ERIC ED531826: School Choice Issues in Indiana: Sifting through the Rhetoric. Education Policy Brief. Volume 9, Number 3

2011·0.16 MB·English

by  ERIC

Education Policy Brief
School Choice Issues in Indiana: Sifting through the Rhetoric
Rebecca L. Billick, Stephen C. Hiller, and Terry E. Spradlin
VOLUME 9, NUMBER 3, SUMMER 2011
CONTENTS INTRODUCTION SCHOOL EXPENDITURE
DEDUCTION
Introduction.........................................1
The notion of school choice is over 200
School Expenditure Deduction...........1 years old. In 1776, Adam Smith first pub- Although Choice Scholarships are only
lished The Wealth of Nations and suggested granted to low-income families, all taxpay-
School Scholarship Tax Credit...........1 that “schools could reach a higher quality ers with dependent children can benefit
of education by allowing students to from the new School Expenditure Deduc-
Choice Scholarships............................2
choose their own teachers and schools tion. The School Expenditure Deduction
Voucher Funding.................................3 …[asserting] that if a school’s enrollment allows a taxpayer who has an eligible
began to diminish drastically, the school dependent child to take a tax deduction
Legal Issues..........................................5 would be forced to emulate the popular against her adjusted gross income for unre-
schools and offer high quality education” imbursed education expenditures made in
Looking Forward …What can
(Smith, 1999). In recent history, Nobel lau- connection with enrollment, attendance, or
Indiana learn from others?..............11
reate Milton Friedman helped to renew participation of the child in a private school
Looking Forward...How Should popular interest in school choice through education program or for expenses accrued
Indiana Measure Success?................16 the publication of the article, “The Role of in home schooling the child (IND CODE §
Government in Education,” and subse- 6-3-2-22). A child is “eligible” if he or she
Conclusions and
quent founding of the Friedman Founda- is eligible for a free elementary or high
Recommendations.............................17
tion for Educational Choice (Smith, 1999). school education in an Indiana school cor-
Authors...............................................18 Friedman suggested that by granting fami- poration (IND CODE § 6-3-2-22(a)). The
lies choices in education, both schools and term “education expenditures” includes
Acknowledgements............................18 education would improve. items such as tuition at a private school,
computer software, textbooks, workbooks,
References..........................................18 This year Indiana joined over a dozen other
curricula, and school supplies (IND CODE
states in adopting Friedman’s principles by
Web References.................................20 § 6-3-2-22(2)). The deduction is limited to
passing what many believe to be the most
$1,000 multiplied by the number of depen-
comprehensive school choice program in
dent children for whom the taxpayer made
the country. With the enactment of three
education expenditures (IND CODE § 6-3-
key bills (HEA 1001, HEA 1003, and HEA
2-22(3)(d)). The Indiana Legislative Ser-
1004), Indiana parents may now take
vice Agency estimates that the revenue loss
advantage of a school expenditure tax
UPCOMING POLICY BRIEFS . . to the state from this deduction could poten-
deduction, school scholarships granted
tially range from $3.3 M to $3.7 M annually
from private Scholarship Granting Organi-
(Legislative Service Agency, 2011).
 Revamping the Teacher zations (SGOs) which are incentivized
Evaluation Process
with a tax credit, and Choice Scholarships
 An Update on Childhood Obesity (generally referred to as vouchers) granted
Trends to low-income parents and funded by the SCHOOL SCHOLARSHIP TAX
state of Indiana. This Education Policy CREDIT
 Emotional and Behavioral
Disorders: Promoting Prevention Brief will examine the legal, fiscal, and
and Positive Interventions in School policy ramifications of Indiana’s school Indiana School Scholarship Tax Credits,
Settings choice offerings, particularly the new first passed in 2009, provide a mechanism
Choice Scholarship program. for students to acquire privately funded
scholarships to attend private schools
through the assistance of Scholarship
Granting Organizations (SGOs). SGOs are
non-profit organizations authorized by the 3.1-30.5-13). Although the annual limit on
state of Indiana to receive donations from the amount of tax credits allowed has been CHOICE SCHOLARSHIPS
any individual or entity (IND CODE § 6- increased, it is notable that the Department
3.1-30.5-12). Individuals and entities who of Revenue only granted approximately Although School Scholarship Tax Credits
donate to SGOs can claim a credit against $340,000 of the available $2.5 million in existed prior to the 2011 legislative ses-
state tax liability equal to 50 percent of their credits for fiscal year 2011 (Legislative Ser- sion, school vouchers, or Choice Scholar-
contribution to the SGO. The donations vice Agency, 2011). ships, were a significant addition to
received by SGOs are used to grant scholar- Indiana school choice statutes. The Fried-
No public money ever directly flows to fam-
ships to legal residents of Indiana who are man Foundation for Educational Choice
ilies or schools when a scholarship is
between the ages of 5 and 22 during the cites Indiana’s new voucher program as the
granted by a SGO. The donor’s funds are
year in which the scholarship is utilized largest in the nation due to its broad eligi-
given to the SGO before the funds ever
(IND CODE § 20-51-1-4.5(1)-(2)). SGOs bility (Enlow, 2011).
become part of the state treasury (see Kot-
are allowed to set their own requirements
and application processes, but they may not terman v. Killian). Tax credits given by the The student eligibility for Choice Scholar-
limit the availability of scholarships to stu- state of Indiana for donation to SGOs are ships parallels the eligibility described
dents of only one participating school (IND similar to tax credits granted by the state of above for Scholarship Tax Credits (IND
CODE § 20-51-1-7(2)). The application Indiana for a number of other programs (see CODE § 20-51-1-4.5(4)). After choosing a
process must be fair and neutral, and chil- Table 1 for a sampling of current Indiana tax school for her child, a parent must endorse
dren who are members of families which credit programs). In fact, in 2007, the state the Choice Scholarship distribution from
have incomes of more than 150 percent of of Indiana allowed $2,232,136 in Neighbor- the Indiana Department of Education
the free or reduced lunch levels as estab- hood Assistance Credits (a program which (IDOE) before the funds may be used by
lished by the federal government are not funds both secular and sectarian organiza- the chosen school. Schools receiving
eligible (IND CODE § 20-51-1-4.5(4)). tions in a neutral manner) and allowed over Choice Scholarship funds must meet spe-
$26,000,000 in personal income tax credits cific requirements and adhere to certain
Students seeking scholarships must have for College Choice 529 Savings Plans (also guidelines in order to be eligible to receive
been or plan to be enrolled in an accredited a program where funds are diverted to both funds.
school (IND CODE § 20-51-1-4.5(3)). The secular and sectarian postsecondary educa-
scholarships may only be used at schools tion organizations in a neutral manner). The Indiana Code § 20-51-4-1(a) dictates cur-
that are located in Indiana; require an eligi- use of tax credits to incentivize behavior is ricular standards for schools receiving
ble individual to pay tuition or transfer a relatively common and much debated Choice Scholarship funds while also
tuition to attend; voluntarily agree to enroll practice utilized in both state and federal tax explicitly prohibiting expanded regulation
an eligible individual; are accredited by a structures. For a detailed discussion on the of private schools. The provision expressly
state, regional, or federal agency recognized policies behind the use of tax credits gener- seeks to protect the autonomy of the pri-
by the Indiana State Board of Education; ally see The Dual Subsidy Theory of Chari- vate schools, but provides a list of 15 doc-
administer the ISTEP+; and are not a charter table Deductions, 84 Ind. L.J. 1047, Fall uments such as the Constitution of the
school or the school corporation in which an 2009 (Benshalom, 2009). United States, the Pledge of Allegiance,
eligible individual is a legal resident (IND and the Constitution of the State of Indiana
CODE § 20-51-1-4.7). In addition to better (IND CODE § 20-51-4-1(b)) that eligible
defining the eligibility requirements for schools are barred from censoring and
schools and students seeking school choice required to make available in school librar-
funds, the 2011 legislative session also ies (IND CODE § 20-51-4-1(d-e)). Eligi-
increased the annual limit on the amount of ble schools must allow students to freely
tax credits allowed each year from $2.5 mil-

lion to $5 million during (IND CODE § 6-
TABLE 1. Indiana Tax Credits.
.
Dynamic State Tax
Amount of Tax Credit Cap Misc.
Reduction in 2007
Neighborhood Assistance Credit; $2,232,136 50% of Donation $2,500,000 Funds can be used by
IND CODE §6-3.1-9 religious organizations
Unified Tax Credit for the Elderly; $6,907,760 $40 to $100 per taxpayer depending None
IND Code § 6-3-3-9 on income
Lake County Residential Income Tax Credit; $6,888,233 The lesser of $300 or total amount None
IND CODE §6-3.1-20-4 of property tax liability
IN College Choice 529 Savings Plan Credit $26,001,627 20% of contribution to savings plan None Funds can be used on
IND CODE § 6-3-3-12 religious organizations
Source: Indiana State Budget Agency Tax & Revenue Division, 2010.
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 2
reference these documents, allow an $4,500 for students in grades 1-8; or 3) 90 20-51-3 or a Choice Scholarship under IC
opportunity to recite the Pledge of Alle- percent of the state tuition support amount 20-51-4 in a preceding school year (IND
giance, and display the United States flag if the eligible student is in a household with CODE § 20-51-1-4.5(5)(A)-(B)).
in each classroom (IND CODE § 20-51-4- an annual income equal to the requirement
All schools participating in the Choice
1(f)). for the federal free and reduced lunch pro-
Scholarship program must submit data for
gram, or 50 percent of the state tuition sup-
For students in middle and high schools, category placement under Indiana’s
port amount for a student in a household
eligible schools must, within two weeks accountability system. If an eligible school
with an income no more than 150 percent
before a general election, provide five class is placed in one of the two lowest catego-
of the qualification for the free and reduced
periods of discussion on the systems of ries for two consecutive years, the IDOE
lunch program (IND CODE § 20-51-4-
government of Indiana and the United will suspend Choice Scholarships to new
4(2)). If an eligible student enrolls in an eli-
States, methods of voting, election laws, students for the struggling school for a
gible school for only part of the school
party structures, and the responsibilities of period of one year. If an eligible school is
year, the Choice Scholarship will be
citizen participation in elections (IND placed in either of the two lowest catego-
reduced on a prorated basis. An eligible
CODE § 20-51-4-1(f)(6)). Eligible schools ries for three consecutive years, the IDOE
student is entitled to only one Choice
are also required to provide instruction on will suspend Choice Scholarships to new
Scholarship per school year (IND CODE §
honesty, morality, courtesy, obedience to students until the school is placed in the
20-51-4-6). The amount of the Choice
law, respect for the flags and constitutions middle or higher categories for two consec-
Scholarship is not considered income for
of Indiana and the United States, respect utive years, and if the eligible school is
the purposes of other federal or state grants
for parents, the dignity of honest labor, and placed in the lowest category for three con-
or programs (IND CODE § 20-51-4-11).
other lessons that develop an “upright and secutive years, the IDOE will suspend
desirable citizenry,” respecting other’s Choice Scholarships until the school is
property, and respecting the rights of others placed in the middle or higher categories
to hold their own views and religious for three consecutive years. Eligible stu-
All schools participating
beliefs (IND CODE § 20-51-4-1(f)(7-8)). dents already attending the school may
More broadly, eligible schools are held to a in the Choice Scholarship continue to receive Choice Scholarships
basic curricular standard which includes program must submit (IND CODE § 20-51-4-9(a)).
instruction in English, world languages, data for category
mathematics, social studies, sciences, fine placement under
arts, and health education (IND CODE §
Indiana's
VOUCHER FUNDING
20-51-4-1(f)(9). Lastly, eligible schools
accountability system.
are prohibited from teaching about the vio-
The fiscal impact statement for the Choice
lent overthrow of the United States govern-
Scholarship legislation (HEA 1003-2011)
ment (IND CODE § 20-51-4-1(g)). The
states that the impact on state tuition sup-
IDOE will be required to visit at least five
port expenses from the Choice Scholarship
percent of eligible schools through random
Eligible schools are broadly prohibited program are indeterminable (Legislative
selection to check for compliance (Legisla-
from discriminating based on race, color, Services Agency, 2011); however, due to
tive Services Agency, 2011).
or national origin, and eligible schools the language of HEA 1003, it is possible to
Indiana will phase in the distribution of must especially abide by their individual estimate the funding levels of the Choice
Choice Scholarships among eligible stu- admission policies without discrimination Scholarships compared to public schools
dents. In the 2011-12 school year, the IDOE when considering students who apply for funding.
may award only 7,500 Choice Scholarships and are awarded Choice Scholarships (IND
among eligible students, and in the 2012-13 CODE § 20-51-4-3(a-b)). If an eligible The Legislative Services Agency (LSA)
school year, only 15,000 Choice Scholar- school receives more applications than estimated the tuition support amount that
ships may be awarded. Choice Scholarships Choice Scholarships available to the would be used to pay for Choice Scholar-
are not limited in subsequent school years school, then the school must draw eligible ships based on a student cohort sample of
(IND CODE § 20-51-4-2(b)). students at random from the pool of appli- 1,000. Table 2 summarizes LSA’s calcula-
cants at a public meeting (IND CODE § tions. Since a maximum of 7,500 students
The IDOE must establish procedures for 20-51-4-3(c)). may be awarded a Choice Scholarship dur-
awarding funds to eligible students, but the ing the 2011-12 school year by taking
amount of the Choice Scholarship for each In order to be eligible for a Choice Schol- LSA’s cohort sample of 1,000 and multiply-
student must be less than the state tuition arship, a student must also have either been ing it by 7.5, a maximum of $21,936,240
support amount per student received by enrolled in a school corporation that did could be spent on Choice Scholarships in
each school corporation. Choice Scholar- not charge the individual transfer tuition the 2011-12 school year (approximately
ships are capped at the lesser of three for at least two semesters immediately pre- 0.35 percent of the total estimated appropri-
amounts 1) the sum of tuition, transfer ceding the first semester for which the indi- ation for tuition support in the 2012 calen-
tuition, and fees an eligible student would vidual receives a choice scholarship, or dar year). Likewise, since a maximum of
be required to pay to attend an eligible must have received a scholarship from a 15,000 Choice Scholarships can be
school (IND CODE § 20-51-4-4(1)); 2) scholarship granting organization under IC awarded in the 2012-13 school year by tak-
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 3
ing LSA’s cohort sample of 1,000 and mul- lars follow students whether the student is ber of students in the schools and saved
tiplying by 15, a maximum of $43,872,480 attending a public or private school, and DCPS $5 million due to the federal grant.
could be spent (approximately 0.69 percent the state is granting scholarships to stu- Although, Aud and Michos note, due to the
of the total estimated appropriation for dents in an amount less than it costs the grant, per-pupil funding actually increased
tuition support in the 2013 calendar year). state to educate the student in a public in DCPS, negating any potential competi-
school, the state should save money. How- tive effects of having a voucher program.
As mentioned above, after the 2012-13
ever, to date, the school choice programs Because DCPS did not face any budgetary
school year, there will be no cap on the
have not strictly followed the funds-to-fol- consequences of parent choice, it had no
number of Choice Scholarships that can be
low-student model and, as such, informa- incentive to better manage finances or
distributed, but based on the student popu-
tion on true cost savings for the state are improve education (Aud & Michos, 2006).
lation during the 2009-10 school year and
inconclusive. Here, two prominent school
the Legislative Services Agency’s projec- A second voucher model, the Milwaukee
voucher programs will be examined for
tions for the number of students who will Public Schools (MPS) voucher program,
their funding mechanisms and their fiscal
be in the necessary income ranges, an esti- was established in 1991. Although it has
impacts.
mated 505,083 students will be eligible for been amended since it was originally
Choice Scholarships during the 2012-13 A 2006 study by Susan Aud and Leon passed, the funding formula associated
school year (Indiana Department of Educa- Michos examined the fiscal impact of with MPS currently ensures that state funds
tion, 2011a). It is important to bear in mind Washington, D.C.,’s program. The D.C. allocated to MPS directly correlate to the
that it is highly unlikely the number of stu- voucher program is unique from other state number of students enrolled in MPS.
dents receiving Choice Scholarships will and local programs because although the Therefore, as students accept vouchers and
approach this amount in the near future due majority of revenue for D.C. Public choose to use them in private schools, MPS
to a lack of seats available at eligible pri- Schools (DCPS) comes from local sources, loses money.
vate schools, among other factors. Further, the voucher program is funded by the fed-
The Wisconsin legislature tried to mitigate
even if enrollment in the Choice Scholar- eral government. Due to how the city of
this loss of funds by allowing the city of
ship program approached 500,000 or Washington, D.C., utilizes general funding
Milwaukee the option of increasing prop-
beyond, the state’s cost per student in pro- formulas for DCPS, DCPS loses city funds
erty taxes to supplement funds streaming to
viding a Choice Scholarship will always be each time a student chooses to participate
MPS. As a result, Milwaukee property tax-
less than the state’s cost to educate the stu- in the voucher program, while the city
payers pay twice for the expense of
dent in the public school because of the saves money. A $13 million grant from the
voucher students while taxpayers outside
structure of Indiana’s Choice Scholarship federal government mitigates DCPS’s bud-
legislation. In short, despite arguments to get shortfall from the exiting students and
the contrary, the structure of Indiana’s also gives DCPS a savings in the years
Choice Scholarship program is projected to when the revenue loss from students
save the state of Indiana money. departing with vouchers is less than $13
million. Aud and Michos’s study shows the
Theoretically, when school choice pro-
voucher program saved the city approxi-
grams are structured in a way in which dol-
mately $8 million due to the reduced num-
TABLE 2. Costs of Choice Scholarships as Estimated by the Legislative Services Agency
Household Income Scholarship Level Scholarship Amount Students in Income Tuition Support Used for
(assuming a $5,515 Range out of 1,000 Scholarships
tuition support amount) Student Samplea
Grades 1-8
Max. 100% free/reduced 90% of tuition support $4,500 341 $1,534,500
lunch income level
Max. 150% free/reduced 50% of tuition support $2,758 141 $388,808
lunch income level
Grades 9-12s
Max. 100% free/reduced 90% of tuition support $4,964 164 $814,014
lunch income level
Max. 150% free/reduced 50% of tuition support $2,758 68 $187,510
lunch income level
TOTAL $2,924,832
a The remaining 286 of the 1,000 in the cohort sample are not eligible for Choice Scholarships.
Source: Legislative Services Agency, 2011.
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 4
of Milwaukee benefit as their per-pupil its. The Cato Institute has expressed con- cable, address the recent lawsuit filed by
spending increases. Per-pupil spending cern that vouchers combined with the the Indiana State Teacher’s Association
increases outside of Milwaukee because tuition tax credit would erase any budget- (ISTA) which challenges the constitution-
the state spends less on a voucher for a Mil- ary savings of one program or the other ality of the Choice Scholarship program.
waukee student than it would have spent on executed in solitude: “As written, the [Indi-
educating that child in MPS and those sav- ana] program could have a significant neg-
ings are distributed throughout the state ative impact on state finances if families
rather than kept in MPS (Costrell, 2009). claim both the vouchers and funds from the Establishment Clause of the
state’s existing education tax credits… First Amendment to the United
As is the case in Washington, D.C.,
Critics of expanding educational freedom
States Constitution
because Milwaukee is allowed to increase
always claim, incorrectly, that school
property taxes to mitigate the loss in reve-
choice programs are a drain on public
nue from exiting students, the effects of resources. But the double-dipping that is The First Amendment to the United States
competition and incentives to make MPS allowed under this program could inadver- Constitution provides, in part, that “Con-
more efficient and effective are hindered. tently prove them right” (Schaeffer, 2011). gress shall make no law respecting an
As the IDOE moves forward with imple- establishment of religion, or prohibiting
Indiana’s school choice statutes’ funding
mentation of the Indiana’s comprehensive the free exercise thereof.” This clause, as
structure is similar to Wisconsin’s in that it
plan, it is necessary to keep a watchful eye applied through the Fourteenth Amend-
allows state dollars to “follow students.” In
on the prevalence of “double-dipping.” ment, prohibits any state government from
other words, when a student chooses to use
passing laws which have the purpose or
one of Indiana’s school choice options, the effect of advancing religion.1 The Federal
school from which the student came loses
Establishment Clause is not, however, vio-
per-pupil funding for that student. Because
lated every time money in the possession of
LEGAL ISSUES
the amount of money the state spends on
the state ends up in the possession of a reli-
Choice Scholarships is less than the gious institution.2 Rather, challenged pro-
“In the absence of a constitutional
amount of money the state would spend to
grams are evaluated under a three-part test
violation, the desirability and effi-
educate that child in the public school, the
expounded by the U.S. Supreme Court over
cacy of school choice are matters to
result is a net savings for the state. How-
be resolved through the political pro- the last 60 years. Under the U.S. Supreme
ever, unlike Milwaukee, some local Indi-
cess. This program may be wise or Court’s test, a statute complies with the
ana school corporations will see a loss of
unwise, provident or improvident Federal Establishment Clause if (a) it has a
revenue as students choose private schools.
from an educational or public policy secular legislative purpose, (b) its primary
viewpoint. Our individual prefer- effect neither advances nor inhibits reli-
Indiana’s private schools are not evenly
ences, however, are not the constitu- gion, and (c) it does not create excessive
distributed throughout the state; therefore,
tional standard.” entanglement between government and
funding shifts will not be distributed
evenly throughout the state. A review of The Wisconsin Supreme Court religion.3 If written and administered care-
the IDOE’s listing of private schools in Jackson v. Benson fully, state voucher and education tax credit
Indiana reveals approximately 242 private 578 N.E.2d 602, 610 (Wisc. 1998) programs generally satisfy all three prongs
of the U.S. Supreme Court’s test.
schools, concentrated mostly around urban
areas such as Indianapolis, northwest Indi- Historically, constitutional challenges to
State voucher and education tax credit pro-
ana, Ft. Wayne, and Evansville (Indiana school choice focused on application of the
grams are generally found to have the sec-
Department of Education, 2011b). School United States Constitution’s First Amend-
ular legislative purpose of advancing
corporations in these areas will more likely ment Establishment Clause (otherwise
education. The court in Mueller v. Allen,
see decreased total revenues as students known as the Federal Establishment
for example, held that “An educated popu-
leave the public schools for private Clause) and state establishment clauses.
lace is essential to the political and eco-
schools, as opposed to rural school corpo- Although some state establishment clauses
nomic health of any community, and a
rations where access to private schools is remain a viable option for constitutional
State’s effort to assist parents in meeting
more limited. These schools should, how- challenge, federal jurisprudence to date has
the rising cost of educational expenses
ever, also see decreased expenses as they dismissed the Federal Establishment
plainly serves this secular purpose of
are responsible for the education of fewer Clause as a viable basis for invalidating
ensuring that the State’s citizenry is well-
students. It is important to note that under carefully written school choice statutes. educated.”4 Programs that are designed to
Indiana’s program, although a school cor- (Green & Moran, 2010). The Indiana Con-
poration’s total revenue may decrease due stitution’s Religious Clauses are more
to vouchers, the per-pupil state tuition sup- detailed and stringent than the Federal 1. Agostini v. Felton, 522 U.S. 803 (1997).
port would not decrease. Establishment Clause and therefore require 2. Jackson v. Benson, 578 N.W.2d 602
a slightly different legal analysis. We will (Wisc.1998) (citing Zobrest v. Catalina
Indiana presents a particularly unique fis- address both federal and state establish- Foothills Sch. Dist., 509 U.S. 1 (1993)).
cal situation because its school choice stat- ment clauses; explore less-publicized fed- 3. Agostini v. Felton, 521 U.S. at 819 (quoting
Lemon v. Kurtzman, 403 U.S. 602, 612-13
utes aspire to execute both school vouchers eral Constitutional provisions relevant to
(1971)).
(Choice Scholarships) and school tax cred- school choice in Indiana; and, where appli-
4. Mueller v. Allen, 463 U.S. 388, 395 (1983).
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 5
benefit a broad spectrum of groups by allo- parents of children enrolled in private Likewise, in Rosenberger v. Rector & Visi-
cating aid on the basis of neutral, secular schools that promoted religion.8 Wisconsin tors of the Univ. of Va., the court held that a
criteria that neither favor nor disfavor reli- seemingly observed the error of New university was required to fund a Christian
gion are especially likely to meet the “sec- York’s program and created a program campus newspaper in the same way in
ular legislative purpose” prong of the U.S. which directed educational vouchers to which it funded other student groups The
Supreme Court’s Establishment Clause low-income parents who were then free to Court held that “as long as the benefit was
test.5 Indiana’s school choice statutes meet choose the best school for their child. After neutral with respect to religion, what the
these criteria. choosing a school, the parent endorsed the student did with that benefit, even if it was
voucher to the school.9 to spend all of it on religion-related expen-
Indiana Code § 6-3-2-22 clearly designates
ditures, was irrelevant for purposes of ana-
a secular legislative purpose and casts a
lyzing whether the law or policy violated
wide net by granting a tax deduction spe- the Establishment Clause.”11 It could be
cifically for educational expenditures (up
argued that Indiana’s school expenditure
to $1,000) to any individuals who home-
State voucher and deduction and school tax credit do not vio-
school their dependent children or send
education tax credit late this prong of the Federal Establishment
their dependent children to any private
Clause test because money is never given
programs do not have the
school. Indiana Code § 20-51-1-7 requires
directly from the state treasury to religious
SGOs to make scholarships available for primary effect of
institutions. The tax deduction and tax
more than one participating school and cre- advancing religion when
credit are purely a result of the private
ates various safeguards to encourage neu- they are designed in a way
choices of parents and the private choices of
tral disbursement of the scholarship funds. which (a) neither favors other unrelated individuals and corporations
Likewise, Indiana Code § 20-51-4-1 illus- nor disfavors religion in who choose to donate money to SGOs.12
trates the secular purpose of advancing
defining the program’s
education by listing an unprecedented Indiana’s Choice Scholarships are at higher
beneficiaries, and (b) the
number of documents that all participating risk for violating the “advancing religion”
state funds reach the
schools must make available in order to prong because the source of the funds is, in
maintain eligibility in the Choice Scholar- religious institution fact, the state treasury. However, Indiana’s
ship program. Indiana Code § 20-51-4- through the clear private process for the delivery of state funds to
3(b),(c) promotes a neutral process of choices of citizens. Choice Scholarship recipients mirrors
scholarship administration by prohibiting Cleveland’s process for vouchers, which
discrimination on the basis of race, color, has already survived a Constitutional chal-
or nation origin; requiring the admissions lenge.13 Before any funds are disbursed to
policy of each school to be fairly applied; a Choice Scholarship recipient, parents
and requiring a random drawing from eligi- Thus, the Wisconsin process could not be make a private choice as to which school
ble names when there are not enough open deemed to “advance religion” because it the student should attend. After making the
seats in a particular school to accommodate removed direct government involvement private choice, parents must co-endorse the
the number of applicants. from (a) the choosing of a religious school, voucher with the chosen school. Thus, it
and (b) the funding of a religious school. can be argued the state is merely advancing
State voucher and education tax credit pro- Likewise, the U.S. Supreme Court private parental choice and education rather
grams do not have the primary effect of approved government funding for a deaf than religion (IND CODE § 20-51-4-10).
advancing religion when they are designed child’s interpreter in a religious school even
in a way which (a) neither favors nor disfa- though the government employee would State voucher and education tax credit pro-
vors religion in defining the program’s essentially be a “mouthpiece” for religious grams do not lead to excessive entangle-
beneficiaries, and (b) the state funds reach instruction because the choice to be in ment between the state and participating
the religious institution through the clear attendance at a private school was a deci- sectarian schools when the program allows
private choices of citizens.6 The Supreme sion wholly made by the parents, and, as private schools to operate without exces-
Court held in Locke v. Davey that “under such, the Court held there was no primary sive interference from the state govern-
our Establishment Clause precedent, the effect of the state advancing religion.10 ment. The court has held that when the
link between government funds and reli- public school superintendent is called upon
gious training is broken by the independent to monitor performance, reporting, audit-
7. Locke v. Davey, 540 U.S. 712, 719 (2004);
and private choice of recipients [of the see Zelman v. Simmons-Harris, 536 U.S. ing, nondiscrimination policies, and health
scholarship].”7 The Court in Committee for 639, 652 (2002); Zobrest v. Catalina Foot- and safety requirements in the sectarian
Public Education and Religious Liberty v. hills School Dist., 509 U.S. 1, 13-14 (1993); schools receiving state funds, no excessive
Witters v. Washington Dept. of Servs. for
Nyquist found that a New York statute vio-
Blind, 474 U.S. 481, 487 (1986); Mueller v.
lated the Establishment Clause because 10.Zobrest v. Catalina Foothills Sch. Dist.
Allen, 463 U.S. 388, 399-400 (1983).
financial assistance went exclusively to 11.Rosenberger v. Rector & Visitors of the Univ.
8. Committee for Public Education and Reli-
of Va., 515 U.S. 819, 842-43 (1995).
gious Liberty v. Nyquist, 413 U.S. 756, 783
5. Widmar v. Vincent, 454 U.S. 263, 274 (1981). (1973). 12.See Kotterman v. Killian, 972 P.2d 606 (AZ
6. Agostini, 521 U.S. at 231; Lemon, 403 U.S. 9. Jackson v. Benson, 578 N.E.2d 602 (Wisc. 1999).
at 612; Mueller, 463 U.S. at 396. 1998). 13.See Zelman v. Simmons-Harris.
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 6
entanglement occurs.14 Routine regulatory establishment of religion, or prohibiting
interaction which does not involve inqui- the free exercise thereof” (U.S. Const.
ries into religious doctrine or delegation of Amend. I). Sometimes a state action is per- Other Federal Constitutional
state power to a religious body does not mitted by the Establishment Clause, but
Law Provisions
create excessive entanglement.15 not required by the Free Exercise Clause.16
In applying the Free Exercise Clause in
In addition to the enumerated rights
The provisions of Indiana’s school choice
1972, the U.S. Supreme Court found a
granted by the United States Constitution,
statutes which grant tax credits and tax
compulsory education law which required
the U.S. Supreme Court has interpreted the
deductions plainly avoid excessive govern-
Amish parents to send their children to
Constitution to also protect certain unwrit-
ment entanglement. Indiana Code § 20-51-
school past eighth grade to be in conflict
ten (or “extra-textual”) rights as fundamen-
4-1 (governing Choice Scholarships)
with the Free Exercise Clause because
tal rights. Meyer v. Nebraska synthesized
intends the state to avoid entanglement
attending school after eighth grade was
some of the ways the courts have
with private schools: “… the department or against Amish religious beliefs.17 The
expounded on the meaning of the Four-
any other state agency may not in any way
Court reasoned that “only those interests of
teenth Amendment.
regulate the educational program of a non-
the highest order and those not otherwise
public eligible school...” However, the served can overbalance legitimate claims Without doubt, [the Fourteenth
unprecedented list of requirements added to the free exercise of religion. However Amendment] denotes not merely free-
to Indiana Code § 20-51-4-1 puts the strong the state’s interest in compulsory dom from bodily restraint but also the
Choice Scholarship at risk for excessive right of the individual to contract, to
education, it is by no means absolute to the
entanglement. The IDOE will need to care- engage in any of the common occupa-
exclusion or subordination of all other
fully create a mechanism for ensuring com- interests.”18 tions of life, to acquire useful knowl-
pliance with the statute without entangling edge, to marry, establish a home and
and interfering with the private schools. If It has been argued that parents who, due to bring up children, to worship God
the IDOE simply creates an annual survey lack of funds, are forced to send their chil- according to the dictates of his own
and inspection of a private school, it is dren to public schools, are being hindered in conscience, and generally to enjoy
those privileges long recognized at
unlikely entanglement will be found. But if their ability to practice religion as they see
the Department institutes checks which fit.19 In response, courts have moved away common law as essential to the orderly
pursuit of happiness by free men. The
require state employees to regularly enter from the holding in Wisconsin v. Yoder and
established doctrine is that this liberty
and monitor private schools, the Choice have granted latitude to states by holding
may not be interfered with, under the
Scholarship program could run afoul of the that “valid and neutral laws of general
guise of protecting the public interest,
Federal Establishment Clause. applicability” do not need to be justified by
by legislative action which is arbitrary
a compelling governmental interest even if
or without reasonable relation to some
In short, School Choice programs will
the law has the “incidental effect of burden-
purpose within the competency of the
withstand scrutiny under the Establishment ing a particular religious practice.”20 Indi-
State to effect.
Clause of the U.S. Constitution if they (a)
ana’s school choice statutes are not in
demonstrate a secular purpose such as pro- 262 U.S. 390, 399-400 (1923)
danger of violating the Federal Free Exer-
motion of the education opportunities of
cise Clause because the funding provided One aspect of the liberty protected by the
students, (b) are facially neutral, (c) do not
by the school choice statutes encourage the Due Process Clause of the Fourteenth
create a preference for or against religion,
free choice of parents to enroll students in Amendment is “a right of personal privacy,
(d) grant the benefit to a large class of ben-
any private school, sectarian or secular. or a guarantee of certain areas or zones of
eficiaries without regard to religion, (e) privacy.”21 The right of personal privacy
grant the aid directly to the parents who
includes “the interest in independence in
must then independently choose where to
making certain kinds of important deci-
direct the money, and (f) avoid government sions.”22 Among the decisions an individ-
entanglement.
ual may make without unjustified
government interference are personal deci-
sions “relating to marriage,”23 “procre-
ation,”24 “contraception,”25 and “child
Federal Free Exercise Clause 16.Walz v. Tax Comm’n of City of New York, 397 rearing and education.”26
U.S. 664, 669 (1969).
The Federal Establishment Clause prohib- 17.Wisconsin v. Yoder, 406 U.S. 205 (1972).
its the government from promoting or 18.Id.
excessively involving itself in religion,
19.Locke v. Davey, 540 U.S. 712 (2004); Nor-
while the Free Exercise Clause prohibits wood v.Harrison, 413 U.S. 455 (1973); Eulitt 21.Roe v. Wade, 410 U.S. 113, 152 (1973).
the government from hindering an individ- v. Me. Dep't of Educ., 386 F.3d 344 (1st Cir.
22.Whalen v. Roe, 429 U.S. 589, 599-600
ual’s practice of religion, asserting that 2004). (1977).
“Congress shall make no law respecting an 20.Church of Lukumi Babalu Aye, Inc. v. Hia- 23.Loving v. Virginia, 388 U.S. 1, 12 (1967).
leah, 508 U.S. 520, 531(1993) (holding
24.Skinner v. Oklahoma, 316 U.S. 535 (1942).
unconstitutional a neutral law which, in real-
14.See Jackson v. Benson. ity, only negatively impacted the practice of 25.Eisenstadt v. Baird, 405 U.S. 438, 453-454
15.Id. Santeria religion). (1972).
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 7
Through the imposition of compulsory Public school teachers themselves are no enting desire. Today’s parents may prefer
education laws, some argue parents are pre- longer required to adhere to the strict moral specialized education for their children — a
vented from exercising their fundamental codes required of teachers when compul- classical education, an artistic focus, or
right to rear and educate their children by sory education laws were imposed. multi-age classrooms. Likewise, some
being forced to expose their children to the Although the codes of teacher conduct in modern parents are more global than par-
many influences of the local public school place in 1915 were extreme,29 they none- ents from 100 years ago and may prefer that
(Nasstrom, 1996; Smith, 1999). This argu- theless evidenced the desire of those who world language and multi-cultural instruc-
ment struggles against precedent which wrote them to shelter children from nega- tion play a large role in their children’s rear-
seemingly limits parental rights. “Acting to tive influences during the course of the ing. The scriveners of compulsory school
guard the general interests in youth’s well- school day. In many respects, some schools laws simply could not have begun to realize
being, the state as parens patriae may are no longer able to accomplish this moral the magnitude of diverse parenting styles
restrict the parent’s control by requiring neutrality. Compulsory education laws embraced in today’s society.
school attendance…and the state has a often force parents to broach sensitive top-
Opponents of school choice respond to
wide range of power for limiting parental ics earlier than they might choose.
such arguments by suggesting that a par-
freedom and authority in things affecting
the child’s welfare.”27 Indeed, many state Of course most public schools are not “inju- ent’s fundamental right to raise her child is,
constitutions28 revere education of the pop- rious” to a child, but compulsory education in fact, protected; after all, a parent may
laws do not need to be “injurious” to a child “choose” to send her child to any school of
ulace to such a degree that parental rights
to place a burden on parents’ fundamental her desire and may even choose to home-
are eclipsed by compulsory education laws.
right to parent their child as they desire. school her children. This “choice” is a fic-
At the time of the creation of compulsory
Since the creation of compulsory education tion for single parents and lower- to
education laws, requiring children to attend
laws, parenting styles and lifestyles have middle-class families who do not have the
schools in the face of remaining illiterate
dramatically changed and some parenting funds to pay for private tuition or the ability
was likely the greater societal good when
choices simply cannot be accommodated to stay home and teach their children
balanced against the power of parental
by the public school system. Single-parent (Smith, 1999). This “choice” is reminiscent
rights. But as has been the case with many
homes are especially more common in of the fictional voting rights given to the
evolutions in our country and subsequent
today’s society, and compulsory education poor and minorities in many states prior to
jurisprudence, as society changes, so too
laws all but prohibit the child of a single the enforcement of the Voting Rights Act of
does the balance of the scales.
parent from seeing her parent during the 1965.30 Although a parent’s right to choose
In contemporary society, however, the bal- week if that single parent is employed in a the manner of upbringing of her child is a
ance between the state’s interest in an edu- capacity which requires shift work. A sin- federally protected right, compulsory edu-
cated populace and a parent’s fundamental gle parent who works in the evenings may cation laws, although seemingly benign,
right to choose the best upbringing for her seek out a private school with afternoon or currently have the effect of inhibiting those
child is a much different analysis than that evening hours so that she may have the of lesser means from exercising that right
completed by the scriveners of the compul- ability to exercise her fundamental right to in much the same way that many states
sory education statutes. In modern society, parent her child in the mornings and mean- inhibited the rights of those of lesser means
few schools serve a small, uniform com- ingfully interact with her child each day. from exercising their fundamental right to
munity. Despite the best efforts of school Other parents in today’s culture prefer all
administrators and teachers, today’s organic surroundings for their children. The
30.In 1870, the 15th Amendment gave all
schools can expose children to aspects of local public school may not be willing or United States citizens the right to vote. It was
society which, in some cases, directly con- able to ensure all cleaning supplies, snacks, not until almost 100 years later, with the pas-
tradict their parent’s values. In some and meals are organic, but a small private sage of the Voting Rights Act of 1965, that
attention was finally paid to the burdens
schools, it is not uncommon for a child to school may choose to embrace such a par-
being placed on some citizens to exercise
witness violence, gain unauthorized Inter- their fundamental right to vote. Even as late
net access, observe drug use, and hear as 1959, the U.S. Supreme Court allowed the
29.Rules of Conduct for Teachers in 1915: 1) use of literacy tests, which had the effect of
graphic details of peers’ sexual encounters
You will not marry during the term of your disproportionately hindering the ability of
in the process of a mandatory school day. contract; 2) You are not to keep company the poor and minorities to exercise their fun-
with men; 3) You must be home between the damental right to vote. Finding that “the abil-
hours of 8 p.m. and 6 a.m. unless attending a ity to read and write has some relation to
26.Pierce v. Society of Sisters, 268 U.S. 510,
school function; 4) You may not loiter down- standards designed to promote intelligent use
535 (1925); Meyer v. Nebraska, 262 U.S.
town in ice cream stores; 5) You may not of the ballot.” Lassiter v. Northampton
390, 399 (1923); Roe v. Wade, supra, at 152- travel beyond the city limits unless you have County Bd. of Elections, 360 U.S. at 53.
153. See also Cleveland Board of Education the permission of the chairman of the board; Seven years later, the U.S. Supreme Court
v. LaFleur, 414 U.S. 632, 639-640 (1974). 6) You may not ride in a carriage or automo- finally recognized the effect of the literacy
27.Prince v. Massachusetts, 321 U.S. 158, 166 bile with any man unless he is your father or tests on individuals’ fundamental right to
(1944) (holding constitutional a state statute brother; 7) You may not smoke cigarettes; 8) vote in its application of the Voting Rights
which prohibited children from selling liter- You many not dress in bright colors; 9) You Act. “When a state exercises power wholly
may under no circumstances dye your hair; within the domain of state interest, it is insu-
ature on the streets despite parental permis-
10) You must wear at least two petticoats; lated from federal judicial review. But such
sion).
11) You dresses must not be any shorter than insulation is not carried over when state
28.“Knowledge and learning … being essential two inches above the ankle. http://lang- power is used as an instrument for circum-
to the preservation of a free government …” witches.org/blog/2009/04/05/teacher-code- venting a federally protected right.” S.C. v.
Ind. Const. Art. 8. § I of-conduct-1915/ Katzenbach, 383 U.S. 301, 325 (1966).
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 8
vote. Many, such as U.S. Supreme Court ing decisions are forced to send their chil- tions, all lend support to the constitutional
Justice Clarence Thomas in Zelman v. Sim- dren into a school setting paid for by the validity of Indiana’s school choice statutes.
mons-Harris, suggest that in the post- state, in which the curriculum contradicts
Of the 26 states represented in Table 3
Brown v. Board of Education era, school the parent’s beliefs and parenting style. In
below, 1332 have constitutional provisions
choice is the only means of emancipation fact, Maher cites the reasoning in Pierce v.
that are much more rigid and specific in
for low-income students trapped in failing Society of Sisters that the Fourteenth
their aversion to state funding for private
schools (Holme & Richards, 2009; Holme Amendment’s concept of liberty “excludes
education than Indiana, and therefore cau-
& Wells, 2008; Ryan & Heise, 2002). any general power of the State to standard-
tion should be used when directly compar-
ize its children by forcing them to accept
ing the school choice provisions and case
instruction from public teachers only …
law from these 13 states with Indiana’s
which unreasonably interfered with the lib-
school choice statutes and pending litiga-
erty of parents and guardians to direct the
tion. For example, two states repeatedly
...[many states] have upbringing and education of children under
referred to by the ISTA suit were Virginia
constitutional provisions their control” (268 U.S., at 534-535). Pro-
(Almond v. Day) and New Hampshire
ponents of Indiana’s school choice statutes
which are more rigid and
(Opinion of the Justices), but Virginia’s
would do well to defend the new provi-
specific in their aversion Constitution can be readily distinguished
sions under this aspect of the Federal Con-
to state funding for from Indiana’s: “No appropriation of pub-
stitution.
private education than lic funds shall be made to any school or
Indiana, and therefore We have outlined how Indiana’s school institution of learning not owned or exclu-
choice statutes may be treated under the sively controlled by the State …” Likewise,
caution should be used
Federal Constitution. We now move to pro- New Hampshire's Constitution provides,
when directly comparing
visions of the Indiana Constitution which “… no person shall ever be compelled to
the school choice
may apply to Indiana’s school choice stat- pay towards the support of the schools of
provisions and case law
utes. any sect or denomination.” It is also notable
from [other] states. that, despite the more rigid and specific
constitutional prohibitions on private
school funding in these 13 states, 6 have
Indiana’s Religious Clauses some form of tax credit, deduction, or nar-
row voucher available for private schools.
Opponents of school choice correctly point
Indiana Constitution Article I provides:
out, however, that although states are pro- Of the 12 states represented in Table 3 that
hibited from infringing on a fundamental Section 2: All people shall be secured have constitutional provisions that are, like
right, they are not required to fund funda- in the natural right to worship Indiana’s, somewhat nebulous with respect
mental rights.31 Although it is true that the ALMIGHTY GOD, according to the to private school funding, 8 have some
state is not required to fund a parent’s fun- dictates of their own consciences. form of tax credit or tax deduction avail-
damental right to choose how best to raise able, and 8 have some form of voucher pro-
Section 4: No preference shall be
her child, by imposing a significant, direct, gram available. Wisconsin, although not
given, by law to any creed, religious
and disproportionate burden on lower mentioned by the ISTA suit, has constitu-
society, or mode of worship; and no
income individuals, compulsory education tional provisions similar to Indiana’s. Spe-
person shall be compelled to attend,
laws transcend the holding in Maher v. erect, or support any place of worship, cifically, Article I, Section 18 of
Roe. Maher affirms a state’s right to incen- or to maintain any ministry, against his Wisconsin’s Constitution closely mirrors
tivize one behavior (i.e., attendance at pub- consent. Indiana’s Article I, Section 6: “… nor shall
lic school through payment, healthcare for any money be drawn from the treasury for
birthing a fetus rather than aborting it), but Section 6: No money shall be drawn the benefit of religious societies, or reli-
it fails to address the fact that compulsory from the treasury, for the benefit of any gious or theological seminaries.” At first
attendance laws directly burden a parent’s religious or theological institution. glance, some might suggest the difference
fundamental right to raise a child. Parents Although much media attention has between Indiana’s use of the word “institu-
must educate their children — there is no focused on the possibility that Indiana’s tion” as compared to Wisconsin’s use of the
choice. Parents are required to allow the school choice statutes violate Article I of word “seminary” muddles comparison of
state to impact the development of their Indiana’s Constitution, it appears unlikely these two constitutional clauses. However,
children and required to accept a burden on that the statutes will be struck down based the comparison is quite compelling when
their fundamental right to raise their chil- on Article I of the Indiana Constitution. A consideration is given to how the word
dren. Citizens who do not have means to comparison of 25 state constitutions (see “seminary” was used in the 1800s. The
pay for a school that matches their parent- Table 3) with a specific focus on Wiscon- Oxford Dictionary defines a seminary as:
sin’s and Indiana’s Constitutions, legisla-
tive history, analysis of the word
31.Maher v. Roe, 432 U.S. 464, 475-77 (1977) 32.Arizona, Alaska, Colorado, Idaho, Illinois,
(explaining that the fundamental right to “seminary,” and the fact that public dollars Massachusetts, Minnesota, Mississippi, New
abortion does not entail a companion right to are already spent on sectarian organiza- Hampshire, New York, Pennsylvania, Utah,
a state-financed abortion). and Virginia.
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 9
“a place of education, a school, college, tion that individuals are “compelled” to secular universities, Article I, Section 4 of
university, or the like; often explicitly (cf. support religion simply by paying taxes the Indiana Constitution does not provide a
3a)33 seminary of learning, seminary of sci- which eventually end up in the possession strong basis for opposition.
ence, etc. Also in more specific sense (cf. of a secular school. The logic behind the
3b)34 an institution for the training of those ISTA position battles against the logic of
destined for some particular profession.” Everson v. Board of Education: “… a
Interpreted into modern language, Indi- policeman protects a Catholic … not Equal Education Clause of
ana’s constitution simply states that funds because he is a Catholic, but because Indiana’s Constitution
cannot be granted for the benefit of reli- he…is a member of our society. The fire-
gious institutions, while Wisconsin’s con- man protects the Church school — but not In addition to Indiana, the constitutions of
stitution goes a step further and states that because it is a Church school; it is because at least 13 other states39 require a uniform
funds cannot be granted for the benefit of it is property, part of the assets of our soci- system of public schools (Green & Moran,
religious schools. Despite this hurdle, Wis- ety.”37 An individual, through the simple 2010). Opponents of school choice tend to
consin’s school choice program was found act of paying taxes (which are then filtered cite a recent Florida Supreme Court deci-
to be in compliance with its constitution. In through the private choices of other indi- sion, Bush v. Holmes, where a statewide
Jackson v. Benson, the Wisconsin Supreme viduals) is not being “compelled” to sup- voucher system was found unconstitutional
Court determined that money was drawn port a religious institution for the purposes due to the Florida Constitution’s Equal
from the Wisconsin treasury for the “bene- of Indiana’s Article I, Section 4 — the indi- Education Clause. Aside from being a
fit” of education — not for the “benefit” of vidual is merely being “compelled” to sup- much-debated decision in its own right, the
religion. As such, the Milwaukee Parental port education as chosen by the child’s Bush decision is not applicable to Indiana’s
Choice Program did not violate the Wiscon- parent. It is significant that the state of constitutional analysis of the school choice
sin Constitution.35 Because Indiana Consti- Indiana has been directly funding sectarian statutes. Florida’s Constitution, although
tution Article I, Section 6 is so similar to organizations for many years in the form of similar, utilizes much stronger language
Wisconsin Constitution Article I, Section private secular universities, group homes upon which the Bush court chose to base its
18 and arguably sets a lower standard than for troubled youth, and family services decision: “…a paramount duty of the state
Wisconsin’s Article 18, it appears unlikely providers (see Department of Child Ser- [is] to make adequate provision for the edu-
the Indiana school choice statutes will be vices Provider directory located at http:// cation of all children residing within its bor-
found unconstitutional based on Indiana www.in.gov/dcs/2608.htm). The support ders…[the state is required to provide] a
Constitution Article I, Section 6. given to sectarian schools through the uniform, efficient, safe, secure and high
school choice statutes is actually less quality system of free public schools.”
Wisconsin also has a “compelled support
offensive to Article I, Section 4 than, for (FLA. CONST. art. IX §I(a)). The Bush
clause” similar to Indiana’s Article I, Sec-
example, foster care per diems, which court asserted that the word “paramount”
tion 4. The Wisconsin Supreme Court also arrive at sectarian foster agencies38 purely indicated that the duty to create a uniform
interpreted Wisconsin’s “compelled sup-
through state-actors’ decisions. Unless school system was not something that could
port clause” in Jackson and indicated that
opponents of school choice in Indiana also be delegated in any way to any entity.40
as long as people were not being forced to
wish to dismantle private secular foster Critics of the Bush decision (including the
participate in religious activities at secular
care funding, private secular health provid- dissenting justice) argue that the Florida
schools or forced to attend the secular
ers funding, and state subsidies for private Supreme Court majority overextended the
schools, the “compelled support clause”
language of the Florida Constitution in its
was not violated. Including Wisconsin and 36.The ISTA lawsuit references Indiana’s
decision, believing instead that the Florida
Indiana, there are at least eight states with Embry v. O'Bannon, as well as cases from
voucher program was constitutional
“compelled support clauses” coupled with Vermont, Virginia, New Hampshire, and
Iowa in support of its “compelled support” because it did not prevent the legislature
a history of school choice litigation or leg-
argument. See Table 3 below for a compari- from creating the voucher system as a sup-
islation. Table 3 below summarizes the leg-
son between Indiana’s Constitution and the plement to an already adequately function-
islation, case law, and applicable constitutions of the states referred to by ing public school system.41
constitutional provisions of school choice ISTA.
states. Of the eight states listed below with 37.Everson v. Board of Education, 330 U.S.1,
“compelled support clauses,” only two 25 (1947).
have language which is comparable to 38.For example, White’s Residential & Family
Indiana and also agree with ISTA’s36 asser- Services is a residential treatment facility
and foster care provider for the state of Indi-
ana that directly receives state funds and
openly professes on its website to be a
33.“...a place of origin and early development; a
“Christ-centered organization committed to
place or thing in which something (e.g., an
enriching the lives of children and fami-
art or science, a virtue or vice) is developed 39.Colorado, Florida, Idaho, Minnesota,
lies…[and has a]…primary core value…to
or cultivated, or from which it is propagated Nevada, New Mexico, North Carolina,
model God’s grace and love…” Children
abundantly.” North Dakota, Oregon, South Dakota, Wash-
sent to White’s Residential & Family Ser-
ington, Wisconsin, and Wyoming.
34.“a place, country, society, condition of
vices against their will by the state of Indiana
things, or the like, in which some particular 40.Bush v. Holmes, 919 So. 2d 392 (Fla 2006).
are required to attend religious services dur-
class of persons are produced or trained.” ing their stay regardless of personal beliefs. 41.120 Harv. L. Rev. 1097, 1100 (February,
35.Jackson, 578 N.E.2d at 621. See www.whiteskids.org. 2007).
SCHOOL CHOICE ISSUES IN INDIANA: SIFTING THROUGH THE RHETORIC — 10