Bert Gall: Indiana school voucher ruling further marginalizes Florida court decision

Editor’s note: This post was written by Bert Gall, senior attorney with the Institute for Justice and the institute’s lead attorney in the Indiana voucher case.


Yesterday, in Meredith v. Pence, the Indiana Supreme Court held that Indiana’s Choice Scholarship Program (CSP) does not violate the state constitution. By unanimously rejecting the legal claims brought by national and state teachers unions, the court ensured that the school voucher program – which provides publicly funded scholarships that low-and middle-income families can use to send their children to private schools or out-of-district public schools – will survive. Indeed, because about 62 percent of Indiana families are eligible to receive the school vouchers, the legal path is now clear for the CPS to become the largest school-choice program in the country.

That’s great news, not just for Indiana parents, but for all parents in every state who are clamoring for school choice so they can provide their children with a quality education. This is because the unions’ legal claims focused on two types of constitutional provisions that are common in most other state constitutions: 1) provisions requiring that states provide a “general and uniform” system of public education; and 2) provisions forbidding state support of religion.

The unions principally rely upon these two types of provisions when they challenge school choice programs. But unfortunately for them, state courts – particularly those that have yet to apply their provisions to school-choice programs – will now look to the Indiana Supreme Court’s decision for guidance when evaluating claims brought under those provisions. Fortunately for advocates of school choice, that guidance is both persuasive and intellectually sound.

First, the court showed that the duty to provide a “general and uniform” system of public schools is not violated when a state provides educational options above and beyond that system. Significantly, the court refused to adopt the Florida Supreme Court’s terribly flawed decision in Bush v. Holmes, a 2006 case which held that Florida’s analogous provision only allows educational funds to be spent on public schools. Just as they did in Indiana, teachers unions are attempting to export the holding of that decision (in which the Florida Supreme Court ignored both the plain language of its provision and misapplied basic canons of statutory construction) to other states with similar provisions. That task just got a lot harder: Holmes was already considered a flawed decision and a legal outlier, but today’s decision further marginalizes it.

Second, the Indiana Supreme Court demonstrated that state religion clauses are only intended to preclude direct funding of religious institutions – not funding that incidentally benefits those schools as a direct result of aiding individuals. It held that the CSP

provide[s] lower-income Indiana families with the educational options generally available primarily to higher-income Indiana families. The result is a direct benefit to these lower-income families—the provision of a wider array of education options, a valid secular purpose. Any benefit to program-eligible schools, religious or non-religious, derives from the private, independent choice of the parents of program-eligible students, not the decree of the state, and is thus ancillary and incidental to the benefit conferred on these families.

By refusing to adopt the flawed reasoning of Holmes, and by reinforcing holdings of the Ohio and Wisconsin state supreme courts upholding similar programs, the Indiana Supreme Court has both solidified the growing body of case law supporting school choice and exposed the flaws in the teachers’ unions’ favorite legal claims.

The unions filed their lawsuit hoping to kill the Indiana School Choice Program; instead, they ended up shooting themselves in the (legal) foot.

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BY Special to NextSteps


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