Indiana voucher law is in the Supreme Court’s court

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’?”

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8 thoughts on “Indiana voucher law is in the Supreme Court’s court

  1. There is supposed to be a separation of Church and state by the Constitution of the United States of America. I do not understand why this voucher program was approved for several reasons.. One is the obvious Constitutional violation, the second is the undermining of legitimate education;for those confused by this you should look at the following link:

    https://inschoolmatters.wordpress.com/2012/08/14/louisiana-funds-schools-that-teach-creationism-indiana-does-too/

    I question the issue that the voucher program is for parents. This is supposed to be a country based on equality so why are the Christian schools getting this program? Then again, Why are there only Christian schools brought up? Are they the only religious based schools outside the Public School system? Isn’t that also a violation of the Constitution?

    How did Churches get Tax breaks? Why do they still have them after so many pastors have been caught dipping into the tithes to finance their personal lives? I don’t get this issue at all. Don’t get me wrong I am not anti Christian in any way, I just don’t understand why the Government permits this biased system to exist in this modern age?

    • Why, indeed, are only Christian schools being brought up? The fact is, School Choice applies to all schools. Many public schools charge tuition if you do not reside in their legal settlement. They are more than happy to quietly accept a Scholarship. Are you not concerned with “your” money going to another district? Choice Scholarships only got to accredited schools that participate in ISTEP. What, then, are your issues with curriculum?
      My family made many sacrifices for our child’s education. All the while, we paid our taxes to public schools and got nothing in return; not even a ride on the bus. We looked at many public schools and he even attended one for a few years. The fact is, that school did not offer the best education. It is currently a “B” school. Not terrible, certainly, but not an “A” school like the parochial school he graduated from. It’s about choice. It’s about parents who care about the education their children receive. I believe it will make the public schools stronger, not weaker. It’s a win-win for everyone but people just want to put some religious agenda on it that simply isn’t there.

      IC 20-51-1-4.7 “Eligible school” Sec. 4.7. “Eligible school” refers to a public or nonpublic elementary school or high school that: (1) is located in Indiana; (2) requires an eligible individual to pay tuition or transfer tuition to attend; (3) voluntarily agrees to enroll an eligible individual; (4) is accredited by either the state board or a national or regional accreditation agency that is recognized by the state board; (5) administers the Indiana statewide testing for educational progress (ISTEP) program under IC 20-32-5; (6) is not a charter school or the school corporation in which an eligible individual has legal settlement under IC 20-26-11; and (7) submits to the department data required for a category designation under IC 20-31-8-3.

  2. The voucher system was created with one intent: to undermine public schools. The money “given” to the voucher student is supposed to go to the public school. That money is for aides, teacher salaries, education materials, Transportation, many, many other school related items- even Football Uniforms!!!!
    The kids who go to those Public schools and do just fine are getting short changed by the “reforms”. Not only is the voucher system unconstitutional, it is just not right.
    Even with the assault on public ed, we educators have survived the onslaught, and will continue doing the best for your kids. How about a raise for the first time in 3 years? How about giving back the 350 million that was “found”? How about realizing the education a kid gets is there waiting for him or her. All the kid has to do is work for it no matter where he or she goes to school. Yes, there are struggles, but the last 4 years have proven that a struggle can be rewarded with success.

  3. “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’?””

    This shows total ignorance of history. At the time of the Founding, several states funded official state churches, and funding of religious schools would have seemed completely innocuous. It was only around 1940 that the courts invented the “separation of church and state” idea. The Bill of Rights merely says that the federal government cannot “establish” a church— that is, fund the salaries of pastors of one particular denomination. This was to prevent the federal government from infringing on the established churches of the states.

    • Hi, Eric. The plaintiffs here aren’t making a First Amendment argument, but they’re looking to the specific language in the 1851 Indiana Constitution. (West’s reference, I think, is to the 1851 Indiana “framers,” not the Founders who wrote the US Constitution). Justice Dickson did say, and I have no reason to doubt, that Indiana funded private/religious schools in its early years. What I don’t know is whether that continued after 1851, despite what sounds like a clear prohibition on direct funding of religious institutions that was added to the second (and current) state constitution. I hope to do some research on this if I can find time.

      Thanks for reading and for commenting.

      • I made the common mistake of forgetting that states have constitutions too! Thank you for correcting me.

  4. Pingback: School vouchers and the Indiana Constitution: What would the framers say? « School Matters

  5. Pingback: Indiana voucher expansion scheduled for vote « School Matters

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