School Law: Indiana’s school vouchers program is challenged

August 3, 2011

School Law(Editor’s note: With August being the “back to school” month for everyone from preschoolers to law students, we’ll be looking at recent important developments in education law throughout the month.)

In May, Indiana became the latest state to employ a “school vouchers” program.

Vouchers are a contentious education program wherein a government issues certificates to be used towards the cost of tuition at a private school.

The funds used for the voucher are typically deducted from the funds of the public school system in which that the student would have normally been enrolled.

Indiana’s voucher system, officially called the “Choice Scholarship Program,” (CSP) is the largest such system in the country so far, and, as of last month, is already being challenged in court.

The suit isn’t being brought by church-state separation advocates, but instead by the Indiana State Teachers Association (the state’s teachers union), who fear massive amounts of public funding being drained by the new system.

While the U.S. Supreme Court has upheld the constitutionality of school vouchers under certain circumstances in 2002’s Zelman v. Simmons-Harris, it’s highly doubtful that this case will use the same reasoning, since the complaint only asserts violations of Indiana’s State Constitution.

Specifically, it claims violations of Article 8, §1, Article 1, §4, and Article 1, §6.

Article 8, §1 states that “it shall be the duty of the General Assembly…to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.”

This creative argument will be successful only if a court accepts the notion that the CSP extends the definition of “Common Schools” to include private institutions that are eligible to receive the vouchers.

Since many such private schools are only open to certain religious denominations and cost more than the vouchers cover, the CSP would be unconstitutional (but, again, only if a court found that the CSP broadened the definition of “Common Schools” to include those private schools).

The next violation alleged is that of Article 1, §4, which holds, in relevant part, that “no person shall be compelled to…support any place of worship, or to maintain any ministry, against his consent.”

In many cases, it’s pretty easy to connect the dots between private religious schools and their parent churches.

Consequently, it’s very possible that the CSP may run afoul of this provision.

However, there isn’t much precedent to guide us on how the Indiana Supreme Court will rule on the issue.

Except on the third argument.

Article 1, §6 forbids state money from being used for religious institutions. 

Dealing directly with a challenge arising under that section, the Indiana Supreme Court’s 2003 ruling Embry v. O’Bannon dealt with a challenge to a program that paid public school teachers for educational services provided to parochial school students.

In the ruling upholding the program’s constitutionality, the majority hinted, but didn’t explicitly hold that state funds may be constitutionally paid to private religious schools.

Writing in a separate concurrence, Justice Theodore R. Boehm strongly rebuked that view of the majority, instead holding that the “Constitution stands squarely against” the “public funding of sectarian schools.”

With Boehm’s retirement in 2010 and his replacement appointed by the same governor who campaigned for CSP, it’s now even more likely that the Indiana Supreme Court will rule school vouchers constitutional.