The Indianapolis Star reports that the Indiana Supreme Court has heard arguments in the suit seeking to overturn the State’s school voucher program, the largest such program in the nation. The Indiana State Teachers Association, one of the parties opposing vouchers, contends school vouchers violate the state constitution because they direct taxpayer money to religion-affiliated schools, money that otherwise would have gone to public schools. The Indiana Attorney General’s Office defends the voucher law saying parents are free to send their children and direct the money to pay tuition at any school they want – public, private, or parochial.
Professor Joel Schumm of Indiana University’s Robert H. McKinney School of Law, who attended the arguments, believes the high court will uphold the voucher program. “It’s a very, very slim chance they would find this unconstitutional,” Schumm said. “I didn’t get the sense any of the justices had serious concerns about it.” The main issue in the case is whether the program violates the state constitution’s ban on sending state money “for the benefit” of religious institutions.
Schumm said the justices had tougher questions for the plaintiffs than for the State, indicating the burden was on the law’s opponents. “And I don’t think the plaintiffs gave them any hook they could hang an opinion on this, calling this unconstitutional.”
The justices also wanted to know about the broader implications of funding religious programs. They asked each side whether a ruling overturning the law also would ban state money directed toward religion-affiliated colleges such as Notre Dame and Anderson University. Attorney John West, representing the voucher opponents, argued that there is a distinction between academic based college curricula and religious K-12 schools. State attorneys said they saw little difference.
According to Schumm, voucher opponents struggled to draw a distinction. “When the justices asked questions about how this would affect college scholarships,” Schumm said, “the plaintiffs’ lawyer wasn’t able to draw a line that would make it possible to find the voucher law unconstitutional without causing havoc in other areas. I don’t know how they could draft a narrow opinion finding this unconstitutional and not finding problems for other programs.”
Although the U.S. Supreme Court already has ruled that vouchers are constitutional so long as parents have other nonreligious public or private school options, as is the case in Indiana, the Indiana Constitution has a different, and stricter, separation of church and state provision.
Source: Indianapolis Star, 11/21/12, By Chris Sikich
[Editor's Note: The U.S. Supreme Court decision referenced in this article is Zelman v. Simmons-Harris, 536 U.S. 639 (2002). In October 2012, NSBA submitted an amicus brief in Niehaus v. Huppenthal to the Arizona Court of Appeals, Division One, in a case addressing whether Arizona's tuition-tax credit program violates the state constitutional provisions mandating separation of church and state and prohibiting the use of public funds to aid religious institutions, such as schools.
NSBA's amicus brief points out that in Zelman, the Supreme Court held "vouchers were constitutionally permissible only where the public schools were part of the framework of choice for parents." The brief stresses that "[i]mplicit in that ruling is the notion that voucher programs should not be vehicles for diverting money into private hands, but that they should be part of a framework the intent of which is to provide educational options through true choice.”
In January 2012, Legal Clips summarized a Marion Superior Court decision in Meredith v. Daniels, which granted the State of Indiana summary judgment in a suit challenging the validity of the state’s private school voucher law, known as the Choice Scholarship Program (CSP), under the state constitution. The court concluded that the CSP, which allows “disadvantaged Indiana primary and secondary school students to receive scholarships to attend private schools or public schools in other districts that charge transfer tuition,” did not run afoul of Article 8, Section 1; Article 1, Section 4; or Article 1, Section 6 of the Indiana Constitution.
The court in that case also rejected the plaintiffs’ latest argument that the degree of religiosity – “the extent to which religion is pervasive” – of religious schools participating in CSP renders the program unconstitutional. It held that whether participating religious schools are pervasively sectarian is immaterial.]