By Joseph O. Oluwole and Preston C. Green III | 65 Am. U. L. Rev. 1335 (2016)
School choice advocates contend that government aid programs, such as vouchers, tax credits, and tax deductions, increase educational opportunities for students from lower income households to attend private schools that perform better than their local public schools. Opponents contend, however, that such aid programs threaten the viability of the public school system and compel or encourage taxpayer funding of sectarian schools, fueling concerns about unconstitutional government overreach. Such concerns have instigated a variety of constitutional challenges against government aid programs. This Article presents a comprehensive review of the constitutionality of government aid programs under the Establishment Clause, the Free Exercise Clause, standing, and the Equal Protection Clause. It also examines religion-based challenges to government aid programs under state constitutional provisions such as the Blaine Amendment and the compelled support clause. Besides challenges involving government aid and sectarian schools, government aid programs are also susceptible to challenge when secular private schools receive government funding. For these challenges, petitioners rely on state constitutional provisions rather than the federal Constitution, which does not proscribe government aid programs benefitting secular schools. This Article examines judicial precedents on the efficacy of challenges to government aid programs under state constitutional provisions governing educational efficiency, uniformity, state control, local control, new debt, anti-gift, no aid, and public purpose. Finally, this Article discusses the implications of the federal and state government aid jurisprudence for tax benefit and voucher legislation.
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