Louisiana Supreme Court Finds Funding for School Voucher Program Unconstitutional-What Now?

Last week the Louisiana Supreme Court ruled that
the funding mechanism for Louisiana’s new school voucher program was in fact
unconstitutional. Louisiana’s school voucher program gained national attention
in 2012 as it would have potentially become the largest state-funded voucher
program in the country, making over half the state’s public school students
eligible to receive state-funded vouchers to attend private and parochial
schools. Last week’s ruling by the Louisiana Supreme Court did not find the
program itself to be unconstitutional, but that the funding mechanism for the
program violated the state constitution.

Brief History of the Voucher

In 2012, Louisiana’s state legislature passed a sweeping
education reform bill which had significant implications for public and private
school options available to families in the state. The new law instituted the
largest statewide school voucher program in the country. In defense of the
reforms, Louisiana’s state superintendent of education John White said Governor
Jindal’s interest was not in creating a voucher school system for the state,
but in creating “a system of choice and completion, one based on the decisions
and needs of families” (Cavanagh, 2012, p. 15). Under this reform, eligible
children include those who attend a school that received a grade of C, D, or F
on the state’s school grading system, and who live in a household with an
annual income up to 250% of the poverty line (currently $57,625 for a family of
four). Under the law, more than half of the state’s public school students
would be eligible to receive a state-funded scholarship which could be used to
pay for tuition and fees at private and parochial schools across the
state—including church-based schools that integrate biblical references into
the curriculum, and for individual courses offered by a menu of public and
private providers including online options. Education policy professor Chris
Lubienski called Louisiana’s inclusion of funding provisions for individual
course options a new dynamic in state education policy, reflective of choice
advocates position that parents should have greater control over “the portion
of the market they use” (Cavanagh, 2012, p. 17).

A group of plaintiffs, including most notably, the Louisiana
Federation of Teachers, brought suit against the Jindal administration on the
grounds that the law was in violation of the Louisiana state constitution. In
December 2012, a state judge sided with the plaintiffs, declaring the state’s
highly contested new voucher program unconstitutional. The court ruled that
Louisiana’s school funding formula, the Minimum Foundation Program (MFP), was
intended to be used exclusively for public schools. The governor appealed the
court’s ruling and expressed optimism that on appeal the decision would be
reversed; but as we saw last week, the Louisiana Supreme Court ruled that the
funding method for the state’s voucher program was in fact unconstitutional.

Looking Forward

Whether you are a choice policy advocate or not, it is pretty
clear that Louisiana’s MFP was not intended to fund non-public schools through
a voucher program as proposed by the new law. Whether we believe the state’s
funding program ought to be able to fund such a program is a different story
altogether; but the plain reality here is that Louisiana’s MFP was not set up
to do it.

So where do Louisiana choice advocates go from here? Well,
the Louisiana Supreme Court’s ruling poses a pretty substantial hurdle for Louisiana
choice advocates. The state’s much smaller voucher program in New Orleans had
been paid for out of the state’s general fund, avoiding any potential issues
with the MFP. But I believe there is a low likelihood that the state will fund
a statewide voucher program out of the state’s general fund; at least not at
the scale that the program was initially intended to be. Potentially, a
massively scaled-down version of the program could be added to the state
budget, but getting it passed would be test of wills for the Governor and his
supporters in the legislature.

For now, there are questions surrounding both the dollars
that have been dispersed to public and parochial schools over the last year
under the law through the MFP, and the future of the voucher program. The
Louisiana Association of Educators has said that Governor Jindal should be
responsible for getting those funds back from private and parochial schools,
and they have vowed to go to court to force the governor to do so if he
refuses. Adding to the controversy, approximately 8,000 students have been
approved to receive state-funded vouchers under the program for the coming
school year. Where are those funds going to come from? I don’t know, but State
Superintendent John White has said that the program will continue. And even with
the court’s ruling, the program may legally continue. The court found the
funding mechanism and not the actual program to be unconstitutional. Louisiana’s
voucher program may continue; Governor Jindal just has to find a constitutional
way to pay for it.

Mississippi’s New Charter School Law

In April 2013, Mississippi Governor Phil Bryant signed into
law the Mississippi Charter Schools Act of 2013, which makes relatively
significant changes to the state’s charter school law. Mississippi’s charter
school law up to now has been rated by charter school advocates, including the
Center for Education Reform (CER), as the weakest charter school law in the
nation; ranking last of all of 42 state charter school laws currently on the
books. Mississippi’s law has ranked so low largely because it is so restrictive
of charter schools. For example, the state’s law provided only for conversion
charter schools; start-up charter schools were not permitted under the law.
Only the most challenged traditional public schools in the state could potentially
qualify for charter school conversion; only a total of 12 charter schools could
be established; and even though the law was passed in 2010, no charter schools
could be established before the 2012-13 academic year. As such, even with the
law on the books, Mississippi currently has no charter schools in operation. For
anyone interested in additional specific details on the provisions of the state’s
old charter school law, I provide additional details on the law in a section below
(The Old Law: Mississippi Charter Conversion Act of 2010).

Here are a few noteworthy elements of Mississippi’s new charter
school law:

  • The law creates a Charter School Authorizer Board
    which has “exclusive chartering jurisdiction in the State of Mississippi,” and may
    approve up to 15 charter schools per fiscal year. The new board will have the responsibilities
    of reviewing applications, approving or rejecting applications, entering into
    charter contracts with approved applicants for charter schools, overseeing
    charter schools, and making charter renewal and/or revocation decisions. The
    board is to consist of seven members, with three members appointed by the Governor,
    three members appointed by the Lieutenant Governor, and one member appointed by
    the State Superintendent of Public Education.
  • Both conversion and start-up charter schools
    may be authorized. The law prohibits, however, the conversion of private
    schools into charter schools.
  • For the conversion of traditional public schools to
    charter schools
    , applicants must “demonstrate support for the proposed
    charter school conversion by a petition signed by a majority of teachers or a
    majority of parents of students in the existing noncharter public schools, or by a majority vote of the local
    board, or in the case of schools in
    districts under state conservatorship, by the State Board of Education.”
  • “In any school district designated as an A, B,
    or C school district by the State Board of Education under the accreditation
    rating system, the Mississippi Charter School Authorizer Board may authorize
    charter schools only if a majority of the members of the local school board
    votes at a public meeting to endorse the application or to initiate the
    application on its own initiative.”
  • Approved charter school schools may delay its
    opening for one year for the purposes of planning and preparation. The school
    may petition the authorizer for a period of longer than one year for planning
    and preparation before opening.
  • Charter schools must be open to any student
    living within the boundaries of the school district within which the charter
    school is located. School districts may not require any student to attend a
    charter school.
  • The “underserved student” enrollment of a
    charter school must be reflective of the students attending the school district
    in which the charter school is located, but must be at least 80% of the total student
  • ·        
    At least
    25% of a charter school’s initial teaching force must meet all state certification requirements, but all teachers at a charter school are required to meet state
    certification requirements by the school’s third year of operation. School administrators are not required to meet state licensing requirements.

  • Charter school employees are not subject to state salary requirements.
  • Charter school employees are not eligible for participation in the state’s Public Employees’ Retirement System.
  • The new law goes into effect July
    1, 2013
    . The Charter School Authorizer Board is expected to issue a
    call for charter school applications by December 1, 2013.


The Old Law: Mississippi
Charter Conversion Act of 2010

As of January 2013, Mississippi had no charter school in
operation. The Center for Education Reform (CER) graded Mississippi’s law as an
F in 2012, awarding it a total 1 out of 55 points. Of note, the Mississippi
state legislature passed new charter school legislation in April 2013. This
discussion, however, is of Mississippi’s charter school law as of January 2013.
The law was passed initially in 2010 as the Charter Conversion Act of 2010. It
defined a conversion charter school as “a public school that has converted to
operating under the terms of a contract entered into between the local
management board of a conversion charter school and the State Board of
Education.” Start-up charter schools may not be authorized under this law.The
State Board could approve up to 12 conversion charter schools from 2010 until
2016, and no more than three petitions for charters in each of the state’s four
congressional districts could be approved. No conversion charter schools were
to begin operations before July 2013.

The Mississippi State Board of Education was authorized to
issue contracts for conversion charter schools for a minimum three-year term,
and could renew conversion charter school contracts for up to three years
provided that “all parties to the original contract” approve renewal with a
majority vote of parents or guardians of students enrolled in the school.
However, after three years as a conversion charter school, parents or guardians
of students enrolled in the school could request that conversion charter school
status be removed from the school by submitting a petition to the State Board
of Education with the support of over 50% of the school’s parents or guardians.

Mississippi’s conversion charter schools were to function as
traditional public schools in most ways. They were to continue receiving
funding and are provided with transportation services in the same manner that
these were provided before receiving conversion charter status. In addition to
state and local funding, the law permits conversion charter schools to receive
additional funds from other public or private sources. In fact, the law goes to
great lengths to make it quite clear that conversion charter schools may
receive funds from the federal Race to the Top program. The following excerpt from
the law strongly suggests that the passage from the law was in large part an effort to win federal Race to the Top

It is the intent of the Legislature
that in accordance with the conditions of federal funding under the federal
“Race to the Top” program, public schools converted to conversion charter
school status in Mississippi are authorized to operate conversion charter and
autonomous public school programs that are high-performing. It is further the intent
of the Legislature that public schools converted to conversion charter schools
receive equitable state and federal funding compared to traditional public
schools, as required by the federal “Race to the Top” program, and that the
state shall not impose any school facility-related requirements on conversion
charter schools which are more restrictive than those applied to traditional
public schools.

Children in the attendance zone of a conversion charter
school prior to the conversion would continue to attend the conversion
charter school after the conversion. The schools were to be open to transfer
students from other schools only if openings were available.