Indiana Court Upholds School Choice Program, Invites Hope for Oregon’s Kids

On March 26, the Indiana Supreme Court issued a unanimous opinion holding that the state’s Choice Scholarship Program is constitutional. Indiana’s voucher program is one of the most expansive school choice reforms in the country, permitting any child eligible for free or reduced-price lunch to receive a voucher to attend a private school―whether or not the school is religious. The Choice Scholarship Program is only two years old, but already 9,324 low- and middle-income families are participating.

A group of state taxpayers funded by a teachers’ union filed suit against the program in May 2011. Meredith v. Daniels alleged that the voucher program violates the IndianaConstitution, which requires the state “to provide, by law, for a general and uniform system of Common Schools.” The plaintiffs claimed that allowing students to choose a private school violated this duty. (A similar argument overturned Florida’s opportunity scholarship program in 2006.) However, the Indiana Supreme Court rejected this argument, noting that it was inconsistent with the plain text of the state’s constitution.

The plaintiffs also alleged that the voucher program violated the state constitution’s provision forbidding the state from compelling individuals to support “any place of worship” or “ministry,” and another provision forbidding the state from drawing money from the treasury for the benefit of a religious or theological institution.* (However, the U.S. Supreme Court ruled in Zelman v. Simmons-Harris in 2002 that Ohio’s voucher program does not violate the establishment clause in the U.S. Constitution, undercutting the argument that institutions, rather than parents, are the primary beneficiaries.)

The Indiana Supreme Court rejected the “religious support” arguments, noting that government expenditures frequently benefit religious institutions. “[F]or example, fire and police protection, municipal water and sewage service” all benefit religious institutions:

“Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public.”

The court explained that such benefits were ancillary to the substantial benefits received by families:

“The direct beneficiaries under the voucher program are the families of eligible students and not the schools selected by the parents for their children to attend. The voucher program does not directly fund religious activities because no funds may be dispersed to any program eligible school without the private, independent selection by the parents of a program-eligible student. Participation in the voucher program is entirely voluntary for parents of eligible students.”

The Indiana Supreme Court’s interpretation of its state constitution in favor of parents’ directing their children’s education should encourage families in other states across the country. Vouchers, education tax credits, and opportunity scholarship programs have demonstrated repeatedly that children benefit from educational choice. Oregon has some limited forms of school choice, including over 100 charter schools and open enrollment among some public schools; but Oregon parents still deserve better. Hopefully, victories like Indiana’s will provide support for states like Oregon to recognize the right of parents to choose options for their children beyond their local public school.

* Oregon’s constitution has a nearly identical provision, stating: “No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution.” Anti-school-choice groups in Oregon have used the same arguments against proposals for voucher or tax credit funded scholarship programs.

Christina Martin is an attorney with Pacific Legal Foundation, a nonprofit legal foundation devoted to litigating for freedom, property rights, and individual rights, including school choice. She is a former policy analyst for Cascade Policy Institute, Oregon’s free market public policy research center.


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