The Daily Advertiser | Vouchers Usually Tested in Court

Sunday, June 17, 2012

Nicholas Persac

The debate over public school reform often ends up in court.

Critics of Gov. Bobby Jindal's education legislation, passed by the Louisiana Legislature in April, already have filed lawsuits against it, citing violations of the state Constitution and other matters.

"It's almost a given that education reforms will be challenged by someone when you have a statewide voucher piece," said Kathy Christie, vice president of knowledge, information management and dissemination for the Education Commission of the States in Denver, Colo.

The Louisiana Association of Educators and the Louisiana Federation of Teachers both have filed lawsuits challenging the constitutionality of the education package, which among other things spends public school funds on tuition at private schools and alters the public school-funding formula.

Louisiana Superintendent of Education John C. White, the architect of the legislation, is confident the state will prevail in court.

"It's for the courts to decide, but the constitution is clear that it gives the Legislature the authority to enact such systems," White said. "I just think it's sad that the lawsuit is about adult issues and not child issues. It's sad that people would want to get in the way of choosing what's right for their kids."

Adam Emerson, director of parental choice for the Thomas B. Fordham Institute, an education-policy group based in Washington, D.C., and Dayton, Ohio, said voucher programs like Louisiana's often undergo closer legal scrutiny than programs such as the one in Florida. That one is funded by tax credits given to donors who contribute to scholarship funds issued by non-profits. When the money for vouchers comes directly from state coffers, as it does in Louisiana, the legal battle can be more difficult to win.

"Any private option like this is going to start off with a lawsuit," Emerson said. "There is always going to be a challenge to this, and legislatures already know that. The U.S. Supreme Court has already given a few rulings in favor of tax-credit scholarships, but at the state level, not all voucher programs have fared very well."

In Colorado, the courts declared a state voucher program unconstitutional, Christie said. In addition, voucher opponents are challenging a law that allows local school districts to oversee smaller voucher programs.

"It's state courts that are ruling on these things, and that doesn't mean it's going to be consistent state to state," Christie said. "They're normally challenged."

Robert Enlow, president and CEO of the pro-school choice Friedman Foundation for Educational Choice in Indianapolis, Ind., pointed to the lack of legal challenges to the school choice program in the Recovery School District in Orleans Parish as one sign that Louisiana's voucher program will withstand its legal challenges.

That could change.

On Thursday, the Orleans Parish School Board passed a resolution in favor of suing Louisiana over the funding measures spelled out in Act 2 of 2012. The new statewide program is an expansion of the state-funded voucher program that has been used in Orleans Parish since 2008.

"You have some pretty good precedents in favor of keeping it intact," Enlow said. "We hope strongly that the Louisiana courts will uphold existing precedents."

In Ohio and Wisconsin, the state supreme courts have ruled in favor of vouchers, Enlow said.

He said an important part of the challenge in Louisiana will be the use of the word "and" in the state Constitution, which says: "The Legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system."

Enlow noted that "Providing for the education of the people and maintaining public education are not mutually exclusive."

In Indiana, a lower court upheld the state's new voucher program, but opponents now are challenging the law in the state Supreme Court, according to Alex Damron, a spokesman for the Indiana Department of Education. Damron said the plaintiffs asked a judge to put the voucher program on hold while the lawsuit moves through the court system, but the judge denied that request and ruled in the state's favor.

"Every state," Emerson said, "has answered these legal questions differently."

---Reporter Mike Hasten of Gannett Louisiana contributed to this report.

---Online: www.LouisianaSchools.com.