Indiana’s school voucher program does not violate the state constitution, a state court ruled January 13.

In 2011, the Indiana General Assembly created the Choice Scholarship Program.  Qualifying families receive vouchers, which they may redeem at private schools, both secular and religious.  A collection of taxpayers sued, alleging that the program violated three provisions of the Indiana constitution.  The Marion County Circuit Court granted summary judgment to the defendants on all three claims.

The court first held that the program did not violate Article 8, Section 1 of the Indiana Constitution, which requires the state General Assembly to “encourage, by all suitable means, moral, intellectual, scientific and agricultural improvement” and to “provide, by law, for a general and uniform system of Common Schools.”  The court reasoned that the imposition of this latter duty did not preclude the legislature from satisfying the first duty through means other than the public school system.

The court then held that the program did not violate Article 1, Section 4, which forbids “compelled support” of houses of worship and other ministries.  The court observed that this provision was primarily designed to protect citizens from forced tithing.

Finally, the court rejected the plaintiffs’ contention that the Choice Scholarship Program violated Article 1, Section 6 of the Indiana Constitution, which declares: “No money shall be drawn from the treasury, for the benefit of any religious or theological institution.”  The court observed that the money in question was not “for the benefit of any religious  or theological institution,” but instead for the benefit of parents and children exercising educational choice.  Any benefits religious schools received were merely “incidental” to the accomplishment of the state’s educational goals.

Significantly (for Christ-centered colleges and universities and their students), the court observed that a contrary reading of Article 1, Section 6 would jeopardize higher education tuition assistance programs that allow students to direct their aid to religious colleges and universities.
The Alliance Defense Fund and its allied attorneys represent certain of the Christian schools participating in the program.  An appeal is expected.

Starting this school year, Indiana offers Hoosier families a sweeping variety of school choice options.  Despite recent efforts by the state’s largest teachers’ union, those options remain in place pursuant to a ruling Monday.  The Indiana Choice Scholarship Program now provides financial assistance for qualifying families to attend any primary school of their choice within the state.  In some situations, that scholarship covers nearly the entire cost of tuition.  This program is the latest in a long line of reforms within the state over the last decade, including the addition of charter schools and providing for payment of transfer tuition.

Hoosier families should be able decide for themselves what school best suits the educational needs of their children and whether to attend their local public school, transfer to another public school, attend a charter school, or attend a private school.  For those families in financial need, the Choice Scholarship Program is available and allows the parents to direct where their money goes.

Even though such a policy allows families to make the best educational choice for their children, it draws the ire of those who seek to eradicate any potential religious exposure to school-age children.  Because some families may decide that the best educational opportunity for their child is at a religious school, you guessed it, the legal challenge of Meredith v. Daniels was born with the support of the leadership of the Indiana teachers’ unions and the National Education Association.

Although the Choice Scholarship Program won the first in what is sure to be multiple rounds in this contest, what truly is alarming are the potentially devastating effects if the challengers prevail.  The scholarship program is under attack because some religious schools may “benefit” if parents choose to use the scholarship money to send their children to the school.  That has been rejected for now, and families can decide to send their children and their money to any school that they believe is best for their children.  But, if this lawsuit is successful on appeal, families without financial means will have nearly no choice in deciding the best education for their children.

Even worse, a ruling striking down the Choice Scholarship Program could possibly have a much broader impact.  Consider the thousands of college students who have earned scholarships (such as the ones offered by the Twenty-First Century Scholars Program) or who have qualified for grants (like the Frank O’Bannon Grant Program) from the State of Indiana.  Would those students be prohibited from attending the college of their choice merely because the college is religious?  Or consider the effect upon the tens of thousands of patients who receive state-provided medical insurance coverage.  Will those patients be denied the medical care best for their health and recovery simply because they seek to be cared for at religious-affiliated hospitals?

Families who receive scholarship or other financial aid from the state should be allowed to decide what educational program is best for their children.  Allowing religious schools to participate in a program on an equal basis like non-religious schools is a decision that would make the Rev. Harry Hoosier  proud.  That’s a history lesson everyone should learn.

I have written an op-ed piece supporting the Supreme Court’s recent decision dismissing the challenge to Arizona’s tuition tax credit program, which Human Events published today. The article explains why the Supreme Court correctly dismissed the ACLU’s deficient lawsuit because the ACLU came to court representing taxpayers who had suffered no harm from Arizona’s school choice plan:

The Supreme Court’s decision to throw out the challenge to Arizona’s tuition tax credit plan gives needed breathing room to that state’s emerging and innovative school-choice system.  It also imposes common-sense requirements on opponents of school choice, including the American Civil Liberties Union, which now must come to court with people who have been actually harmed by the tax credit plan, and have more than just generalized complaints against it based on extreme notions of “separation of church and state.”

Arizona’s tuition tax credit program is just one part of the state’s bold school-choice plan to empower parents with the opportunity to select the best schools for  their children.  Arizona families can send their children to a vast array of charter schools that specialize in everything from drama to the classics to math and science.  Home schooling flourishes with minimal state regulation, and home-school students can participate in extracurricular offerings, such as band or sports, at nearby public schools.

And Arizona helps parents who believe private schools are best for their children by offering a state income tax credit to individuals who voluntarily donate to school tuition organizations that award scholarships to students attending private schools.  But the ACLU objected to this because the law allowed the organizations to choose to give scholarships to students attending religious schools as well as other private schools.  The ACLU sued, and won in a lower court before the Supreme Court threw out its lawsuit.  The reason?  The ACLU’s clients suffered no injury from the Arizona plan.

Under Article III of the Constitution, everyone coming to federal court must show that the government action they challenge has harmed them directly.  Generally, taxpayers cannot show any specific harm inflicted on them by a government program, so courts dismiss their lawsuit.

But back in the 1960s, the freewheeling Warren Court granted an exception to allow taxpayers to bring lawsuits based on the First Amendment’s Establishment Clause.  Since then, the ACLU and its secularist allies have rounded up taxpayers who oppose some government program that does not ban religious groups’ participation, then filed lawsuits claiming that the Establishment Clause requires those programs to shut out the religious groups.

Last Monday, the new Mayor of Washington, D.C., Vincent Gray, was arrested for impeding traffic when he and others staged a protest by blocking Constitution Avenue near the Senate office buildings. They did their acts of civil disobedience to protest two provisions in the budget agreement reached by President Obama and the Republican leadership in Congress last weekend.

The first provision prohibits the District of Columbia from spending its own tax money to fund poor women’s abortions. The second provision requires the D.C. government to give vouchers to poor children so they can afford to attend private schools (Congress gave extra money to D.C. to pay for the vouchers, so D.C. would not have to spend its own tax money).

Mayor Gray called these two congressional mandates unjust impositions on the rights of D.C. residents to govern themselves. He opposes as morally wrong the constitutional provision that gives Congress ultimate control over the District of Columbia. Mayor Gray’s statements and actions show some major confusion about what is a genuine act of “civil disobedience,” and moral confusion concerning how the concept of justice applies to abortion and school choice for poor families.

1. There is a difference between civil disobedience and a publicity stunt.

True civil disobedience occurs when a person chooses to violate an unjust law because the person’s conscience compels him or her to obey a higher moral law. Examples include Rosa Parks refusing to move to the back of the Montgomery bus, in direct violation of the segregation laws. Daniel in the Old Testament prayed to God in violation of the law allowing prayer only to the emperor, and landed in the lions’ den as punishment. An American father and mother circa 1983 who believed God called them to home school their children risked arrest because they violated their state’s compulsory attendance laws which did not allow it. St. Valentine suffered death when he continued to conduct marriage ceremonies in violation of the Roman emperor’s prohibition on marriage, according to tradition. Those are genuine acts of civil disobedience by people deciding to obey God’s law rather than an unjust, man-made law.

What Mayor Gray did was of a different, and lesser category. He did not engage in true civil disobedience because he has no moral objection to D.C. traffic laws that prohibit people from blocking the streets. He and his supporters disrupted traffic to draw attention to what they objected to in the Obama/Congress budget deal, that imposes two requirements on D.C. without any input from the D.C. government. Stopping traffic has nothing to do with that. So this was more of a publicity stunt than a true act of civil disobedience.

I hope Mayor Gray and the other protestors do not view themselves as on the same high moral plane as Corrie ten Boom defying Nazi laws by hiding Jews to save them from the death camps, or abolitionists violating the federal Fugitive Slave Act by helping slaves flee to freedom via the Underground Railroad. Mayor Gray did get the headlines and presented good photo ops to the press. His objections to congressional control over the District are a legitimate issue for discussion and debate, but it is not “civil disobedience.” Let’s not water down the vitality of true civil disobedience in which people of conscience choose to disobey truly immoral laws, by drawing a false equivalency to what Mayor Gray did by blocking traffic.

2. A law prohibiting tax funded abortions is not an unjust law.

Mayor Gray, here is a piece of advice (and I am sure you regularly read this popular blog): You lose a lot of support when you tie a pro-abortion position with your advocacy for changing the Constitution to end Congressional control over the District of Columbia. You complicate the issue of D.C. governance by linking it to forcing unwilling taxpayers to fund the clear moral evil of abortion. Many who might be open to your ideas are turned off if the main result of agreeing with you would be more abortions in D.C. To tell poor women dealing with unwanted pregnancies that their problems will be solved with government-funded abortions is a tragic deception and morally wrong.

3. A law giving school vouchers to the children of poor families is not an unjust law.

Again, Mayor Gray, here’s some advice: If you want support for freeing the District of Columbia from Congressional control, don’t tie it to denying poor people the financial means to choose a private school as the best place to educate their children. The budget agreement from last weekend resurrects the very popular D.C. school voucher program. It empowers parents to direct the upbringing of their children. Tragically, the D.C. voucher program was one of the very few federal programs President Obama eliminated when he entered office in 2009. Mayor Gray, you hamper people’s ability to agree with your desire to end Congressional oversight of the District of Columbia when one of the first things you want to do is to deny poor families the financial ability to choose to attend private schools.

Self-rule for the District of Columbia is an important topic for consideration, but many will find it difficult to support if it means more abortions and fewer children able to attend private schools.

     In a significant victory for school choice, the Supreme Court today dismissed the lawsuit by the American Civil Liberties Union challenging Arizona’s tuition tax credit program, which gave a tax break to those who contribute for private scholarships for students attending private schools, including religious ones. The Supreme Court ruled that the ACLU’s taxpayers lacked standing to come to federal court and challenge the plan as violating the Establishment Clause because the tax credit program inflicted no harm on the taxpayers. You can read the Supreme Court’s decision in Arizona Christian School Tuition Organization v. Winn here.

     The Alliance Defense Fund represented the private organization in Arizona that the case is named after, the Arizona Christian School Tuition Organization.  ACSTO distributes scholarship funds to various Christian schools in Arizona.  ACSTO intervened in the lawsuit after the ACLU sued the State of Arizona. David Cortman, who led ADF’s defense of the Arizona plan, writes about the victory here.

     Today’s decision significantly limits the ability of extreme separationist groups like the ACLU to challenge school choice programs, because they must now find people actually harmed by a state’s or city’s school choice plan, and not rely on objectors who merely pay taxes in the state. and have only generalized objections to the program.   The Supreme Court ruled that the government does not spend government funds on a tuition tax credit program.  The donations are made by the private choices of individual people, using their own money, the Supreme Court ruled. Taxpayers are not harmed by private individuals deciding how to donate their own money.

     This significant ruling may encourage other states to pass their own Arizona-like school choice programs because it will now be more difficult for groups like the ACLU to mount attacks against the programs.  This is good news for parents with children in substandard school looking for educational alternatives.

     Special shout outs go to David Cortman and Jeremy Tedesco who worked so hard on this case. Way to go David and Jeremy!  We went to law school dreaming of days like today. 

       Also, special praise goes to Acting Solicitor General Neal Katyal of the Obama Administration for his principled and eloquent defense of Arizona’s system, and his strong agreement with ADF that ACLU taxpayers lacked standing. Way to go, Neal!

      My favorite line from Justice Kennedy’s majority opinion: “Private bank accounts cannot be equated with the Arizona State Treasury.”

   For more information about the case, please go to the ADF Media page on the case here.