Prof. Garnett on the Legal Case for School Choice

Rick Garnett fall08 Notre Dame Professor of Law Richard Garnett spoke at The Lumen Christi Institute Law and Culture Forum’s panel discussion titled “The Moral and Legal Case for School Choice.” Joining Garnett on the panel in Chicago were the Rev. Timothy Scully, C.S.C., a political science professor at Notre Dame, and Marquette University education specialist Dr. Howard Fuller.

The conversation examined the moral, constitutional, and other legal issues surrounding the use of vouchers and tax credits to pay for tuition in private schools. The panelists discussed how vouchers and tax credits for private school tuition can empower parents and students to make choices that benefit children, families, groups, and society as a whole.

Garnett’s comments focused on the legal and constitutional dimensions of the issue, arguing that while the First Amendment permits school choice, barriers to meaningful choice-based educational reform—including the choice to attend a religiously affiliated school—remain.

“Today, the Supreme Court’s cases clearly support the proposition that governments need not discriminate against ‘religious ideas, religious people, and religious schools’ in the administration of general-welfare and education-assistance programs,” said Garnett. He pointed to Zelman v. Simmons-Harris, decided by the Supreme Court in 2002, which states that the Constitution permits religion-neutral private-choice programs.

Garnett went on to say that “although the Constitution of the United States permits school-choice experiments, formidable legal and constitutional obstacles still exist in the states…many state constitutions contain provisions that—Zelman notwithstanding—dramatically limit the possibilities for authentic education reform.” Additionally, in a 2004 case called Locke v. Davey, “the Supreme Court refused to take the post-Zelman step that many school-choice advocates were hoping for,” said Garnett. “The Court refused to say that the federal Constitution required the state of Washington to allow a college student to use scholarship money to major in theology at a religiously affiliated school.”

Ultimately, according to Garnett, “private and religious schools are not anomalies or outlaws, grudgingly tolerated; instead, they reflect our foundational commitments to freedom, pluralism, and limited government.”