Although none of the original state constitutions of the United States prohibited the use of public funds to assist church-related education, the inclusion or addition of such prohibitions in state constitutions occurred beginning in the mid-1800s.  This served to further place religious and other private schools at a competitive disadvantage and force children into government-run schools. 

Nearly 40 states amended their constitutions to prohibit any appropriation of public funds for religiously affiliated private schools, while other states adopted amendments limiting the use of school funds to "public" schools only.  In 1970, Michigan's constitution became the most restrictive in the nation in the limits it placed on school choice opportunities.

Article VIII, Section 2 of the 1963 Michigan Constitution states:

No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school.  No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students.

The U.S. Constitution does not appear to be an impediment to expanded school choice.  U.S. Supreme Court decisions have consistently supported parents' right to direct the education of their children.  The court has consistently defended the right and responsibility of parents to direct the education of their children in such decisions as Pierce v. Society of Sisters (1925).  In this decision striking down Oregon's attempt to ban private schools, the Court ruled that 

the fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.  The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.[85]

Other Supreme Court decisions affirming parental rights include Wisconsin v. Yoder (1972),[86] Wolman v. Walter (1977),[87] and Mueller v. Allen (1983).[88]

In June 1998, the Wisconsin Supreme Court ruled in Jackson v. Benson that parental school choice via taxpayer-funded vouchers was constitutional.[89]  The U.S. Supreme Court later let stand the Wisconsin court's decision by voting 8-1 not to review the case.  The contested voucher program now provides up to 15,000 poor Milwaukee students with a $4,000 state voucher to attend private religious schools.  This ruling is most notable because of Wisconsin's strict laws on church-state separation.

Before children can be given greater school choice, many state constitutions must be amended.  This, however, is no easy task, particularly given the political barriers to school choice.

[85]       Pierce v. Society of Sisters; 268 U.S. 510, 535 (1925).

[86]       Wisconsin v. Yoder; 406 U.S. 205 (1972). 

[87]      Wolman v. Walter; 433 U.S. 229, 262 (1977).

[88]      Mueller v. Allen; 77 L.Ed.2d 721, 728 (1983).

[89]       Matthew Robinson, "School Choice Goes To Court," Investor's Business Daily, June 11, 1998, p. A1.