Friday, November 23, 2012

Supreme Court's School Voucher Argument Misses The Mark

I had an opportunity to watch the online video recording of the Indiana Supreme Court's oral argument in the case (Meredith et al. v. Daniels) challenging the constitutionality of the state's Choice Scholarship program, which provides vouchers to parents to send their children to a private or religious school of their choice rather than the public school in the district in which they reside. To date, 97% of the schools certified by Superintendent of Public Instruction Tony Bennett's Department of Education are religious schools, most of which are Catholic schools. Several parents brought suit against the state arguing that the Choice Scholarship program violates the prohibition in the state constitution on the use of public funds for religious purposes. Marion Superior Court Judge Michael Keele granted summary judgment in favor of the state, holding that because the program provides the scholarships to the students' parents to enroll students in a private or religious school of their choice, the program is not providing direct state financial support for a religious institution.

The focus of the argument before the Supreme Court is on Article 1, Section 6, which provides that "[n]o money shall be drawn from the treasury, for the benefit of any religious or theological institution." The challenge to the statute's constitutionality is based on a facial interpretation of the statute, which generally places a higher burden on the party challenging the statute, as opposed to an as-applied interpretation that seeks to invalidate a particular application of the statute. The seminole case both parties cited during oral argument was a 2003 Indiana Supreme Court decision, Embry v. O'Bannon, which challenged the state's dual enrollment program that allows state-funded public schools to pay teachers to teach certain classes in parochial schools, which includes students also enrolled in the public schools that in return get to count the students enrolled in the parochial school in their average daily enrollment that determines the amount of state aid a public school receives.

In Embry, a decision authored by the Court's current Chief Justice, Brent Dickson, the Supreme Court upheld the dual enrollment program, holding that the statute did "not confer substantial benefits upon any religious or theological institution, nor directly fund activities of a religious nature" so as to violate Section 6. The Court interpreted Section 6 "to permit the State to contract with religious institutions for goods or services, notwithstanding possible incidental benefit to the institutions, and to prohibit the use of public funds only when directly used for such institutions' activities of a religious nature." Justices Boehm concurred in the result allowing the expenditure of public funds for strictly sectarian teaching purposes, but he sharply dissented to Dickson's implication in his opinion that Section 6 did not prohibit public funding for parochial schools because they weren't "religious institutions." "No one claims that the church-affiliated schools involved in this litigation provide a purely sectarian curriculum," Boehm wrote. "Rather, although they raise their pupils in different faiths, each of these schools teaches its own single religious or theological doctrine as creed. That in my view plainly renders each of them a "religious institution." Boehm traced the historical context of the adoption of the 1851 state constitution and believed the addition of Section 6 was intended "to expand, not contract, the type of religious entities for which public expenditure is prohibited" as Dickson's opinion implies.

Interestingly, the state's Solicitor Gereral Tom Fisher appeared to concede that Justice Boehm had the stronger argument on the purpose of the addition of Section 6 to the state's constitution in Embry. His argument focused on the form of the statute over its substance. Fisher even conceded that there was no way of preventing funds paid to educate the students at religious schools from being used for religious, as well as education purposes. Because the primary purpose of the scholarships was for sectarian educational purposes, it did not run afoul of Section 6 he contended. If the state had chosen to provide direct funding to religious schools for educating students rather than vouchers couched as scholarship awards to the parents to select the school of their choice, Fisher believed the statute would have violated Section 6. The attorney for the parents insisted that despite the nomenclature used in the statute, the funding was still passing directly from the state to the religious schools.

I think the attorneys for the parents challenging the statute made a big mistake by not challening the Choice Scholarship program on an as-applied basis as well as a facial challenge. I was also disappointed arguments did not also focus on Article 1, Section 4, which provides that "[n]o preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent." By using our tax dollars to support religious schools, Indiana's citizens are arguably being compelled to support and maintain religious ministries against their consent. Most of the schools certified for participation in the program are Catholic or fundamentalist Christian churches, but the Hebrew Academy of Indianapolis and Islamic School of Indianapolis are also certified participants in the program. Many of these schools discriminate in admissions against persons who are not affiliated with their religion. Indeed, the enabling statute permits them to do so. "An eligible school may not discriminate on the basis of race, color, or national origin" according to the statute. Noticeably missing is discrimination based on gender and religion.

During the oral argument, Justice Mark Massa defended the statute as being "religious neutral." It is true that the statute makes no reference to religion, but 97% of the schools participating in the program are clearly not religious neutral and heavily mix religious teaching with their sectarian teaching curriculum. The Islamic School of Indianapolis, the Hebrew Academy of Indianapolis and Calvary Christian School are examples of schools where religious teaching is heavily mixed in with the sectarian teaching. That's one of the reasons I think the opponents of the law should have included an as-applied challenge, in addition to their facial challenge.

Massa suggested that providing scholarships to send students to these religious schools was no different than providing state-funded scholarships to students who attend a religious affiliated universities like Notre Dame. As the parents' attorney pointed out, virtually all religious-affiliated universities have pretty much abandoned the inculcation of their religious beliefs as part of their curriculum in favor of sectarian-only teaching in order to qualify for federal funding. Most religious-affiliated schools do not discriminate in their admissions based on a student's religious affiliation. The U.S. Supreme Court applies a "pervasive sectarian test" in determining whether schools run afoul of the U.S. Constitution's Esablishment Clause.  "Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting" under the "pervasive sectarian test."

The parents' attorney tried to remind the Court that the poor state of public education in this state prior to the adoption of the 1851 Constiution was due in large part to no uniform, state-funded public education system. Most public spending on education at the time, albeit meager funding, was being spent on private, religious schools. Shortly before the adoption of the 1851 Constitution, the state's voters approved a public question calling for the establishment of a uniform, public education system. To that end, Article 8 provided that the General Assembly "shall . . . provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all." Article 8 further established a common school fund as a perpetual funding source for the state's schools and established the state Superintendent of Public Instruction as a constitutional officer to oversee the state's education system. The state contends the Choice Scholarship program does not run afoul of Article 8 because it does not receive its funding from the common school fund, but that argument seems specious. We all know that state revenues are to a large degree fungible and more money spent elsewhere usually means less money spent somewhere else. It's hard to argue that the Choice Scholarship program will not result in a reduction in state funding for our public school systems.

On one final note, I couldn't help but wonder whether Justice Massa should have recused himself from participating in this case. He was, after all, chief legal counsel to Gov. Mitch Daniels, whose office worked closely with Supt. Tony Bennett's office to help draft, lobby and steer the Choice Scholarship legislation through the state legislature, prior to him being appointed to the Court by Gov. Daniels. Nobody watching that oral argument could believe that he has an open mind about the legislation, and he certainly made little attempt to hide his views. It's one of the crowning achievement of his former boss. I think the parents' attorney made a mistake in not publicly calling on him to recuse himself, if for no other reason than to put him on notice that he was being watched closely.


Paul K. Ogden said...

Great analysis, Gary. You also did a good job of highlighting the distinction between public money being used to attend religious colleges/universities and relilgious K-12 schools. I'd never heard that argument before...though I'm not sure how much they were able to develop those facts in a case that's not an "as applied" challenge.

Pete Boggs said...

"Common schools" were a default or last resort option of minimum standard, affordability of preference left to families & parents- not force fed & funded secularism.

Gary R. Welsh said...

I wholeheartedly respect the rights of parents to send their children to a private, religious school, but it's a bridge too far to expect taxpayers to pay for their religious school upbringing. If you check out the websites for some of those schools, you find yourself shaking your head to think that taxpayer dollars are funding that type of education. Some of these schools do not offer open enrollment and devote substantial portions of the learning time towards inculcating students in a particular religious theology. None of the major Catholic universities are operated in this manner. The facts weren't developed at all in this case, Paul, or at least it didn't appear so based on the discussion during the oral argument.

Gary R. Welsh said...

Conservative were pushing vouchers many years ago when I used to work for the Illinois legislature. One of the most conservative members in the House Republican caucus was very vocal in her opposition to vouchers because she didn't want the government telling religious schools how they had to be operated. She wanted them to remain independent and focused on their core mission. She knew that would be lost if government money entered the picture with all of the strings attached. It doesn't look to me like the state has made much attempt to place very many strings on the money these schools are receiving by design, which is all the more reason for concern that the money is being used for religious purposes in direct violation of not only the state constitution but the federal constitution as well.

Pete Boggs said...

Schools not offering open enrollment are likely at or need additional capacity to take on more students. Many private schools have waiting lists due to the capacity issue, born in great part to the unwarranted, overcompensation of the government model system- exaggeration of statism at the expense of education.

Private schools can now make market adjustments for additional capacity.

We know firsthand that one midtown Catholic school experienced a 14% enrollment increase- in the first year of the family choice or voucher program! New students at this school are doing well & making a contribution all their own.

Outcomes trump superficial social engineering. Loss of theological mission at the university level is the very educational & principled deficiency which bedevils the Republican party...

varangianguard said...

As soon as the Indiana Supreme Court finds for the State, I am going to start asking for my vouchers for everything else the State (and local governments too!) provides taxpayer monies for. After all, the same general concept should apply for all tax monies, I'm thinking.

I should be able to get vouchers so I can choose where my tax monies are spent for development, infrastructure, emergency services, and so on.

I, for one, am really looking forward to the potential for opportunities that this will present to me.