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Friday, November 23, 2012

Ind. Decisions - Supreme Court hears oral argument in school voucher challenge

On Wednesday morning the Supreme Court heard oral argument in the case of Teresa Meredith et al. v. Mitch Daniels, et al. This is the school voucher challenge and is a direct transfer from the trial court. Here is some of the coverage.

Eric Bradner of the Evansville Courier & Press reported late on Nov. 21st in a story that begins:

Indiana's Supreme Court justices on Wednesday grilled attorneys on both sides of the state's school voucher program over whether it meets constitutional muster. The law has so far led to more than 9,000 students switching from public to private schools.

Much of the hour of oral arguments focused on whether the vouchers, which pay at least $4,500 worth of tuition bills per student, go to benefit religious institutions directly, as opponents argue, or primarily benefit the children and their families, as supporters say.

A ruling from the five-member panel is expected within a few months.

John West, the attorney representing several of the law's challengers, said the framers of Indiana's 1851 constitution were seeking to stop the state's education dollars from being divvied up "at the expense of the public school system."

Thomas Fisher, the Indiana solicitor general who defended the state's 2011 voucher law, said it belongs in the same category as charter schools, home schooling, allowing students to transfer to another school in their district and more.

"It is part of a larger array of choices," he said. "It is merely an application of an old idea, and that idea is that we're going to fund different educational choices."

West fended off questions about why vouchers in K-12 education should not be allowed, but state-funded scholarships to private universities for college students should be permissible. He said the difference is that vouchers are "a benefit that is incidental to a permissible secular purpose."

"Here, the state is directly paying for the teaching of religion, and that's what the tipping point is," he said.

The voucher law targets low- and middle-income families, offering tiered tuition payments based on income and based on the amount the state pays to the public schools the students would otherwise attend.

Robert William Gall, another pro-voucher attorney, said school choice exists whether the state's voucher program stands or not, but that the question lawmakers sought to answer in approving it in 2011 was, "Do we want to make it available to everyone or only the wealthy?"

From Niki Kelly's story in the Fort Wayne Journal Gazette, headed "Indiana Supreme Court wrestles with vouchers’ fine points":
The Indiana Supreme Court took up the battle over state-paid, private school vouchers Wednesday, parsing over whether the program benefits religious institutions directly or is just an incidental benefit of educational choice.

The justices were active in asking questions about the constitutionality of the program, while also appearing skeptical about overturning the law.

“The purpose of the legislation has primarily to do with education – not fostering religion,” said Chief Justice Brent Dickson.

But opponents argue that 97 percent of the participating schools are religious in nature, and they receive a direct benefit in the form of millions of dollars.

“Here the state is directly paying for the teaching of religion,” said John West, the attorney arguing against vouchers.

Legislators passed the voucher law in 2011. It is the most expansive program in the country because its income guidelines are wide and students from all schools – not just failing schools – are eligible. A family of four, for instance, can make up to $62,000 and still qualify for tuition assistance.

New data released Tuesday showed more than 9,000 students now are going to private school using $38 million worth of state-paid vouchers.

The Indiana State Teachers Association and a host of plaintiffs filed suit against the program a few months after its passage. They claim it will drain resources from public schools and that tax money should not be used to support religious education. * * *

The U.S. Supreme Court ruled in 2002 that state vouchers for parochial students don’t violate the U.S. Constitution. But the ISTA lawsuit is based on the Indiana Constitution, which has different language.

The justices focused quickly on the provision of the Indiana Constitution saying “no money shall be drawn from the treasury, for the benefit of any religious or theological institution.”

Justice Robert Rucker questioned whether the money was benefiting the schools or the kids and parents.

“Any money that winds up in the coffers of a religious institution is only there because of a decision by a parent and student,” said Thomas Fisher, arguing on behalf of the Indiana Attorney General’s Office.

Justice Mark Massa also asked several questions about whether a decision in this case could negatively impact millions of dollars in state money going to college scholarships at private, religious colleges such as the University of Notre Dame.

West seemed to wrestle with explaining the distinction between scholarships used for a voluntary college education and vouchers used for mandatory K-12 education.

The Indianapolis Star story is reported by Chris Sikich. Some quotes:
The Indiana State Teachers Association, which has fought many of the reforms, is among opponents who want the five justices to overturn the voucher law. The association says 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 program’s defenders, including the Indiana attorney general’s office, say parents are free to send their children and direct the money to pay tuition at any school they want — public, private or parochial. The law was upheld by a Marion County court in January

There is no timetable for a decision. But Joel Schumm, a professor at Indiana University’s Robert H. McKinney School of Law, said he’d be surprised if the law was overturned. He attended the hearing and has studied the court.

Schumm said the plaintiffs had a “steep uphill climb” because the Indiana Supreme Court has in the past deferred to policy decisions by the legislature in crafting state statues, and a clear argument must be made to overturn one. Recently, the court has upheld the Indiana Toll Road lease and the voter identification law.

“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.” * * *

Robert W. Gall, a private attorney representing parents in support of vouchers, told the court the money benefits parents for their children’s education. But John West, a Washington lawyer representing voucher opponents, said the money does benefit religious institutions even if it’s filtered through a voucher to parents. And while that cash may be intended for education, he said, it benefits the institution.

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.”

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. West said he sees a distinction between academic-based college curriculums and religious K-12 schools. State attorneys said they saw little difference.

Schumm said that’s another instance in which the plaintiffs 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.”

ILB: Listen to the oral argument here.

The ILB entry links to the parties' briefs.

[More] Good AP coverage here, via the $$ Bloomington Herald-Times. A quote:

The five justices prodded lawyers for both sides on the vouchers’ consequences as they heard a constitutional challenge to the 2011 law under which more than 9,000 students have switched from public to private schools with help from state funds. The program was pushed by Gov. Mitch Daniels and is considered a model of conservative Republicans’ approach to overhauling education. * * *

The Indiana case is being closely watched because the vouchers are available to middle-class students. Voucher programs in other states are generally limited to low-income students or those in failing schools. Conservative Republicans say the vouchers offer families more choices and will boost education by giving public schools greater incentive to improve. Critics contend the vouchers could cripple public schools by diverting desperately needed funds.

Posted by Marcia Oddi on November 23, 2012 08:57 AM
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions