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Tuesday, March 01, 2011
Ind. Law - School vouchers and the Indiana constitution
Scott Elliot of the Indianapolis Star reported yesterday under the heading "Will state's top court settle school vouchers?." Some quotes from the lengthy story:
Even before it became ensnared in the legislature's political standoff, a bill that would allow parents to use public dollars to send their children to private schools had begun to stir debate over an important question: Is it constitutional? * * *The conventional wisdom in the legal community is that House Bill 1003 most definitely would not violate the U.S. Constitution; that issue was generally resolved in a 2002 case involving a school voucher program in Cleveland.
What's not so clear, however, is whether it violates Indiana's constitution. * * *
The legal debate in Indiana is based on two sections in the state constitution. One centers on the state's provisions establishing public schools as tuition-free and open to all. The other is the state's language on the separation of church and state, language that legal scholars say goes beyond what the U.S. Constitution requires.
Indiana's constitution includes a direct prohibition on state aid to religious institutions: "No money shall be drawn from the state treasury, for the benefit of any religious or theological institution." * * *
"Probably most of the private schools would be religious schools," said Nate Schnellenberger, president of the Indiana State Teachers Association. "In effect, it would be a government subsidy for religious schools. We think that's wrong."
That was a central issue in the Cleveland case before the U.S. Supreme Court, which ruled vouchers are constitutional, in great part because parents have a choice -- they don't have to choose religious-affiliated schools. Even in Cleveland, where nearly all families used vouchers for religious schools, the court found they had other choices, such as magnet schools and charter schools. As long as parents made the choice among a variety of options, the program was constitutional, the justices ruled.
That case set an important precedent, but it's not an open-and-shut issue. In states with language close to Indiana's, state courts have cited those provisions in striking down voucher programs.
That's what happened in Arizona in 2009. Its constitution forbids public money to be "appropriated to any religious worship exercise or instruction or to the support of any religious establishment."
Still, voucher supporters in Indiana are confident. They argue that Indiana case law has strongly favored allowing public dollars to flow to religious institutions as long as it is for a purpose and not simply to "benefit" them.
For example, in the 2004 case Embry v. O'Bannon, the Indiana Supreme Court allowed a program that paid teachers for certain courses taught at parochial schools.
Posted by Marcia Oddi on March 1, 2011 01:24 PM
Posted to Indiana Law