States can reform the ineffective educational system by adopting a free educational choice system. A free educational choice system would reimburse parents of educational expenditures through a voucher or tax deduction and will give parents the freedom to select the school their child attends. While free choice may present a viable solution for educational reform, one major obstacle is the possibility free choice would violate the Establishment Clause of the First Amendment by providing aid to sectarian schools. A free educational choice legislation will be subject to review under the Lemon v. Kurtzman test to determine if the financial aid to sectarian schools is unconstitutional. The Lemon Test requires (1) the statute in question have a secular purpose, (2) the principle or primary effect of the statute does not advance nor inhibit religion, and (3) the statute does not foster an excessive government entanglement with religion. A proposed free choice legislation will pass the secular purpose prong of the Lemon test because choice of educational institutions promotes plurality and individualism. Therefore, it furthers the public interest protected by the free exercise clause. Further, a free choice legislation would pass the second prong of the test. Witters v. Washington Department of Services for the Blind established that state programs which are neutral in offering educational assistance without mention of religion, do not violate the primary effects test of Lemon. Lastly, the final prong of the Lemon Test will be satisfied if the free choice legislation avoids an administrative state system to perform regular monitoring or evaluation of non-public schools. A free educational choice system can reform the problematic system in place today, and states will optimize the probability of success of their free choice legislation if they adhere closely to the guidelines of the Lemon Test.
St. Mary's University School of Law
C. Lee Cusenbary Jr.,
Educational Choice Legislation after Edgewood v. Kirby: A Proposal for Clearing the Sectarian Hurdle.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol23/iss1/7
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