Since Iowa families were given financial freedom to choose the best school for their children, kids’ lives are being changed for the better. And the constitutionality of the Students First Act hasn’t even been challenged in court.
The Students First Act, a new law that provides Iowa parents with a funded
Education Savings Account (“ESA”) to spend at a school of their choice, has
now been in effect for an entire school year. Through the first year, the ESA
program has been a rousing success.
School choice has been well received by Iowa parents. Parents of over
29,000 students applied for ESAs in the first year of the program. And that
number will likely increase sharply in the coming years as more families
become eligible and Iowa’s private school infrastructure grows to meet
demand.
When ESAs were debated in January 2023, many opponents predicted that
school choice would destroy Iowa’s public schools. But the fears those
predictions were meant to incite haven’t been realized. In fact, public school
funding has steadily increased, and teachers are set to receive a 49%
increase in starting pay over the next two years.
Another objection hurled by school-choice detractors is the claim that ESAs
are unconstitutional. They argue that taxpayer dollars can’t go to religious
schools because it would be an establishment of religion. Professor Alan
Vestal penned a column in the DM Register renewing this claim.
His argument centered on the Iowa Constitution’s prohibition against using
taxpayer dollars for the “maintenance of any minister, or ministry.” He
supported his conclusion that Iowa’s ESA program is unconstitutional with a
1918 case involving a Catholic school masquerading as public school in order
to receive public funds. The Iowa Supreme Court held that the state wasn’t
allowed to fund the religious ministry.
If Iowa’s ESA program is funding ministries now, why not file a lawsuit and see
if a modern court deems the law unconstitutional? There are organizations
that spent a fortune lobbying against school choice that can clearly afford an
attorney.
But there hasn’t even been a lawsuit filed. Why? It’s because Professor Vestal’s analysis suffers from a faulty premise: the state isn’t funding religious schools with ESAs—the state is funding parents and their students. It is the parents who are choosing to use ESA funds at schools with shared beliefs and values, not the state. This is a key distinction that the U.S. Supreme Court most recently explained in Zelman v. Simmons–Harris (2002): “[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to
challenge . . . .”
Ironically, the policy that Professor Vestal and others claim the Constitution
requires is actually one that the Constitution prohibits. The government can’t
say to parents, “use this money to educate your child at whatever accredited
school you want as long as the school isn’t religious.” Such a rule would be
blatant discrimination based on religion and would violate the First
Amendment’s free-exercise clause. As the U.S. Supreme Court stated in the
Trinity Lutheran case in 2017, “The Free Exercise Clause protects against
laws that impose special disabilities on the basis of religious status.”
Iowa’s ESA program is unquestionably constitutional; Iowa parents can feel
confident that they won’t be forced to remove their child from the religious
school they have chosen.
Ryan Benn is an attorney and Indianola resident who graduated from Drake Law School in 2021.
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