This past week was National School Choice Week. School Choice continues to be a
major area of discussion in the current education policy debates. The National
School Board Association recently released facts on voucher programs to counter National School Choice Week. As
school reform advocacy strengthens, this Country will continue to face
increased pressure to develop voucher programs. In 2002, the U.S. Supreme Court in Zelman v. Simmons-Harris[1]
, held that an Ohio school voucher program was not in violation of the
Establishment Clause. This ruling opened
up the opportunity for other states to create similar school voucher programs. The
increase in voucher programs has lead to an increase in litigation regarding
the constitutionality of these programs.
The success of these legal challenges depends on the language in the individual state’s constitution.
Currently there are several school
voucher cases that have been recently decided or are awaiting a decision. These
decisions can shape the future of voucher programs. On November 30, 2012, a Louisiana state court held that its state voucher program is unconstitutional.[2] The Louisiana Scholarship Program is a
program designed to provide students with additional opportunities to attend
high quality schools. The voucher program provided vouchers to student within a
certain income bracket to allow the opportunity to attend private schools. Judge Timothy
Kelley of State District Court ruled that the Louisiana voucher program is
financed in a way that is in violation of the state constitution. The state
used their Minimum Foundation Program (MFP), the state’s public school funding
formula, to pay for the program.
Another voucher case, Meredith
v. Daniels[3], is currently in front of the
Indiana Supreme Court. Meredith,
questions the constitutionality of the Indiana school voucher program, the
Choice Scholarship Program, hereafter “CSP”.[4] CSP allows Indiana primary and secondary
school students, within a certain household income, to receive voucher
scholarships to attend private schools.[5] The Indiana Marion County Superior Court held that CSP was not in violation of the Indiana Constitution.[6] The court summarized that “interpreting
Article 1, Section 6 to prohibit programs like the CSP would cast double on the
validity of a host of other longtime religion-neutral state programs whereby
taxpayers funds are ultimately paid to religious institutes by way of
individual choice.”[7] The Plaintiffs appealed this ruling to the
Indiana Supreme Court. On November
21, 2012, the Indiana Supreme Court held oral arguments for Meredith.
We are awaiting a decision on this case. After listening to the oral arguments in this
case, I did not anticipate there not being a decision two months after the
arguments.
The case of Larue v. Colorado Board of Education[8]
is currently in the front of the Colorado
Court of Appeals. Larue, challenges the Choice Scholarship Program, not to be confused with the Indiana CSP.[9] “The Program, enacted by the Douglas County
Board of Education on March 15, 2011, takes public funds provided by the State
of Colorado—which are required by law to be spent on public schools—and uses
them to pay for tuition at private schools. The vast majorities of these
private schools are religious, are controlled by churches or other religious
institutions.”[10] The Plaintiff’s allege that the voucher program is in
violations of six sections of the Colorado Constitution, and a public finance
act. The lower court agreed with the
plaintiffs and issued an injunction in August 2011.[11] Oral arguments for this case were held on November 19, 2012. We are currently awaiting the Colorado Court of Appeals decision.
In an Oklahoma case, Independent School
District No. 5 of Tulsa County v. Spry, the
school district sued the parents regarding the constitutionality of a voucher
program that provided vouchers to students with disabilities.[12] The
lower district court ruled that the voucher program was unconstitutional,
however, on appeal, the Oklahoma Supreme Court refused to address the
constitutionality of the voucher program because the school district did not
have standing to sue the parents. It stated in its unpublished decision, that “the school
districts are not taxpayers themselves, whom this Court has long recognized
have a right to challenge the illegal expenditure of public funds.” The court further states, “the parents are
clearly not the proper parties against whom to assert these constitutional
challenges. We hold that the school districts have neglected to meet the
threshold standing requirement for constitutional challenges.” [13]
Considering that the court did not make a determination regarding the
constitutionality, one could anticipate that the school district will look into possible future action. This matter will most likely be brought again
with individual citizens and taxpayers as the Plaintiffs and the Education
Agency as the defendant.
These school voucher decisions will impact education policy for the years to come. As more organizations advocate for education
reform, we will see more and more states create voucher programs. The complication or ease in the creation of
these programs will depend on the language in that state’s constitution. The litigation involving these programs will
continue to transform the definition of Public Education. Only the future
will tell us what that definition will be. On another note, what is going on with virtual charter schools in Pennsylvania? I can smell the litigation!!!
By: Tiffany Puckett
[1]
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
[2]
Louisiana Association of Educators, et al, v. State of Louisiana, case number
and opinion not available. The case was
decided by the 19th District Court in Louisiana. Information regarding the opinion retrieved
on December 1, 2012 from various websites, including, the Louisiana Association
of Educators website located at http://www.lae.org/news.asp?nid=190.
[3]
Meredith v. Daniels, No. 49S00-1203-PL-00172, (Ind. filed Jan. 20, 2012).
[4]
Id.
[5]
See Ind. Code §§
20-51-1-4.7; 20-51-4 et seq.; 20-51-4-1.
[6]
Meredith v. Daniels, No. 49D07-1107-PL-025402, slip op. (Ind. Sup. Ct. Jan
13, 2012).
[7]
Id. at 9.
[8]
Larue v. Board of Education, No. 11CA1856 and 11CA1857. (Colo. Ct. App. filed
Sept. 2011).
[9]
Id.
[10]
Plaintiff’s complaint, Larue v. Board of Education, No. 11CA1856 and 11CA1857.
[11]
Larue v. Board of Education, No. 11cv4424 and No.11cv4427. District Court, Denver County, unpublished
opinion.
[12] Independent School District No. 5 of Tulsa County
v. Spry, 2012 OK 98, __ P.3d __, decided November 20, 2012,
has not
been released for publication. Until
such time it is subject to revision or withdrawal.
[13]
Id.
