Indianapolis Star | Will state's top court settle school vouchers?

Monday, February 28, 2011

Scott Elliott

Even before it became ensnared in the legislature's political standoff, a bill that would allow parents to use public dollars to send their children to private schools had begun to stir debate over an important question:

Is it constitutional?

"There are some serious concerns as to whether it would be constitutional here in Indiana," said Joel Hand, executive director of the Coalition for Public Education, a group begun in January to fight Gov. Mitch Daniels' educational reform agenda.

The conventional wisdom in the legal community is that House Bill 1003 most definitely would not violate the U.S. Constitution; that issue was generally resolved in a 2002 case involving a school voucher program in Cleveland.

What's not so clear, however, is whether it violates Indiana's constitution.

Daniels says he's "100 percent" certain that vouchers are constitutional, a sentiment shared by many lawyers.

Others, however, disagree, and even some supporters think that although they ultimately will prevail, there is enough question to form the basis for a legal challenge that could require the Indiana Supreme Court to decide whether the program can go forward.

A ruling in favor of vouchers "may be where the court comes down," said Martha McCarthy, chair of educational leadership and policy studies at Indiana University. "But I don't think it's a slam-dunk."

The legal debate in Indiana is based on two sections in the state constitution. One centers on the state's provisions establishing public schools as tuition-free and open to all. The other is the state's language on the separation of church and state, language that legal scholars say goes beyond what the U.S. Constitution requires.

Indiana's constitution includes a direct prohibition on state aid to religious institutions: "No money shall be drawn from the state treasury, for the benefit of any religious or theological institution."

"We do have a pretty stringent clause here," McCarthy said.

At issue is the assumption -- an almost certainty -- that many of the taxpayer-funded vouchers will support tuition at religious-affiliated private schools such as Catholic parochial schools.

"Probably most of the private schools would be religious schools," said Nate Schnellenberger, president of the Indiana State Teachers Association. "In effect, it would be a government subsidy for religious schools. We think that's wrong."

That was a central issue in the Cleveland case before the U.S. Supreme Court, which ruled vouchers are constitutional, in great part because parents have a choice -- they don't have to choose religious-affiliated schools. Even in Cleveland, where nearly all families used vouchers for religious schools, the court found they had other choices, such as magnet schools and charter schools. As long as parents made the choice among a variety of options, the program was constitutional, the justices ruled.

That case set an important precedent, but it's not an open-and-shut issue. In states with language close to Indiana's, state courts have cited those provisions in striking down voucher programs.

That's what happened in Arizona in 2009. Its constitution forbids public money to be "appropriated to any religious worship exercise or instruction or to the support of any religious establishment."

Still, voucher supporters in Indiana are confident. They argue that Indiana case law has strongly favored allowing public dollars to flow to religious institutions as long as it is for a purpose and not simply to "benefit" them.

For example, in the 2004 case Embry v. O'Bannon, the Indiana Supreme Court allowed a program that paid teachers for certain courses taught at parochial schools.

Peter Rustoven, an attorney with Indianapolis law firm Barnes & Thornburg, cited that case in his review of the constitutionality of the proposed Indiana voucher program.

Rustoven was hired to do the review by the Indianapolis-based Foundation for Educational Choice, a leading advocate for voucher programs nationally. The foundation also received a 15-page memo from an attorney at the Institute for Justice, an Arlington, Va.-based libertarian legal group that favors charters, addressing the legal questions.

Both Rustoven and the Institute for Justice concluded that Indiana's voucher plan would not violate the constitution, either on the issue of church and state or on the establishment of public schools as tuition-free and open to all.

"Indiana's case law and constitution make aid to individuals to make private choices totally constitutional," said Robert Enlow, president and CEO of the Foundation for Educational Choice.

A defense of vouchers from the religious argument, McCarthy said, is helped by the outcome of the Cleveland case.

"I think they'll try to rely heavily on the argument (in the Cleveland case) that this is not government aid directly to religious schools," McCarthy said, "but that the aid is going to parents."

That issue relates to the constitutional provision establishing "common schools," or public schools. Indiana's constitution calls for a "general and uniform system" that is "without charge and equally open to all." Critics say allowing some public school students to attend selective private schools that require tuition could violate this provision. Opponents likely would try to convince courts that Indiana had changed its public school system to now include tuition-charging schools.

Schnellenberger said this connects to the wider issue for critics: that vouchers drain money from public schools, making it harder for them to fulfill their mission under the state constitution to educate Indiana's children.

"We do not oppose school choice," he said. "Parents have a right absolutely to send children to any school they choose. Our problem is when you take money already budgeted to public school and send it to a private school."

The Institute for Justice and Rustoven argue that vouchers would be separate from the public school system and would not change the nature of public schools. Proponents argue that a voucher program would enhance education for children by providing more good options.

Still, other states with similar provisions have seen courts strike down voucher programs, most notably Florida, McCarthy said. In that case, Florida's constitution was more strongly worded than Indiana's. Its Supreme Court overruled lower court decisions favoring vouchers.

One final factor to consider, she said, is other church-state cases, such as a case the U.S. Supreme Court heard in November but has not ruled on regarding voucher-like tax credits for organizations that fund scholarships for children to attend private schools.

"If that one is upheld," McCarthy said, "I think the floodgates are open for voucher programs."