You asked if (1) a town could establish its own school voucher program to allow its students to attend private schools and (2) a school district could establish open enrollment so district students could attend any public school in the district. You also asked for a brief list of the pros and cons of such an open enrollment program. The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

It does not appear that a town or a school district could establish its own private school voucher program without an express statutory authorization from the state. In addition, any local school voucher program that provides public money to pay for education at private religious schools might be challenged on the grounds that it violates the federal constitutional requirements on separation of church and state.

Local school boards already have the authority to allow open enrollment for public schools in their districts and several districts currently have variations of such programs. Open enrollment can help a district address racial, ethnic, or economic disparities within towns and provide broader educational choices for students and parents. At the same time, local boards implementing such programs may have higher costs for school transportation and may incur additional expenses for giving schools special themes in conjunction with a school choice program. Choice programs also require districts to set up mechanisms to avoid any crowding or racial imbalances in district schools resulting from parental or student choices.

LOCAL SCHOOL PRIVATE SCHOOL VOUCHER PROGRAM

Local Authority

The Connecticut Supreme Court has ruled that a municipality's powers are limited to those that are (1) expressly granted or (2) by implication, necessary to exercise those powers (Hennessy v. City of Bridgeport, ((1990) 231 Conn. 656). State law makes each town a school district and gives districts authority through local boards of education to control public schools. These limits imply that explicit statutory authority would be needed before a town could set up a voucher program that includes private schools.

The law does not currently grant towns or school boards any general authority to fund a private school voucher program. But a state law passed in 1972 and still on the books does give authority for up to six local or regional school boards in the state to establish “demonstration scholarship programs” allowing participating students to use the scholarships to attend private schools (CGS §§ 10-239a-239j). The law's provisions are quite prescriptive and the requirements for the program would make it impossible for a district to implement it today. Several attempts during the 1990s to pass legislation to bring the 1972 law up to date were unsuccessful. (OLR report 2000-R-0829 provides a full summary of this law and its legislative history. )

Although the 1972 law was not implemented, its existence gives weight to a presumption that a local school district or municipality would need state permission to establish a local voucher program.

Constitutional Issues

Even if state law authorized towns to establish local school voucher programs that include private religious schools, such programs would still have to comply with constitutional requirements.

The First Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, prohibits governments from enacting laws respecting the establishment of religion. The Connecticut Constitution contains similar clauses (Conn. Const. Art. VII). Connecticut has not passed legislation concerning the establishment clause and its appellate courts have analyzed this issue under the federal constitution's provisions.

In interpreting the establishment clause, the United States Supreme Court has typically relied on the “Lemon Test. ” In Lemon v. Kurtzman (403 U. S. 602 (1971)), the Supreme Court determined that government action relating to religious schools would be constitutional if the law (1) has a secular purpose, (2) does not have a primary effect that advances or inhibits religion, and (3) does not produce excessive government entanglement with religion.

While the Lemon Test has been the standard point of departure in establishment clause cases, members of the Supreme Court have expressed dissatisfaction with, and in some cases, elected not to apply the test. Additionally, in recent years, the court has applied the test in a more flexible manner, allowing, for instance, the “neutral” provision of benefits to parochial schools. See e. g. , Mitchell v. Helms, 530 U. S. 793 (2000). Notwithstanding such rulings, courts still point out the importance of insuring the secular use of funds provided. See Freedom from Religion Foundation Inc. v. Bugher, 249 F. 3d 606 (7^th Cir. 2001).

INTRADISTRICT OPEN CHOICE PROGRAMS

Local Authority

Local school boards already have authority to establish open enrollment in the public schools in their districts. State law gives boards of education the authority to (1) determine the number, age, and qualifications of pupils to be admitted to each school in the district and (2) designate the school that each child in the district attends (CGS § 10-220).

Open enrollment programs typically allow students to attend any school in the district, not necessarily one assigned by the local school district. Several school districts in the state have various types of open enrollment policies, though all place some limits on choices. OLR Report 99-R-0257 (copy attached), describes some of these programs.

Pros and Cons

Major advantages of public school open enrollment programs are that they:

1. help integrate school districts along racial, ethnic, or economic lines;

2. provide a broader range of educational program for students, especially when district schools have different themes or focus on different learning styles; and

3. provide greater control and satisfaction to parents and students.

Districts may confront several issues in implementing choice programs. For example:

1. districts typically must have mechanisms to avoid crowding or racial or ethnic imbalances among schools;

2. districts may have higher transportation costs because more students attend schools farther from home and bus routes may be longer or more buses may be needed;

3. giving each school a special theme or focus can be challenging and may be more expensive; and

4. at least initially, such programs may disrupt longstanding neighborhood relationships with particular schools.

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