.

The ninth claim alleges a violation of Amendment 61 of the Alabama Constitution, which requires that the bulk of the net proceeds of the Alabama income tax be placed in the Education Trust fund to be spent on public teachers’ salaries.  This claim applies only to the individual and corporate income tax credit part of the AAA, because any appropriations necessary to fund the refundable tax credits come from sales tax revenues and not income tax revenues.  Alabama, however, provides a wide array of tax credits against its individual and corporate income tax and these have never been regarded as violating Amendment 61, because by their very nature tax benefits like tax credits, deductions, and exemptions do not result in money being placed in the state treasury.

The tenth and final claim is that the AAA violates Article XI, Section 213, which is meant to prevent the Legislature from creating deficits that will have to be addressed by future Legislatures.  But the Accountability Act does not generate any deficit-spending, and the AEA has (correctly) not alleged that it does.

Conclusion

The weakness of all of the claims reveals the AEA lawsuit for what it is:  a desperate gambit to cling to an unacceptable status quo in which too many students are trapped in failing schools.  All of the AEA’s legal claims boil down to the assertion that the Alabama Constitution requires that the state give parents no other choice but to keep their kids trapped in failing public schools.  But that is simply untrue.  The Constitution allows the state to empower parents to choose the best school for their children.   Now that they have that choice, IJ’s clients aren’t about to let the AEA take it away from them and other parents across the state who want nothing more than to secure a quality education for their kids.

The Litigation Team

The Institute for Justice filed its motion to intervene on October 9, 2013. Lead attorney for these parents will be IJ Senior Attorney Bert Gall, who will be assisted by Senior Attorney Dick Komer and Attorney Arif Panju.  Mr. Gall led the IJ Team that successfully defended the Indiana scholarship program recently upheld unanimously by the Indiana Supreme Court.  They will be joined by local counsel Charles Paterson and Joseph McCorkle of the law firm Balch & Bingham LLP.

 Summary of School Cases Discussed Above

Alabama Education Association v. James, 373 So. 2d 1076 (Ala. 1979)—The Alabama Supreme Court upholds a program of tuition grants to Alabama students attending Alabama colleges, including private religious colleges, against a challenge alleging violations of the religion clauses of the federal and state constitutions.

Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998)—The Wisconsin Supreme Court upholds the first modern direct scholarship program at the K-12 level against a challenge alleging violations of the federal and state constitutions’ religion clauses.  The Wisconsin Constitution contains both a “compelled support” clause and a Blaine Amendment similar to those of the Alabama Constitution.

Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999)—The Arizona Supreme Court upholds a third party tax credit for donations to scholarship-granting organizations against a challenge alleging that it violates the federal and state constitutions’ religion clauses.  The Court holds that tax credits are not an appropriation of public money.  Arizona’s Constitution contains Blaine Amendments similar to those of the Alabama Constitution.

Toney v. Bower, 744 N.E.2d 351 (Ill. App. 4th Dist. 2001), and Griffith v. Bower, 747 N.E.2d 423 (Ill. App. 5th Dist. 2001)—Two Illinois courts of appeal uphold an Illinois tax credit for educational expenses against challenges alleging violations of the federal and state constitutions’ religion clauses.  The Illinois Supreme Court declines to review the decisions.  The Illinois Constitution contains both a “compelled support” clause and a Blaine Amendment similar to those of the Alabama Constitution.

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)—The U.S. Supreme Court upholds an  Ohio direct scholarship program for students in Cleveland against a challenge alleging it violates the federal establishment of religion clause because parents can choose religious schools.   The Ohio Supreme Court had previously upheld the program under both the federal and state constitutions’ religion clauses, with the Ohio Constitution having a “compelled support” clause similar to that of the Alabama Constitution.

For more information contact:John E. KramerVice President for CommunicationsInstitute for Justice901 North Glebe Road, Suite 900Arlington, VA 22203-1854Phone:  (703) 682-9320 ext. 205jkramer@ijstaging.wpengine.com