INTRODUCTION
Education savings accounts (ESAs) are on the rise. Just since 2023, ESAs have been on the legislative docket in Alabama, Georgia, Iowa, Montana, Ohio, Texas, Tennessee, and Wyoming, with ESAs already active in eleven other states. (1) These programs provide funds directly to parents on a per-child basis which can be used on any number of educational pursuits. (2) While ESAs are relatively young in the world of school choice, they are also the natural outgrowth of a greater push toward educational freedom for parents. (3) They join the ranks of more established programs like school vouchers, tax credits, and charter schools.
Unlike voucher and tax-credit programs where a child's enrollment in school corresponds to a set dollar amount that a school receives, ESAs allow parents to spend each child's funding in any number of ways. Parents may spend the entire amount on traditional schools, devote some money to tutors, or enroll their child in extracurricular activities after hours. (4) And these are just a few of the plethora of options that ESAs allow. Parents don't just choose schools: they choose classes and curricula.
The costs and benefits of ESAs are certainly a matter of live debate among legislators and policy advocates, but the legal viability of these savings plans is a separate pressing question. (5) Even if ESAs are a good idea, are they constitutional? Many states are already facing legal challenges to their ESA programs, but there has been little scholarship on just how viable these claims might be.
ESA challenges often involve the right to education--a right included in most state constitutions. The exact wording of these state educational provisions varies extensively, but they generally require that the state establish "a system of public schools" with a range of adjectives like "uniform," "efficient," "suitable," "adequate," and "thorough"--often lumped together as "uniformity provisions" for the sake of simplicity. (6)
These uniformity provisions have been central to school-choice litigation for a number of years, but it isn't entirely clear how ESAs fit within past state court decisions. In one sense, ESAs are just another form of school choice and perhaps should fit side-by-side with vouchers or tax credit programs. But in another sense, ESAs require a closer look at what it means for a state to fund a "system" of public education when parents no longer just choose a school system. Should courts consider ESA funds to be squarely within a state's system of public education? Should they be considered a separate legislative project? If separate, are ESAs constitutionally suspect if they undermine the existing system of public education? Some of these issues focus on the actual wording of state constitutional provisions; others center on the substantive guarantees underlying the right to education.
This Note uses past court decisions to argue that ESA programs fit well within the structural and substantive parameters of state uniformity clauses. Part I gives a consolidated history of uniformity clauses and the corresponding state right to education. Part II addresses past uniformity litigation and, in particular, the ill-founded use of expressio unius as a limiting principle in the state uniformity context. Part III then analyzes the constitutionality of ESAs within the substantive constraints of "adequate instruction" and "equal funding," which have often been used by courts to add substantive weight to uniformity provisions.
ESAs are new. And with any new legislative experiment come new questions of legality. But whether or not ESAs are a good idea should be left to state policymakers--state uniformity provisions are no bar.
I. STATE EDUCATION AND THE RISE OF EDUCATION SAVINGS ACCOUNTS
The U.S. Constitution never mentions education. (7) Even at the height of desegregation, when a federal right to education would have boosted support for a worthy cause, the Supreme Court instead reaffirmed that education is "the most important function of state and local governments." (8) This statement rings true--states have always been the locus of education in America. (9) As early as 1779, Thomas Jefferson wrote and James Madison presented a bill calling for a system of free public schools, but they focused their efforts specifically in Virginia. (10) Although it would be many years before Virginia added a constitutional provision providing for a system of public schools, (11) state experimentation has been the educational norm.
Even so, the manner and method of state support for education has changed dramatically over time. Long before states existed, families and religious communities were dedicated to the education of the young. The first recorded private school was founded in 1606 by the Franciscan order in St. Augustine, Florida. (12) And as localities developed systems of government, public funds were comingled with those of previously existing private schools. (13) Very early in the Republic, states began their own initiatives to ensure that all children would have access to a system of education within the state. The first six states to reference schools in their constitutions were Pennsylvania (1776), Georgia (1777), Massachusetts (1780), North Carolina (1776), Connecticut (1818), and Rhode Island (1842). (14) Pennsylvania's 1776 constitution established county schools to encourage "useful learning" at "low prices." (15) Later states similarly established schools, and many opined to a greater degree on the good of education. (16) All fifty state constitutions now have a provision ensuring state support for education. (17)
Even though legislative efforts sometimes supplemented private schools in their endeavors to educate the young, this arrangement did not last forever. (18) Eventually states wanted to provide their own education in public schools. The common schools movement of the nineteenth century dramatically expanded educational provisions in state constitutions. In 1834, fewer than half of state constitutions contained education provisions. (19) Just over thirty years later, every state but one had enacted educational provisions, and the language of the provisions often obligated the state to provide public education to all students. (20) In just a few decades, states transformed local education. Students could now learn reading, writing, and arithmetic at taxpayer expense for the good of the commonwealth. But early public schools often provided an education that differed in funding rather than in kind from their private counterparts. (21) States had no qualms about teaching their students moral and religious principles during the school day. (22)
Once states were thoroughly invested in education, the natural next question became whether all citizens should be required to demonstrate a similar commitment to the project--especially when many private school alternatives were run by disfavored religious sects or immigrant populations. If states could create their own schools on behalf of their citizens, could they also require citizens to participate in those schools? The Supreme Court put these concerns to rest in Pierce v. Society of Sisters, which held that parents have a federal constitutional right to send their children to private religious schools. (23) States could not compel participation in public schools. And as taxpayers continued to choose educational alternatives for their children, an inverse question arose: could states still fund private education? What about private religious education?
School choice debates have been especially thorny when religion is added to the mix. And these debates are far from settled. Education and religion in America are difficult--if not impossible--to separate. (24) By the time private school funding became a live debate, many states had already enacted constitutional provisions that expressly prevented the use of state funds in "sectarian" schools. Those no-aid provisions, often called "mini-Blaine amendments," were usually the product of virulent anti-Catholic sentiment in the nineteenth century. (25) The provisions often prevented state funding of private religious schools from ever getting off the ground. State governments in the twentieth century also had to consider the impact of the Federal Establishment Clause on school funding. (26)
With this constitutional backdrop, vouchers were the first successful modern school-choice experiment. (27) Vouchers were especially appealing because they provided a standardized approach to school choice that gave the government some distance (even if artificially) from direct funding of religious schools. Each child received a set dollar amount that followed a child to their school of choice. (28) In theory, the government funded parents who funded the private school. (29) And in 2002, the Supreme Court confirmed that the Establishment Clause did not prohibit these programs, even when state money went to religious schools. (30)
Lingering federal questions remained. While Zelman v. Simmons-Harris opened the door to school-choice programs with religious schools, the Supreme Court remained silent for almost two decades on whether states could nonetheless choose to exclude religious schools from their programs. In Espinoza v. Montana Department of Revenue and Carson v. Makin, the Court held that a state could not exclude religious schools from any generally available public benefit--including education. (31)
The Espinoza ruling coincided with an increased interest in alternative education during the COVID-19 pandemic. (32) Within the past few years, educational alternatives have increased exponentially in many states. (33) States have continued to enact voucher programs, tax credit programs, and charter schools. And the policy debates over these programs have also continued apace. School choice has been called alternately a vehicle for discrimination (34) or a humane way to build up the urban...
