The Indiana Supreme Court ruled 5-0 Tuesday that the state’s voucher program is constitutional. Opponents had argued that it violates the First Amendment’s prohibition on the establishment of religion, since some of the education funds distributed through the program end up going to religious schools.
“We first find it inconceivable that the [Indiana state constitution’s] framers and ratifiers intended to expansively prohibit any and all government expenditures from which a religious or theological institution derives a benefit — for example, fire and police protection, municipal water and sewage service, sidewalks and streets,” the court stated in its opinion.
Because the U.S. Supreme Court used similar reasoning in its 2002 decision in Zelman v. Simmons-Harris, an Ohio voucher case, this is effectively the end of constitutional complaints against Indiana’s voucher program. That’s good news for the 9,324 Indiana kids who took advantage of the state’s program this school year. Indiana parents have told me they’ve been waiting on pins and needles to see if their children would be pushed back into schools that, for myriad individual reasons, don’t work well for them. Fortunately, that won’t be happening. And this fall, the program’s enrollment cap lifts, meaning any Indiana child from a low- or middle-income family will be able to get a voucher.
Indiana has the biggest voucher program in the country outside Louisiana, where teachers unions have also hauled poor kids’ education opportunities into court. There, Governor Bobby Jindal has promised he will call a special session of the state legislature if the Louisiana Supreme Court knocks down the program, in which 4,944 children are now enrolled. Almost twice as many Louisiana children wanted a voucher than got one this school year, simply because private schools don’t have enough room to accommodate everyone. That’s changing. Louisiana choice schools, including well-performing independently run charter schools, are scaling up as fast as they can.
School choice opponents generally file lawsuits as soon as voucher programs become law. Last month, for example, they tried to sue an Alabama tax-credit scholarship program out of existence before the governor signed it into law — an audacious move that the Alabama Supreme Court summarily rebuffed. No matter: As soon as the governor approved the school choice program, opponents hauled it right back into court.
In Colorado, a pioneering school district recently decided it would offer its own voucher program, contracting with private schools to educate students who signed up. So many families wanted in that enrollment hit its 500-student limit just weeks after the district introduced the program. The American Civil Liberties Union quickly sued to block it from being implemented. In February, a Colorado appeals court ruled that the program is constitutional, so the ACLU has appealed to the Colorado Supreme Court. Meanwhile, the kids wait.
Becky Barnes’ autistic son would have received one of those Colorado vouchers, which would have allowed him to go to a special school with small class sizes. Becky told me that her son has “sensory issues” that make it difficult for him to focus in a traditional public school. For the time being, he’s taking classes online.
“A child needs to be in a school that suits them, so this isn’t about religion or anti-public schools,” she said, adding that her two other children attend public schools. “When your kid comes home and you know they’re not fitting in and you want to give them another option, then you understand.”
Indiana parents with similar concerns will now be able to do something about them. Outside Indiana, Barnes and parents like her still wait.