Judges have already blocked the implementation of anti-abortion and anti-immigrant laws approved this spring by the Indiana legislature. Will the school voucher law be next? We could find out soon.
Twelve Indiana citizens sued Friday in Marion County to challenge the voucher law, which Gov. Mitch Daniels, state Superintendent Tony Bennett and Republican legislators rammed through the legislative process despite no evidence of broad support. The complaint may be spearheaded by the Indiana State Teachers Association, but the plaintiffs are a diverse group: three clergymen, a couple of college professors, a school superintendent, a principal, teachers and parents whose kids attend both public and parochial schools.
They argue that the voucher program, which provides taxpayer funding for parents to transfer their children from public to private schools, including religious schools, violates three sections of the state constitution:
— Article 8, Section 1, which says the state must provide “a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.”
— Article 1, Section 4, which says that “no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.”
— Article 1, Section 6, which adds that “no money shall be drawn from the treasury, for the benefit of any religious or theological institution.”
“This use of taxpayer funds is incompatible with the provisions of the Indiana Constitution to safeguard Indiana citizens’ freedom of conscience by ensuring that they are not compelled, through the taxes they pay, to support religious institutions, ministries, and places of worship against their consent,” the lawsuit states. “And it is contrary to the Constitution’s directive that the General Assembly provide for the education of Indiana children through ‘a general and uniform system of Common Schools.’”
A 40-page legal brief, filed with the lawsuit, fleshes out the argument and seeks a preliminary injunction to bar the voucher law from taking effect.
On the surface, the second and third arguments would seem almost a slam dunk. As the lawsuit and legal brief make clear, some of the Christian schools that plan to receive vouchers are clearly “ministries” – they even describe themselves as such. And through the voucher program, we taxpayers are being compelled to support them financially. They are also pretty clearly “religious or theological institutions,” and they will be getting money from the state treasury.
Of course, judges have sometimes been known to rule that the law doesn’t mean what it appears to say. But Suzanne Eckes and Martha McCarthy, school law experts at the Indiana University School of Education, argue that a legal challenge to the voucher law at least merits serious attention.
Eckes told School Matters this week (before the lawsuit was filed) that the state constitution’s ban on using state money to support a religious or theological institution provides a likely avenue for contesting the law. “Is a parochial school a religious institution? I think there is a good argument that it is, but I would need to examine the case law more carefully,” she said.
Another potential problem for vouchers, she said, is Indiana Code 20-33-5-11, which prohibits denying a child any “benefit or privilege” because parents can’t pay required fees. Vouchers for students in grades 1-8 are capped at $4,500, well shy of the tuition for some private schools. So would a poor child be denied the “benefit or privilege” of attending that school because his or her parents couldn’t afford tuition, even with help from a voucher?
A good, if brief, discussion of legal issues surrounding vouchers took place last week at the IU School of Education’s annual Education Leadership Conference. Video of the school-law panel is archived online (The voucher discussion starts at 31:15 minutes).
McCarthy and Eckes say it would probably be futile to challenge the Indiana voucher law under the establishment clause of the First Amendment to the U.S. Constitution. The Supreme Court, in the 2002 Zelman v. Simmons-Harris decision, declared by a 5-4 margin that a Cleveland school voucher program didn’t create problems with separation of church and state.
But a challenge under the state constitution could be a different matter. “I think the jury’s still out on the state issue,” McCarthy said at the Education Leadership forum.
Daniels and Bennett, who are named as defendants in the lawsuit, largely ignore the merits of the case in their immediate responses; and Daniels impugns the motives of those who support it.
“There the union goes again, putting their financial self-interest ahead of the interests of children and Indiana’s low-income families,” Daniels says in a statement. He doesn’t explain how the “financial self-interest” of three Methodist and Baptist ministers and two college professors, one of whom sends her children to a Hebrew school, are affected by vouchers.
Both Daniels and Attorney General Greg Zoeller cite Bonner v. Daniels, a 2009 Indiana Supreme Court decision, as evidence the state is on solid ground. But that decision says nothing about taxpayer support for religious institutions – it merely upholds a lack of 100 percent equality in school district funding.
Bennett says the lawsuit was expected and he is confident “the courts will agree that this new law is both constitutional and in the best interests of Hoosier children.”
It’s certainly debatable whether it’s “in the best interests of Hoosier children” to divert funding from public schools to private schools, some of which teach a sectarian and politically biased curriculum. But even if it were, the job of the courts is to interpret the constitution in a faithful and disinterested manner. Let’s check the slogans and rhetoric at the courtroom door.