Voucher decision sad but no surprise

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 Continue reading

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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. Continue reading