The Indiana Supreme Court’s decision Tuesday upholding the state’s school voucher law was disheartening but not surprising. Three of the five justices, after all, were appointed by former Gov. Mitch Daniels, who championed the 2011 law along with then state Superintendent of Public Instruction Tony Bennett.
And as the court’s decision emphasizes, the citizens who challenged the law had a steep hill to climb. In Indiana, anyone contesting the constitutionality of a state law must meet an overwhelming burden of proof. The court defers to the legislature in all but the most egregious violations of the constitution.
Still, the 5-0 decision, written by Chief Justice Brent Dickson, has to leave supporters of public education feeling a bit devastated – especially coming as lawmakers are weighing further expansion of vouchers.
And the program is expansive already. After this year, there will be no limit on the number of students who can participate. It’s open to children from middle-income families, not just poor families. And there’s no requirement that students first attend a low-performing public school in order to qualify.
As Indiana University School of Education school law expert Suzanne Eckes suggests, the program flies in the face of conceptions of freedom of religion and fair access that we’ve come to expect under the federal and state constitutions.
For example, Indiana’s law is unusual in that it lets parochial schools compel voucher students to take part in religious activities. “Interestingly, no other voucher program in the country includes this type of requirement,” Eckes says. And voucher schools get a pass from the usual state rules against discrimination. They can’t bar students because of “race, color or national origin.” But they are free to discriminate on the basis of religion, gender, disability, sexual orientation, test scores, IQ, family income, parental politics or just about any other criteria you can imagine.
The plaintiffs in the voucher case alleged the program violates three sections of the Indiana Constitution: Article 8, Section 1, which requires a “general and uniform system of Common Schools”; Article 1, Section 4, which says citizens can’t be forced to support a place of worship or ministry; and Article 1, Section 6, which forbids spending state money to support a “religious or theological institution.”
The key issue, arguably, was the third. Almost all the schools enrolling voucher students are Christian schools. Many describe themselves as ministries. As mentioned above, they typically require students to participate in worship. If giving them state money doesn’t violate Article 1, Section 6, what does?
The court resolves the issue by making a distinction between direct and incidental support. The direct beneficiaries of vouchers, it reasons, are the students and their families, not the schools. Under this reasoning, the benefits that religious schools get from the $38 million voucher program are no different from the benefits they derive from police and fire protection.
“Any benefit to program-eligible schools, religious or non-religious, derives from the private, independent choice of the parents of program-eligible students, not the decree of the State, and is thus ancillary and incidental to the benefit conferred on these families,” Dickson writes.
Of course, it would be easy to stretch this argument to allow just about any state support of a religious institution. Should the state pay clerical salaries? After all, the sermons don’t benefit the church; they serve the spiritual well-being of the parishioners. Pay wages for those folks who knock on my door and ask me if I’m saved? Why not? They’re not proselytizing for the church; they’re doing it for me?
A couple of additional elements from the decision call for comment.
First, the court relies on a selective reading of 19th century Indiana history to make its case. It cites Indiana historian Donald Carmony to establish that private and religious schools were supported by taxes in the early 1800s. But it ignores Carmony’s account of how the 1851 constitution’s education provisions resulted from the advocacy of Wabash College professor Caleb Mills, who explicitly rejected public support for private and sectarian schools.
Second, the court either doesn’t understand who qualifies for the Indiana voucher program, or it has a skewed idea of the typical income of Hoosier families. The decision says five times that the beneficiaries of the vouchers are “lower-income” families. But Indiana provides vouchers to middle-income families as well – for example, a family of five that makes over $76,000. That’s well above the median household income for the state.
The court makes clear at the outset that it’s not endorsing vouchers as public policy. “Our individual policy preferences are not relevant,” it says. In other words, if we don’t like it, we should take it up with the legislature. Indeed we should.