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The Institute for Quality Education
is a locally based non-profit organization focused on improving the quality of education for all Indiana students.

State's High Court Upholds Voucher Law as Constitutional

The Statehouse File, Franklin College | March 26, 2013
Lesley Weidenbener and Sam Quinn

INDIANAPOLIS – The Indiana Supreme Court ruled unanimously Tuesday that the state’s two-year-old private school voucher program does not violate the Indiana Constitution.

The decision comes as the Republican-controlled General Assembly is working on legislation to expand the program by loosening income guidelines for some students and letting kindergartners start at a private institution without first attending a public school.

House Education Chairman Bob Behning, an Indianapolis Republican and key proponent of the law, said the decision takes away one of the arguments opponents have been using to fight it.

“We always felt that we had done our work and that constitutionally we did not have an issue with the way it was created,” Behning said. “Obviously now they’ve validated it, confirmed it.”

The General Assembly passed the voucher law in 2011 and the Indiana State Teachers Association quickly filed suit to stop it from taking effect. A Marion County Superior Court judge ruled in favor of the voucher law last year. ISTA appealed and the state’s highest court took the case.

The central question for the court was whether the benefits from vouchers directly or incidentally benefit some religious-based schools.

ISTA argued the vouchers directly underwrite religious-based teaching. But Indiana Solicitor General Thomas Fisher – who represented the state – had told the court that the voucher program is about educational choice, not religion.

In its decision on Tuesday, the court said that the Indiana Constitution does not intend to prohibit religious institutions from receiving indirect government services “such as fire and police protection, municipal water and sewage service, sidewalks and streets” but only prohibits expenditures directly benefiting those institutions.

The direct beneficiaries of the voucher program are not the schools but those eligible families who are free to select which schools to attend, the court said.

State Superintendent Glenda Ritz, a Democrat, was an original plaintiff in the case. That was before she ran for state office. After she defeated incumbent Republican Tony Bennett – who helped push the vouchers into law – Ritz removed her name as a plaintiff.

She said in a statement Tuesday that she will “follow the court’s ruling and faithfully administer Indiana’s voucher program.”

“However, I personally believe that public dollars should go to public schools, and I encourage Hoosiers to send that message to their representatives in the Statehouse,” she said.

Just minutes after the court released its decision, the superintendent’s legislative director – John Barnes – said he was disappointed and surprised that the decision was unanimous.

“Our biggest concern continues to be that taxpayer money ought to be used in schools that are true public schools that serve all kids,” Barnes said. “As the arguments are made about school choice, it’s distressing to us that in a lot of cases, the schools are actually picking the children not the children picking the schools.”

The voucher program – the broadest in the nation – allows low- to moderate-income families to obtain state-funded vouchers to pay for up to 90 percent of private school tuition. Currently, the law requires students to attend a public school for one year before using a voucher.

In its first year, nearly 4,000 students participated. This year, 9,324 families signed up.

Gov. Mike Pence, who backs the voucher expansion, said he welcomed the unanimous decision. He said it allows lawmakers to look at opportunities to further expand school choice in Indiana.

“I have long believed that parents should be able to choose where their children go to school, regardless of their income,” Pence said in a prepared statement. “Now that the Indiana Supreme Court has unanimously upheld this important program, we must continue to find ways to expand educational opportunities for all Indiana families.”

The court decision – written by Chief Justice Brent Dickson – emphasized that the court did not consider the public policy merits of the voucher program.

“Whether the Indiana program is wise educational or public policy is not a consideration germane to the narrow issues of Indiana constitutional law that are before us,” the ruling said. “Our individual policy preferences are not relevant. In the absence of a constitutional violation, the desirability and efficacy of school choice are matters to be resolved through the political process.”

Senate Minority Leader Tim Lanane, D-Anderson, said despite the ruling, he feels the General Assembly needs to study the financial impact of vouchers more.

“We must be careful not to judge this as an affirmation of vouchers, if anything it should give even more reason for pause,” he said. “Therefore, before expanding this program any further, we will push for a study of the long-term impacts of vouchers. A study previously called for by members of both parties.”

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