Louisiana’s top court next month will hear the state’s appeal of a Baton Rouge judge’s ruling that Louisiana’s expanded voucher program, along with another key legislatively approved piece of Gov. Bobby Jindal’s public school overhaul plan, unconstitutionally divert public funds to private and parochial schools.
The state Supreme Court is scheduled to entertain oral arguments at 2 p.m. March 19 in New Orleans.
State District Judge Tim Kelley’s Nov. 30 ruling came at the end of a three-day trial of consolidated lawsuits, filed by Louisiana’s two largest teacher unions and the state’s school boards association, challenging the legality of Act 2 and Senate Concurrent Resolution 99 — both of the 2012 legislative session.
Act 2 is the so-called voucher bill, and SCR 99 is the Minimum Foundation Program resolution.
Public school aid in Louisiana goes through the MFP formula. This year, it provides some $3.4 billion in basic state aid for school operations and students statewide.
Under Act 2, students who attend public schools rated C, D or F under the state accountability system and who meet income rules can apply for state aid to attend private or parochial schools. The vouchers provide aid to cover tuition and mandatory fees at private and parochial schools. Those schools collect an average of $5,300 per student from the state.
The new expanded program began with the start of the school year in August. Before the new law, the state offered vouchers only to certain students in New Orleans.
Jimmy Faircloth, an attorney who represents the state in the case, said the state is asking the Supreme Court to find Act 2 and the 2011-12 MFP constitutional “in all respects.”
“The trial court correctly found that Act 2 was properly enacted and that the MFP was properly approved, but mistakenly interpreted the constitutional article providing for the MFP,” Faircloth said.
“The constitution gives (the Board of Elementary and Secondary Education) broad authority to develop a formula that shall provide for a minimum foundation for public education and the fair allocation of funding to the public school districts,” he added. “This MFP accomplishes that mandate, while factoring the cost of other publicly supported programs into the formula. This is clearly constitutional, and it is good policy. When BESE and the Legislature debate public funding of educational programs, all programs should be on the table at the same time.”
The Virginia-based Institute for Justice, which represents the families using the voucher program, also is defending the program in court.
“Our goal with the (high) court will be to focus on the simple fact of the case: The state’s effort to bring a lifeline to kids in failing schools through the Minimum Foundation Program is absolutely consistent with the Louisiana Constitution,” said Bill Maurer, an attorney with the Institute for Justice.
“So long as the state provides the minimum foundation to public schools, it can bring all state educational spending into one mechanism so the state can address the needs of all Louisiana kids in one place,” he said.
Kelley agreed with the Louisiana Federation of Teachers, the Louisiana Association of Educators and the Louisiana School Boards Association and ruled that Act 2 and SCR 99 unconstitutionally divert to nonpublic entities “MFP funds that are constitutionally mandated to be allocated to public elementary and secondary schools.”
The judge also said the act and concurrent resolution unconstitutionally divert to nonpublic entities “local funds included in the MFP that are constitutionally mandated to be allocated” to public schools. Local funds refers to tax dollars.
“We move forward knowing that we are working towards protecting the 98 percent of Louisiana families who opted not to take part in the voucher program,” LAE President Joyce Haynes said. “We need to ensure that the funds in question are used to improve students’ educational experiences in the public school system. It’s really unfortunate that the state continues to spend money on something that’s already been declared unconstitutional.”
Scott Richard, executive director of the LSBA, said the association “certainly feels as if Judge Kelley was right on target with the ruling on the MFP funding issue.”
“It was created to address funding to public education, and never intended to provide for taxpayer dollars for non-public schools or programs,” he said. “Judge Kelley’s 30-plus page opinion was very well-reasoned, clear and concise on the funding concerns, and we are hopeful that the Supreme Court will be as fair, objective and thorough in their consideration of the matter.”
Kelley has said his ruling “does not propose to foreclose the State from establishing educational programs that are funded outside the constitutional limitations of the Minimum Foundation Program.”
Attorneys for the state and school-choice advocates have said his decision will not have an effect this school year on the nearly 5,000 public school students statewide who qualified for vouchers to attend private or parochial schools.
Jindal has called Kelley’s ruling “a travesty for parents across Louisiana who want nothing more than for their children to have an equal opportunity at receiving a great education.” The governor said the decision “sadly ignores the rights of families who do not have the means necessary to escape failing schools.”
The lawsuits by the LFT, LAE and LSBA were filed against the state Department of Education and the state Board of Elementary and Secondary Education.
The LFT, LAE and LSBA also claim state lawmakers did not follow the constitutional requirements for filing and passing the education programs and their funding.
Lawmakers agreed to the voucher program and other education changes pushed by Jindal in their 2012 regular session as a way to improve student achievement. Teachers repeatedly protested at the State Capitol, but the measures were fast-tracked through the Legislature by Jindal allies.
Education Superintendent John White has said the department strongly disagrees with Kelley’s ruling and is optimistic it will be reversed.
Jindal and White contend the voucher program is helping thousands of children get a better education than they would have received in the public schools they left.