Monday, February 04, 2013

School Vouchers - Legal Watch

This past week was National School Choice WeekSchool 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 MeredithWe 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 
[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.