Attorney John West ran into a buzz saw of questions and interruptions today when he tried to persuade the Indiana Supreme Court that the state’s school voucher program is unconstitutional.
Sure, the Indiana Constitution prohibits using state money for the “benefit of any religious or theological institution,” and many schools receiving vouchers are religious institutions. But haven’t the courts already decided that state support for churches and church schools can be OK?
If vouchers for students to attend K-12 parochial schools are unconstitutional, the justices asked, what about state scholarships for students who go to church-affiliated colleges like Notre Dame? What about tax breaks for religious donations? Or using public funds to pave the street in front of a church?
The aggressive questioning, although common in constitutional cases, may suggest it’s a long shot for voucher opponents to win in court. You also have to wonder if it’s pertinent that Gov. Mitch Daniels appointed three of the five current justices; and the voucher program was a key part of the education program pushed by Daniels and Superintendent of Public Instruction Tony Bennett. (Justice Mark Massa was Daniels’ general counsel until the year before the voucher law was enacted).
Still, the justices didn’t exactly give a free pass to Solicitor General Thomas Fisher, who defended the voucher law. They quizzed him about the fact that vouchers fund religious instruction and asked if there’s a point at which they undermine public education.
The Indiana legislature created the voucher program, arguably the nation’s most extensive, in 2011. The state Department of Education announced Tuesday that 9,324 students are receiving vouchers, more than double the number in 2011-12. The number of schools receiving vouchers grew to 289 from 241. The program diverts $38 million from public to private schools.
A dozen teachers, parents and clergy supported by the Indiana State Teachers Association filed the lawsuit, Meredith v. Daniels, and appealed after Marion Superior Court Judge Michael D. Keele ruled against them. Now that the Supreme Court has heard oral arguments, there’s no way to predict how long the justices will take to issue a ruling, court spokeswoman Kathryn Dolan said.
The lawsuit cites the Indiana Constitution’s requirement for a “general and uniform system of Common Schools” and its ban on compelling any person to support a ministry or place of worship. But the crux of the dispute centers on Article 1, Section 6, which says that “no money shall be drawn from the treasury, for the benefit of any religious or theological institution.”
Fisher conceded that parochial schools receiving vouchers are religious institutions. But he argued that the vouchers don’t constitute direct support for the schools. He said they instead support parents, who choose to send their children to private or religious schools and use the vouchers to pay tuition.
“We don’t have direct institutional aid at all,” Fisher said. “We have parental choice exercised through scholarships.” Any benefit to schools is incidental to the policy goal of giving parents choices, he argued.
West focused on the language of the constitution and the history of its adoption in 1851 (laid out in a friend-of-the-court brief by Americans United for Separation of Church and State). He wondered what the constitution’s framers would say to Fisher’s argument – that it’s permissible to transfer state money to a religious institution, as long as a parent gets to choose the institution.
“Is it really possible to imagine,” he said, “that they would say, ‘Oh, sure, if you do it that way, it would be OK’?”